State v. Hernandez

[Cite as State v. Hernandez, 2017-Ohio-2797.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-16-27
v.
JAIME O. HERNANDEZ, SR., OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-16-28
v.
JAIME O. HERNANDEZ, SR., OPINION
DEFENDANT-APPELLANT.
Appeals from Defiance County Common Pleas Court
Trial Court Nos. 05CR09377 and 16CR12576
Judgments Affirmed
Date of Decision: May 15, 2017
APPEARANCES:
W. Alex Smith for Appellant
Russell R. Herman for Appellee
Case No. 4-16-27, 4-16-28
SHAW, J.
{¶1} Defendant-appellant, Jaime O. Hernandez, Sr. (“Hernandez”), brings
these appeals from the November 28, 2016, judgments of the Defiance County
Common Pleas Court imposing the balance of Hernandez’s prison term in trial court
case number 05-CR-09377 after Hernandez violated his community control
sanctions and ordering Hernandez to serve a consecutive 10-month prison term in
trial court case number 16-CR-12576 after Hernandez pled no contest to, and was
found guilty of, Possession of Cocaine in violation of R.C. 2925.11(A), a felony of
the fifth degree.1 On appeal, Hernandez argues that he received ineffective
assistance of counsel.
Relevant Facts and Procedural History
{¶2} In trial court case number 05-CR-09377, Hernandez was convicted of
Trafficking in Cocaine in violation of R.C. 2925.03(A), a felony of the third degree.
On April 6, 2006, Hernandez was sentenced to 4 years of community control, with
a 4-year reserved prison term.
{¶3} On January 8, 2010, the State filed a motion to revoke Hernandez’s
community control for various alleged violations. Hernandez admitted to violating
his community control, and the 4-year reserved prison term in case number 05-CR-
09377 was imposed. The 4-year prison term was ordered to be served consecutive
1
Appeal 4-16-27 corresponds to trial court case number 05-CR-09377. Appeal 4-16-28 corresponds to trial
court case number 16-CR-12576.
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Case No. 4-16-27, 4-16-28
to a separate 33-month prison term from Defiance County Common Pleas Court
case number 05-CR-09216, which involved three counts of Non Support of
Dependents, all felonies of the fifth degree. Hernandez was thus ordered to serve
an aggregate 81-month prison term at that time.
{¶4} On April 2, 2015, Hernandez was granted early release pursuant to R.C.
2967.19, and he was placed on community control.2 At that time, the trial court
noted that Hernandez had served the entirety of his 33-month prison term in the
separate 05-CR-09216 case for Non Support of Dependents.3
{¶5} On April 12, 2016, the State filed a motion to revoke Hernandez’s
community control, alleging that Hernandez “tested positive for and admitted to
using cocaine.” (05-CR-09377 Doc. No. 51).
{¶6} Based on the same allegations made to revoke Hernandez’s community
control in trial court case number 05-CR-09377, Hernandez was indicted on May 5,
2016, in trial court case number 16-CR-12576 for one count of Possession of
Cocaine in violation of R.C. 2925.11(A)/(C)(4)(a), a felony of the fifth degree. The
indictment alleged that on or about April 11, 2016, Hernandez “did knowingly
2
Revised Code 2967.19 contains an “eighty per cent” release procedure for certain offenders, which is
initiated by a written recommendation to the sentencing court by the director of the department of
rehabilitation. Should the offender be granted early release based on this provision, the trial court is instructed
to place the offender on “one or more appropriate community control sanctions * * * and shall reserve the
right to reimpose the sentence that it reduced and from which the offender was released if the offender violates
the sanction.” R.C. 2967.19(I).
3
Other than providing background information as to why Hernandez was incarcerated for so long, the 05-
CR-09216 case dealing with Non Support of Dependents has no further relevance.
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Case No. 4-16-27, 4-16-28
obtain, possess, or use a controlled substance * * * and the drug involved was
cocaine or a compound, mixture, preparation, or substance containing cocaine in an
amount of less than five grams.” (Doc. No. 1). Hernandez originally pled not guilty
to the charge in the new indictment and he denied violating his community control
in the 05-CR-09377 case.
{¶7} On June 13, 2016, a hearing was held wherein Hernandez admitted to
violating his community control in the 05-CR-09377 case and he pled no contest to
the charge in the 16-CR-12576 indictment. The trial court engaged in a thorough
Criminal Rule 11 dialogue with Hernandez and determined that Hernandez was
acting knowingly, intelligently and voluntarily. The trial court then found “that the
May 5th indictment in fact states the offense of Possession of Cocaine, as a Felony
of the Fifth Degree,” and found Hernandez guilty. (June 13, 2016, Tr. at 11).
{¶8} Hernandez’s disposition on his community control violation from the
05-CR-09377 case and his sentencing from the 16-CR-12576 case were delayed to
see how Hernandez performed under further supervision. When the trial court
delayed Hernandez’s sentencing, Hernandez was warned that if he had any further
issues the trial court would order any sentence in the 16-CR-12576 case to be served
consecutively to the re-imposition of Hernandez’s remaining prior sentence from
the 05-CR-09377 case.
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Case No. 4-16-27, 4-16-28
{¶9} On November 21, 2016, Hernandez’s cases proceeded to disposition
and sentencing. At the hearing, the State noted that Hernandez had received a new
OVI charge and that he had separately tested positive for “Tramadol,” for which
Hernandez did not have a prescription. The trial court then recited Hernandez’s
lengthy criminal history both as a juvenile and as an adult. After giving Hernandez
and his attorney an opportunity to speak, the trial court revoked Hernandez’s
community control in the 05-CR-09377 case, imposing the remainder of his prison
term, and ordered Hernandez to serve 10 months in prison on the 16-CR-12576 case,
consecutive to the 05-CR-09377 case.
