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State v. Cisternino

Court of Appeals of Ohio, Eleventh District, Lake

July 1, 2019

STATE OF OHIO Plaintiff-Appellee,
v.
ANTHONY CISTERNINO, Defendant-Appellant.

          Criminal Appeal from the Willoughby Municipal Court, Case No. 2018 CRB 01779.

          Judson J. Hawkins, (For Plaintiff-Appellee).

          Rebecca R. Grabski, (For Defendant-Appellant).

          OPINION

          MARY JANE TRAPP, J.

         {¶1} Appellant, Anthony J. Cisternino ("Mr. Cisternino"), appeals from the judgment of the Willoughby Municipal Court which sentenced him to 90 days in jail with 81 days credit for time served and fined him $100 after accepting his plea of no contest to one count of resisting arrest.

         {¶2} Mr. Cisternino raises two arguments on appeal. First, he argues he was deprived of the effective assistance of counsel because his counsel failed to file a motion to suppress evidence obtained from an allegedly illegal arrest. Mr. Cisternino also argues the trial court abused its discretion by accepting his plea of no contest despite his complaints about his counsel and clear misunderstanding of the legal process.

         {¶3} After a consideration of the record and relevant law, we affirm the judgment of the trial court. Mr. Cisternino was repeatedly offered and declined the opportunity to have new counsel appointed but chose to plead no contest after the trial court engaged in an extended Crim.R. 11 colloquy to ensure he was knowingly, voluntarily, and intelligently waiving his rights. Further, Mr. Cisternino failed to present any evidence to support his allegations that his counsel was deficient and that but for his counsel's deficient performance, he would have pleaded differently.

         Substantive and Procedural History

         {¶4} After arrest on April 5, 2018, Mr. Cisternino was facing two charges of possession of dangerous drugs with forfeiture specifications under one case number and charges of receiving stolen property and resisting arrest under another case number in the Willoughby Municipal Court. After a preliminary hearing on the drug possession charges, Mr. Cisternino was bound over and then indicted by the Lake County Grand Jury on three misdemeanor counts: two counts of possession of dangerous drugs with forfeiture specification, a first degree misdemeanor in violation of R.C. 4729.51(E)(1)(c), for the possession of 40 doses of Bupropion, Alprazolam residue, and four plastic containers; and one count of resisting arrest, a second degree misdemeanor in violation of R.C. 2921.33(A). Mr. Cisternino did not post bond.

         {¶5} When the two municipal court cases were initially transferred to the court of common pleas, each case was assigned a separate case number. The court of common pleas consolidated the two cases. The indictment on the drug possession charges and resisting arrest charge was filed in the consolidated case and transferred back to the Willoughby Municipal Court, which assigned one case number with parts A & B (the two drug possession charges) and C (resisting arrest).

         {¶6} Mr. Cisternino was appointed counsel from the public defender's office who entered an initial plea of not guilty on Mr. Cisternino's behalf. At the pretrial hearing held on June 26, 2018, Mr. Cisternino agreed to withdraw his not guilty plea via a plea agreement whereby the two drug possession counts would be dismissed in exchange for a plea to the resisting arrest count. The court accepted Mr. Cisternino's plea of no contest to the count of resisting arrest, and the state dismissed the remaining counts.

         {¶7} During the hearing, Mr. Cisternino asked the trial court for clarification about an "inactive" felony that he was told was "on his record" at the Lake County jail and inquired if it was related to the present case. The gravamen of his concern apparently was based in the common pleas court docket entries in the two cases and his desire to assure himself his plea would take care of all charges he was facing from this arrest.

         {¶8} The trial court assured Mr. Cisternino he could not be charged twice for the April 5, 2018 incident, and that once the counts of possessing a dangerous substance were dismissed, he could not be charged again. Mr. Cisternino asked the trial court what happened to the count of receiving stolen property. The trial court explained that all the charges were presented to the grand jury, and this indictment on three counts was what the grand jury returned. The court explained the two different common pleas case numbers. Mr. Cisternino expressed satisfaction with the court's explanation concerning the charges stemming from this arrest.

         {¶9} The trial court then began to engage Mr. Cisternino in the Crim.R. 11 colloquy to ensure his waiver of his right to a trial was knowing, voluntary, and intelligent. The trial court asked Mr. Cisternino if he understood he was waiving his rights to: a trial by judge or jury, confront witnesses by cross-examination, compel witnesses to come to court and to testify on his behalf, have the state prove its case beyond a reasonable doubt, and remain silent. Mr. Cisternino responded in the affirmative. He also confirmed that no one made ...


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