State v. Alvendia ( 2024 )

[Cite as State v. Alvendia, 2024-Ohio-2012.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
ALESSANDRO RAPHAEL ALVENDIA,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 23 BE 0044
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 23 CR 93
BEFORE:
Mark A. Hanni, Cheryl L. Waite, Katelyn Dickey, Judges.
JUDGMENT:
Affirmed.
Atty. J. Kevin Flanagan, Belmont County Prosecutor and Atty. Jacob A. Manning,
Assistant Prosecuting Attorney, Belmont County Prosecutor’s Office, for Plaintiff-Appellee
and
Atty. Nathan D. Boone, Boone Law, LLC, for Defendant-Appellant.
Dated: May 24, 2024
–2–
HANNI, J.
{¶1} Defendant-Appellant, Alessandro Raphael Alvendia, appeals from a
Belmont County Common Pleas Court judgment convicting him of two counts of
possession of fentanyl-related compounds and one count of possession of drugs,
following Appellant’s guilty plea. Appellant claims the trial court erred in failing to merge
his two convictions for trafficking in a fentanyl-related compound, his counsel was
ineffective for failing to raise the issue of merger, and the trial court failed to comply with
Crim.R. 11(C)(2) when accepting his guilty plea. Because Appellant’s possession of a
fentanyl-related compound convictions were not subject to merger and because the trial
court complied with Crim.R. 11(C)(2) in accepting Appellant’s guilty plea, the trial court’s
judgment is affirmed.
{¶2} On April 6, 2023, a Belmont County Grand Jury indicted Appellant on:
trafficking in a fentanyl-related compound, a fourth-degree felony in violation of R.C.
2925.03(A)(1)(C)(9)(c) (Count 1); and possession of a fentanyl-related compound, a
fourth-degree felony in violation of R.C. 2925.11(A)(C)(11)(b) (Count 2).
{¶3} On June 8, 2023, the grand jury indicted Appellant in a superseding
indictment. Counts 1 and 2 remained the same. The superseding indictment also added:
trafficking in a fentanyl-related compound, a fourth-degree felony in violation of R.C.
2925.03(A)(2)(C)(9)(c) (Count 3); possession of a fentanyl-related compound, a fourth-
degree felony in violation of R.C. 2925.11(A)(C)(11)(b) (Count 4); trafficking in cocaine, a
fifth-degree felony in violation of R.C. 2925.03(A)(2)(C)(4)(a) (Count 5); and possession
of cocaine, a fifth-degree felony in violation of R.C. 2925.11(A)(C)(4)(a) (Count 6). Counts
3 through 6 included specifications for forfeiture of money in a drug case.
{¶4} The bill of particulars stated that Counts 1 and 2 stemmed from an incident
on December 5, 2022. It further stated that Counts 3 through 6 stemmed from an incident
on March 21, 2023.
{¶5} Appellant initially entered a not guilty plea. He then filed a request for
intervention in lieu of conviction (ILC).
{¶6} Subsequently, on July 31, 2023, Appellant entered a guilty plea to Counts
2, 4, and 6. Appellant also agreed to the forfeiture specification. In exchange, Plaintiff-
Appellee, the State of Ohio, agreed to a dismissal of Counts 1, 3, and 5. The trial court
Case No. 23 BE 0044
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accepted Appellant’s guilty plea and granted his request for ILC. The court informed
Appellant that a finding of guilt and sentencing were deferred pending the completion of
his treatment program. The court set the matter for a review hearing.
{¶7} At his August 28, 2023 review hearing, the trial court found Appellant was
noncompliant with his treatment plan due to missed appointments and three positive urine
screens. The court revoked Appellant’s bond and set the matter for a hearing to
determine whether to terminate Appellant from ILC.
{¶8} At the September 18, 2023 hearing, Appellant admitted to the violations but
asked the court not to terminate his ILC. The trial court denied his request, found
Appellant guilty on Counts 2, 4, and 6, and set the matter for a sentencing hearing.
{¶9} The trial court subsequently sentenced Appellant to 16 months in prison on
Count 2, 16 months on Count 4, and 10 months on Count 6. The court ordered Appellant
to serve his sentences consecutively for a total of 42 months. Appellant filed a timely
notice of appeal on October 25, 2023.
{¶10} Initially, we should point out that Appellant's brief does not comply with
App.R. 16(A)(3) and (4), as it fails to set forth a statement of the assignments of error and
a statement of the issues presented for review with references to the assignments of
error. Appellant’s brief does raise three separate arguments. Although not in compliance
with the appellate rules, in the interest of justice, we will construe Appellant’s issues as
assignments of error.
