State v. Rivas ( 2014 )

[Cite as State v. Rivas, 2014-Ohio-833.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100044
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL E. RIVAS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-570724
BEFORE: S. Gallagher, P.J., E.A. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: March 6, 2014
ATTORNEY FOR APPELLANT
Michael P. Maloney
24441 Detroit Road
Suite 300
Westlake, OH 44145
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Denise J. Salerno
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:
{¶1} Appellant Michael Rivas appeals from his conviction for two counts of
felonious assault with notice of prior conviction and repeat violent offender
specifications, and one count of misdemeanor assault. For the following reasons, we
affirm.
{¶2} On January 12, 2013, Rivas had several people at his house, including the
victim, the victim’s sister, and her boyfriend. Everyone was drinking. Sometime during
the evening, an argument arose over beer money. The argument turned physical, and
Rivas hit the victim over the head with a beer bottle. After the altercation, the trio left
Rivas’s home, but the victim soon realized he left his cell phone behind.
{¶3} The trio returned to Rivas’s home to collect the cell phone. Probably
because of the altercation, the boyfriend walked to Rivas’s door and asked for the return
of the victim’s cell phone. Rivas pushed the boyfriend down the front door stairs,
causing the victim’s sister to approach the home and attempt to effect the return of the
phone. She suffered the same fate as the boyfriend. After seeing his sister and her
boyfriend shoved by Rivas, the victim exited the car and walked up the driveway. Rivas
met the victim in the driveway armed with a kitchen knife. A fight ensued, and the
victim, defending himself with only his fists, sustained severe injuries to his face, hand,
and leg.
{¶4} Rivas agreed to waive a jury and proceed with a bench trial. After hearing
all the evidence, the trial court found Rivas guilty of two counts of felonious assault with
notice of prior conviction and repeat violent offender specifications, and one count of
misdemeanor assault. The trial court proceeded straight to sentencing and sentenced
Rivas to four years in prison. As made pertinent to this appeal, at the sentencing hearing,
Rivas, through his attorney, notified the court of his mental health treatment for bipolar
disorder, which began after the incident. Nothing in the record indicates when Rivas was
clinically diagnosed with the disorder.
{¶5} It is from this conviction that Rivas timely appeals, advancing two
assignments of error. Rivas’s first assignment of error provides that the trial court erred
by failing to order, and therefore review, a presentence investigation report in light of
Rivas’s psychiatric history. Rivas’s first assignment of error is without merit.
{¶6} Crim.R. 32.2 states, “In felony cases the court shall * * * order a presentence
investigation and report before * * * imposing community control sanctions or granting
probation.”1 This rule facially requires a presentence investigation only as a prerequisite
to the imposition of community control, and not as a prerequisite to imposing a prison
term. State v. Davis, 8th Dist. Cuyahoga No. 95722, 2011-Ohio-1377, ¶ 9. If probation
or community control sanctions are not imposed, there is no affirmative obligation to
order the report prior to sentencing. Id., citing State v. Bowman, 7th Dist. Belmont No.
03-BE-40, 2004-Ohio-6372, ¶ 24; State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d 941
We also note that there is no other statutory authority requiring the trial court to order a
presentencing investigation report prior to the imposition of a term of imprisonment on a felony
offense. Both R.C. 2951.03 and 2947.06 either require the report prior to the imposition of
community control, or make the report discretionary.
(1992). Accordingly, the trial court did not err in proceeding straight to sentencing in
light of the fact that the trial court sentenced Rivas to a term of imprisonment and did not
impose community control sanctions.
{¶7} Rivas further claims that the trial court should have considered his mental
health issues diagnosed after the date of the incident. The record reflects, however, that
both defense counsel and Rivas were afforded the opportunity to address the court and
offer circumstances for the court’s consideration prior to the imposition of sentence.
State v. Richmond, 8th Dist. Cuyahoga No. 98915, 2013-Ohio-2887, ¶ 32 (both the
defendant and his attorney had the opportunity to address the court and provide any
information for the court’s consideration before imposing the sentence). More
important, the trial court was made aware of Rivas’s bipolar disorder treatment and
expressly considered all other sentencing factors. Rivas’s first assignment of error is
overruled.
{¶8} In Rivas’s second assignment of error, Rivas claims that his trial counsel was
ineffective for failing to request the appellant’s case be referred to the court’s mental
health docket. Rivas’s argument is without merit.
{¶9} In order to substantiate a claim of ineffective assistance of counsel, the
appellant must show that (1) counsel’s performance was deficient and (2) the deficient
performance prejudiced the defendant so as to deprive him of a fair trial. State v.
Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Judicial
scrutiny of defense counsel’s performance must be highly deferential. Strickland at 689.
In Ohio, there is a presumption that a properly licensed attorney is competent. State v.
Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. The defendant has
the burden of proving his counsel rendered ineffective assistance. State v. Perez, 124
Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 223.
{¶10} Rule 30.1 of the Local Rules of the General Division of the Common Pleas
Court of Cuyahoga County provides that the “[m]ental health dockets shall include cases
where the defendant has a confirmed serious mental illness[,]” which is defined as the
defendant being clinically diagnosed, within the previous six months prior to arraignment,
of having a severe mental illness with a psychotic feature. In this case, Rivas was
diagnosed with bipolar disorder, but even if facially considering his argument, there was
no clinical diagnosis of the bipolar disorder with a psychotic feature as required by Rule
30.1. Rivas’s claim was limited to the generic argument that he was diagnosed with
bipolar disorder. There is no specificity within this record regarding his diagnosis, much
less any indication that the bipolar disorder was accompanied with a psychotic feature.
Accordingly, his trial counsel was not deficient for failing to attempt to have Rivas’s case
referred to the court’s mental health docket. Relying on our review of the facts, Rivas
would not have qualified for the mental health docket based on the record provided for
this appeal. See State v. Hawthorne, 8th Dist. Cuyahoga No. 89932, 2008-Ohio-2049, ¶
24 (a reviewing court is limited to the facts presented upon the record of appeal and
cannot consider facts outside that record). Rivas’s final assignment of error is overruled.
{¶11} We affirm Rivas’s conviction and the judgment of the trial court.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR