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State v. Cruz

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 24, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
LUIS CRUZ DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-604108-A

          ATTORNEY FOR APPELLANT Eric M. Levy.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Patrick J. Lavelle Assistant Prosecuting Attorney.

          BEFORE: E.T. Gallagher, P.J., Laster Mays, J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, P.J.

         {¶1} Defendant-appellant, Luis Cruz, appeals his conviction and sentence. He claims the following three assignments of error:

1. The trial court erred when it found appellant's plea was voluntary, knowing, and intelligent and that he was aware of the maximum penalty involved where, at the time of his change of plea, he was given inaccurate information about his judicial release and received ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution related to the incorrect information conveyed to appellant regarding his eligibility to file for judicial release.
2. The trial court erred when it imposed a mandatory fine on an indigent appellant, without first considering his ability to pay and otherwise trial counsel was ineffective for failing to file an affidavit of indigency.
3. The trial court erred when it ordered appellant to pay court costs in its journal entry of sentencing that were not imposed on the record and trial counsel was otherwise ineffective for failing to file an affidavit of indigency.

         {¶2} We find no merit to the appeal and affirm.

         I. Facts and Procedural History

         {¶3} Cruz was charged with one count of drug trafficking in violation of R.C. 2925.03, with a major drug offender specification, a juvenile specification, a one-year firearm specification, and numerous forfeiture specifications for $22, 889 in U.S. currency, eight cell phones, two automobiles, two firearms, and other items. The indictment also included charges for two counts of drug possession, having weapons while under disability, permitting drug abuse, possessing criminal tools, and two counts of child endangering.

         {¶4} After the commencement of trial, the parties reached a plea agreement and Cruz pleaded guilty to one count of trafficking in heroin in an amount exceeding 50 grams but less than 250 grams, in violation of R.C. 2925.03(A)(2), with the juvenile specification, the one-year firearm specification, and the forfeiture specifications. As amended, the trafficking charge no longer included the major drug offender specification, and the state dismissed the remaining seven charges. The parties also agreed to a mandatory eight-year prison sentence.

         {¶5} Before accepting Cruz's guilty plea, Cruz's trial counsel advised the court that he believed Cruz understood his rights but expressed concern regarding the possibility of judicial release. In this regard, Cruz's trial counsel explained:

He has expressed one concern. I told him we had talked to the Court on the sidebar and told him that when he feels that he wants to do so, he can file his - a motion with Court and I've talked about a motion for shock probation with judicial release. I've explained to him that if a motion is filed, like all motions, the Court will consider or review the motion, consider the motions and make a decision based on what the Court feels is most appropriate. That was the only thing that he mentioned to me that he was concerned about and I told him that's the conversation we had and, you know, the Court - I'm letting him again know what we're talking about. But it's my understanding he does wish to enter the plea that we talked about.

(Tr. 236-237.)

         {¶6} Thereafter, the court advised Cruz of the constitutional and statutory rights he was waiving by virtue of his guilty plea. The court also explained the nature of the charges and the potential penalties he could receive including a minimum, mandatory $10, 000 fine. Despite expressing concern over how he was going to pay the mandatory fine, Cruz pleaded guilty to the single count of drug trafficking, as amended. The trial court reluctantly sentenced Cruz to the agreed eight-year sentence and ordered him to pay the mandatory fine of $10, 000. Cruz now appeals his convictions and sentence.

         II. Law and Analysis

         A. Guilty Plea

         {¶7} In the first assignment of error, Cruz argues he did not enter his guilty plea knowingly, intelligently, and voluntarily because he received erroneous information about his eligibility to file for judicial release. He contends he was falsely led to believe he could request judicial release when in reality the mandatory nature of his sentence made him ineligible for judicial release.

         {¶8} In considering whether a plea was entered knowingly, intelligently, and voluntarily, "an appellate court examines the totality of the circumstances through a de novo review of the record." State v. Spock, ...


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