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State v. Rodriguez

Court of Appeals of Ohio, Tenth District

December 19, 2017

State of Ohio, Plaintiff-Appellee,
Victor R. Rodriguez, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas No. 15CR-2107 BROWN, J.

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Valerie Swanson, for appellee.

         On brief:

          Jeremy A. Roth, for appellant.


          BROWN, J.

         {¶ 1} This is an appeal by defendant-appellant, Victor R. Rodriguez, from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas following his entry of an "Alford"[1] plea of guilty to attempted gross sexual imposition.

         {¶ 2} On April 28, 2015, appellant was indicted on one count of rape, in violation of R.C. 2907.02, and one count of sexual battery, in violation of R.C. 2907.03. Appellant entered a plea of not guilty, and the matter was set for trial before a jury.

         {¶ 3} On November 29, 2016, the trial court conducted voir dire proceedings. On November 30, 2016, appellant appeared before the trial court and entered an Alford plea of guilty to the stipulated lesser-included offense to count one, attempted gross sexual imposition, in violation of R.C 2907.05 and 2923.02.

         {¶ 4} During the plea proceedings, the trial court inquired of defense counsel as to the "reasons for your client's Alford Plea." (Tr. Vol. I at 7.) In response, defense counsel stated:

Your Honor. * * * We thought that there were some issues that were very triable in this case. I pointed out to [appellant] yesterday after voir dire was called up that I believe that there were several members of the jury who had been victims of potential sexual abuse, specifically, I want to say Juror No. 11 [and] Juror No. 18, * * * and then there was a juror that would have been one of the first people brought up had we excused those people who had sexual assault in their past. Those things gave me pause wherein the * * * Court was not going to get rid of them for cause then we would have to use three of our preemptory challenges on just those individuals. I explained those things to him, told him what the potential risks were if he were to potentially lose at trial. And once his offer was made known to me, I relayed it to him and told him although there are some downsides for him, specifically, the 15-year reporting requirement, that it does not carry mandatory prison time. There's a presumption of community control. And all of those things he should consider seriously. He spoke with his father this morning. And after those discussions, he told me that he would like to resolve the case in this fashion.

(Tr. Vol. I at 7-8.)

         {¶ 5} The trial court then engaged in a plea colloquy with appellant. During the colloquy, the court addressed the issue of post-release control, stating in part as follows:

What you also need to understand is that if I were to place you in prison for these offenses, once you're released from prison, you would be subject to what is called post-release control. What that means is the Adult Parole Authority would have supervision over you and they could place certain restrictions on what you can and cannot do. If you would violate the terms of your post-release control, the Adult Parole Authority could actually send you back to prison for a second time even though you would have done all the initial prison term in this case. Your period of supervision under post-release control would be for a maximum of three years. If you were to violate the terms of your post-release control and if you were to be sent back to prison for a second time, that second sentence could be for up to half as long as your initial prison term.

(Tr. Vol. I at 10.)

         {¶ 6} During the plea proceedings, the prosecutor gave the following recitation of the facts giving rise to the indictment:

This case happened on August 30, 2014. [A.C.] is the victim in this case. She was celebrating her best friend [D.T.'s] birthday. She went over to [D.T.'s] house. And they began drinking. They then picked up a couple of other friends to go to a club. * * * The defendant is the cousin to [D.T.] And he went with them as well to the club.
There was some sort of argument at the club between the victim in the case and the defendant. And some of the witnesses would say that the defendant was hitting on the victim at the club.
After they left the club, at that point, basically, the victim doesn't remember anything from that point forward until the next morning. She just has a complete blank memory. It's unclear whether someone put something in her drink or she just drank too much. But either way, she doesn't remember anything.
But what we know from the other witnesses * * * is that they go back to [a friend's] house. [A.C.] is very sick throwing up, so they put her in a bed at [the friend's] house. They decide that they're going to go to an after-hours party, but the defendant stays behind. [D.T.] feels comfortable with that because the defendant is her cousin. He's downstairs on the couch. And [A.C.] is upstairs on the bed, basically, unconscious at this point. When the girls come home from the after-hours club, they find the defendant in the bed with [A.C.] She's still unconscious at this point.
She calls her boyfriend to pick her up. She just feels that something is not right. She goes to the hospital and has a rape kit done. They do several swabs which are sent to the lab for DNA testing. There were skin swabs taken from her inner thigh that matched the DNA of the defendant. Those were actually semen swabs. There's an anal swab that matches in terms of YSTR, or male DNA, that is consistent with the Defendant; although, that ...

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