{¶11} Appellant’s first argument is that his two convictions for possession of a
fentanyl-related compound (Count 2 and Count 4) were offenses of similar import that
should have merged for sentencing. He claims the trial court committed plain error in not
merging these offenses.
{¶12} Appellant did not raise the issue of merger in the trial court. But the failure
to merge allied offenses of similar import constitutes plain error. State v. Tapscott, 2012-
Ohio-4213, 978 N.E.2d 210, ¶ 49 (7th Dist.). Thus, we will review the merger issue for
plain error.
{¶13} Pursuant to R.C. 2941.25:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
Case No. 23 BE 0044
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may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶14} According to the Ohio Supreme Court, when determining whether offenses
are allied offenses of similar import within the meaning of R.C. 2941.25, courts are to
evaluate three separate factors: (1) the conduct; (2) the animus; and (3) the import. State
v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, at paragraph one of the
syllabus. Moreover, pursuant to R.C. 2941.25(B), “a defendant whose conduct supports
multiple offenses may be convicted of all the offenses if any one of the following is true:
(1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the
offenses were committed separately, or (3) the conduct shows that the offenses were
committed with separate animus.” (Emphasis added); Id. at paragraph three of the
syllabus.
{¶15} In this case, the original indictment alleged that Appellant committed Counts
1 and 2 on or about December 5, 2022. The superseding indictment alleged that
Appellant committed Counts 3, 4, 5, and 6 on or about December 5, 2022 through March
21, 2023. The bill of particulars then stated that Counts 1 and 2 stemmed from an incident
that occurred on December 5, 2022. It further stated that Counts 3 through 6 stemmed
from an incident that occurred on March 21, 2023.
{¶16} Appellant pleaded guilty to Counts 2, 4, and 6. In both Count 2 and Count
4, Appellant pleaded guilty to possession of a fentanyl-related compound, a fourth-degree
felony in violation of R.C. 2925.11(A)(C)(11)(b). But these charges stemmed from two
different incidents occurring over three months apart from the each other. Thus, Count 2
and Count 4 were clearly committed separately. Because they were committed
separately, they were not allied offenses of similar import and were not subject to merger
as Appellant asserts.
Case No. 23 BE 0044
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{¶17} Thus, Appellant’s first argument is without merit and is overruled.
{¶18} Appellant’s second argument is that his trial counsel was ineffective for
failing to raise the issue of merger.
{¶19} To prove an allegation of ineffective assistance of counsel, the appellant
must satisfy a two-prong test. First, the appellant must establish that counsel’s
performance has fallen below an objective standard of reasonable representation.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the
syllabus. Second, the Appellant must demonstrate that he was prejudiced by counsel's
performance. Id. To show that he has been prejudiced by counsel’s deficient
performance, the appellant must prove that, but for counsel’s errors, the result of the trial
would have been different. Bradley at paragraph three of the syllabus.
{¶20} The Appellant bears the burden of proof on the issue of counsel’s
ineffectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In
Ohio, a licensed attorney is presumed competent. Id.{¶21} As discussed above, Counts 2 and 4 were not subject to merger.
Presumably, Appellant’s counsel was aware of this. Counsel would not be ineffective for
failing to raise a merger argument here where the Counts were not subject to merger.
{¶22} Accordingly, Appellant’s second argument is without merit and is overruled.
{¶23} Appellant’s third and final argument is that the trial court failed to comply
with Crim.R. 11(C)(2) when accepting his guilty plea. But Appellant relies on the
proceedings at the hearing on the issue of whether to terminate his ILC. He does not
refer at all to the change of plea hearing where he entered his guilty plea. Instead,
Appellant argues the trial court was required to conduct another Crim.R. 11(C)(2) colloquy
at the hearing where it terminated his ILC.
{¶24} First, we must consider whether the trial court complied with Crim.R.
11(C)(2) when it accepted Appellant’s guilty plea.
{¶25} Crim.R. 11(C) states that a trial court must make certain advisements prior
to accepting a defendant’s guilty plea to ensure that the plea is entered into knowingly,
intelligently, and voluntarily. State v. Wright, 7th Dist. Mahoning No. 09 MA 1, 2009-Ohio-
Case No. 23 BE 0044
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4636, ¶ 13. These advisements are typically divided into constitutional rights and non-
constitutional rights. Id.{¶26} The constitutional rights are: (1) a jury trial; (2) confrontation of witnesses
against the defendant; (3) compulsory process to obtain witnesses in the defendant’s
favor; (4) that the state must prove the defendant's guilt beyond a reasonable doubt at
trial; and (5) that the defendant cannot be compelled to testify against himself. Id., citing
Crim.R. 11(C)(2)(c). If the trial court fails to strictly comply with these requirements, the
defendant’s plea is invalid. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897
N.E.2d 621, ¶ 31.
{¶27} The non-constitutional rights that the defendant must be informed of are: (1)
the nature of the charges; (2) the maximum penalty involved, which includes, if applicable,
an advisement on post-release control; (3) if applicable, that the defendant is not eligible
for probation or the imposition of community control sanctions; and (4) that after entering
a guilty plea or a no contest plea, the court may proceed directly to judgment and
sentencing. Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10-13; State v. Sarkozy, 117 Ohio St.3d
86, 2008-Ohio-509, 881 N.E.2d 1224, ¶ 19-26.
{¶28} For the non-constitutional rights, the trial court must substantially comply
with Crim.R. 11 mandates. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
“Substantial compliance means that under the totality of the circumstances the defendant
subjectively understands the implications of his plea and the rights he is waiving.” Veney
at ¶ 15. Furthermore, a defendant who challenges his guilty plea on the basis that the
advisement for the non-constitutional rights did not substantially comply with Crim.R.
11(C)(2)(a)(b) must also show a prejudicial effect, meaning the plea would not have been
otherwise entered. Veney at ¶ 15.
{¶29} At Appellant’s change of plea hearing, the trial court informed Appellant that
by pleading guilty he was waiving his rights to a jury trial, to have the State prove his guilt
beyond a reasonable doubt, to confront witnesses, to compulsory process to obtain
witnesses, and to remain silent. (July 31, 2023, Tr. 14-16). Appellant indicated that he
understood and waived each of these rights. (July 31, 2023, Tr. 14-16). Thus, the court
strictly complied with Crim.R. 11(C)(2) as to Appellant’s constitutional rights.
Case No. 23 BE 0044
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{¶30} Likewise, at Appellant’s change of plea hearing the trial court informed
Appellant of the nature of the charges, the maximum penalties he faced, and the
possibility of community control sanctions. (July 31, 2023, Tr. 5, 11-12). The court also
explained that it could proceed to sentencing but that because of the ILC, it would not be
doing so. (July 31, 2023, Tr. 7-8). Thus, the trial court substantially complied with Crim.R.
11(C)(2) as to Appellant’s non-constitutional rights.
{¶31} In sum, the trial court properly advised Appellant at his change of plea
hearing.
{¶32} Next, we must consider if the trial court took proper actions at Appellant’s
ILC revocation hearing.
{¶33} R.C. 2951.041(F) directs how a court is to proceed if an offender who has
been granted ILC fails to comply with the terms of the ILC:
If the court grants an offender’s request for intervention in lieu of conviction
and the offender fails to comply with any term or condition imposed as part
of the intervention plan for the offender, the supervising authority for the
offender promptly shall advise the court of this failure, and the court shall
hold a hearing to determine whether the offender failed to comply with any
term or condition imposed as part of the plan. If the court determines that
the offender has failed to comply with any of those terms and conditions, it
may continue the offender on intervention in lieu of conviction, continue the
offender on intervention in lieu of conviction with additional terms,
conditions, and sanctions, or enter a finding of guilty and impose an
appropriate sanction under Chapter 2929. of the Revised Code.
(Emphasis added). Pursuant to the statute, if the offender fails to comply with the terms
and conditions of the ILC, the court may enter a finding of guilty and impose a sentence.
The statute does not require the court to conduct a new plea hearing as Appellant
suggests.
{¶34} In examining a similar situation, the Twelfth District explained:
Crim.R. 11(C) only “mandates certain requirements with which the trial court
must comply prior to accepting a guilty or no contest plea to a felony
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offense.” State v. Orr, 11th Dist. Geauga No.2008-G-2861, 2009-Ohio-
5515, ¶ 23. On the other hand, R.C. 2951.041(F) provides the procedural
framework that is to occur at an ILC revocation hearing.
State v. Coffman, 12th Dist. Butler No. CA2015-01-014, 2015-Ohio-2990, ¶ 13.
{¶35} As discussed above, the trial court complied with Crim.R. 11(C)(2) at
Appellant’s change of plea hearing before it accepted his guilty plea. And it complied with
R.C. 2951.04(F) at Appellant’s ILC revocation hearing. It was not required to conduct
another Crim.R. 11(C)(2) colloquy at the ILC revocation hearing.
{¶36} Accordingly, Appellant’s third argument is without merit and is overruled.
{¶37} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Waite, J., concurs.
Dickey, J., concurs.
Case No. 23 BE 0044
[Cite as State v. Alvendia, 2024-Ohio-2012.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.