Court of Appeals of Ohio, Seventh District, Mahoning
OF PROCEEDINGS: Criminal Appeal from the Court of Common
Pleas of Mahoning County, Ohio Case No. 16 CR 599
Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County
Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting
Defendant-Appellant: Atty. Christopher P. Lacich Roth, Blair,
Roberts, Strasfeld & Lodge, LPA
Cheryl L. Waite Hon. Gene Donofrio Hon. Carol Ann Robb
Appellant Rolando Pena Gomez appeals the conviction and
sentence of the Mahoning County Court of Common Pleas
following his plea of guilty to three counts of trafficking
in cocaine, one count of trafficking in heroin and one count
of possession of heroin as well as a forfeiture specification
that involved a motor vehicle. Appellant contends his plea
was not made knowingly, intelligently and voluntarily and
that he should be permitted to withdraw his plea. Appellant
also asserts his trial counsel was ineffective for failing to
seek a withdrawal of his guilty plea. Based on the following,
we find Appellant's guilty plea was knowing, voluntary
and intelligent and his sentence was not clearly and
convincingly contrary to law. Moreover, trial counsel was not
ineffective as Appellant has failed to establish that
counsel's performance was deficient and that Appellant
was prejudiced. Therefore, the judgment of the trial court is
and Procedural History
Appellant was indicted on a number of drug-related offenses
relating to the possession and trafficking of cocaine and
heroin. Appellant was aided by an interpreter throughout all
trial court proceedings as he speaks only Spanish. On October
6, 2016, Appellant pleaded guilty to counts one, two, and
three, trafficking in cocaine in violation of R.C.
2925.03(A)(1), (C)(4)(f), felonies of the first degree; count
four, trafficking in heroin in violation of R.C.
2925.03(A)(1), (C)(6)(f), a felony in the first degree; and
count six, possession of heroin in violation of R.C.
2925.11(A), (C)(6)(e), a felony in the first degree; with a
forfeiture specification pursuant to R.C. 2981.
An initial sentencing hearing was held on December 1, 2016.
The state recommended a term of eight to ten years of
incarceration. Appellant's counsel asked for a three-year
sentence. At the sentencing hearing, there was some
discrepancy regarding the presentence investigation
("PSI") report. The PSI contained no prior criminal
history but the prosecutor said he was aware Appellant served
a prior federal prison sentence on drug-related charges. The
sentencing was postponed pending a review of Appellant's
prior criminal history.
Sentencing resumed on December 8, 2016, and a discussion
regarding Appellant's criminal history was held. The
updated PSI reflected that Appellant had been convicted of
numerous misdemeanors in other jurisdictions and had two
prior felony convictions. (12/8/16 Sentencing Hrg. Tr., p.
5.) Appellant's counsel again requested a shorter term
than the eight to ten years recommended by the state.
Appellant, through the interpreter, gave a statement where he
discussed the death of both parents when he was a child and
his struggle with substance abuse.
After noting Appellant's prior criminal history, his
addiction, and the large amount of cocaine and heroin
confiscated in the instant matter, the trial court sentenced
Appellant to eight years on each count to be served
concurrently, for a total prison term of eight years.
Appellant filed this timely appeal.
OF ERROR NO. 1
TRIAL COURT ERRED AND IMPOSED A SENTENCE CLEARLY AND
CONVINCINGLY CONTRARY TO LAW, BY FAILING TO CALL A RECESS OR
MAKE FURTHER INQUIRY AS TO WHETHER DEFENDANT-APPELLANT WANTED
TO WITHDRAW HIS GUILTY PLEA TO COUNTS ONE, TWO, THREE, FOUR
AND SIX, UPON HIS STATEMENT ON THE RECORD AT HIS SENTENCING
HEARING, THAT HE MISUNDERSTOOD THE TERMS OF HIS RULE 11 PLEA
AGREEMENT AND/OR THAT HE WAS INNOCENT OF COUNT SIX,
TRAFFICKING IN HEROIN.
It should be noted that in reviewing a felony sentence,
"an appellate court may vacate or modify a felony
sentence on appeal only if it determines by clear and
convincing evidence that the record does not support the
trial court's findings under relevant statutes or that
the sentence is otherwise contrary to law." ...