Court of Appeals of Ohio, Eighth District, Cuyahoga
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
BEFORE: E.T. Gallagher, P.J., Laster Mays, J., and Jones, J.
JOURNAL ENTRY AND OPINION
T. GALLAGHER, P.J.
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
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.
We find no merit to the appeal and affirm.
Facts and Procedural History
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
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.
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
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.
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.
Law and Analysis
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.
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, ...