Court of Appeals of Ohio, Eleventh District, Lake
Criminal Appeal from the Willoughby Municipal Court, Case No.
2018 CRB 01779.
J. Hawkins, (For Plaintiff-Appellee).
Rebecca R. Grabski, (For Defendant-Appellant).
JANE TRAPP, J.
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
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
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.
and Procedural History
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.
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).
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.
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.
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.
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