{¶10} Judgment entries memorializing Hernandez’s sentence were filed
November 28, 2016. It is from these judgments that Hernandez appeals, asserting
the following assignment of error for our review.
Assignment of Error
Appellant received ineffective assistance of counsel [in] violation
of his rights under the Sixth and 14th amendments to the United
States Constitution in Article I. § 10 of the Constitution of the
State of Ohio.
{¶11} In his assignment of error, Hernandez argues that he received
ineffective assistance of counsel. Specifically, he contends that he could not
actually be convicted of Possession of Cocaine based solely upon the presence of
cocaine metabolites in a urine test, thus his attorney was ineffective for allowing
Hernandez to plead no contest to the charge.
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Case No. 4-16-27, 4-16-28
Standard of Review
{¶12} To establish a claim for ineffective assistance of counsel, a defendant
must show that counsel’s performance was deficient and that counsel’s deficient
performance prejudiced him. State v. Phillips, 3d Dist. Allen No. 1–15–43, 2016–
Ohio–3105, ¶ 11, citing State v. Jackson, 107 Ohio St.3d 53, 2005–Ohio–5981, ¶
133, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). The failure to make
either showing defeats a claim of ineffective assistance of counsel. State v. Bradley,
42 Ohio St.3d 136, 143 (1989), quoting Strickland at 697. (“[T]here is no reason
for a court deciding an ineffective assistance claim to approach the inquiry in the
same order or even to address both components of the inquiry if the defendant makes
an insufficient showing on one.”).
Argument and Analysis
{¶13} In this case Hernandez argues that he could not be convicted of
Possession of Cocaine based solely on the presence of cocaine metabolites in his
urine, despite pleading no contest to the charge in the indictment. In support of his
argument, Hernandez cites State v. Lowe, 4th Dist. Highland No. 798, 86 Ohio
App.3d 749 (1993), wherein the Fourth District Court of Appeals determined that
mere presence of cocaine metabolites in a person’s urine is insufficient to
demonstrate the “knowing” element of Possession of Cocaine. Lowe at 755-56.
Hernandez contends that the only evidence the State had against him was his
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Case No. 4-16-27, 4-16-28
positive drug test, thus his attorney was ineffective for allowing him to plead no
contest to the charge.
{¶14} At the outset, we would note that despite Hernandez’s argument that
the State’s only evidence against Hernandez was a positive urine test, in the motion
to revoke Hernandez’s community control in trial court case 05-CR-09377, it was
alleged that Hernandez tested positive for cocaine and that he admitted to using it.
Thus any reliance by Hernandez on Lowe or similar cases reversing a conviction for
possession of drugs based solely on a drug test is misplaced.
{¶15} Notwithstanding that point, Hernandez’s caselaw is made entirely
irrelevant by his no contest plea, which forecloses his ability to challenge the
sufficiency of the evidence against him provided the indictment was sufficient. The
Rules of Criminal Procedure, provide that a “plea of no contest is not an admission
of defendant’s guilt, but is an admission of the truth of the facts alleged in the
indictment.” Crim.R. 11(B). “Where the indictment, information, or complaint
contains sufficient allegations to state a felony offense and the defendant
pleads no contest, the court must find the defendant guilty of the charged offense.”
(Emphasis added.) State v. Bird, 81 Ohio St.3d 582 (1998), syllabus. Consequently,
“by pleading no contest to the indictment [an] appellant is foreclosed from
challenging the factual merits of the underlying charge.” (Emphasis added.) Id. at
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Case No. 4-16-27, 4-16-28
583. As the indictment in this case was sufficient to state a charge of Possession of
Cocaine, Hernandez cannot challenge the factual merits of his case.4
{¶16} Regarding his ineffective assistance of counsel claim specifically,
Hernandez pled no contest to the charge, admitting the truth of the allegations in the
indictment. As a result, “the record before us contains no facts to support his
contention that his counsel was ineffective.” State v. Rothonbuhler, 3d Dist.
Defiance No. 4-03-05, 2004-Ohio-2059, ¶ 11. Facts were not put into the record to
support Hernandez’s claim to challenge the face of the indictment. “It is impossible
to determine whether the attorney was ineffective in his representation of appellant
where the allegations of ineffectiveness are based on facts not appearing in the
record.” State v. Cooperrider, 4 Ohio St.3d 226, 228 (1983). This Court has held
previously an ineffective assistance of counsel claim in similar circumstances of a
no contest plea is more properly reserved for post-conviction petitions and as such
cannot sustain an ineffective assistance of counsel argument on direct appeal.
Rothonbuhler, at ¶¶ 11-13.
{¶17} Finally, Hernandez affirmatively indicated to the trial court during his
Crim.R. 11 plea colloquy that he was satisfied with his attorney. His claims now
4
During the Crim.R. 11 colloquy in this case, Hernandez indicated his understanding that his determination
of his guilt would be based upon the allegations in the indictment. The trial court made it clear to Hernandez
that when he was “enter[ing] a plea of no contest you’re admitting for the purpose of this proceeding what’s
stated in the indictment. There’s not going to be a trial, the State will not have to prove anything. The Court
will simply review that indictment. If it states a criminal offense the Court has the power to find you guilty
of that crime * * *[.] Do you understand that?” (June 16, 2016, Tr. at 6). Hernandez affirmatively indicated
that he understood.
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Case No. 4-16-27, 4-16-28
seem little more than buyer’s remorse considering his disposition and sentencing
were delayed to give him a chance to perform under supervision and when
Hernandez was charged with OVI prior to his sentencing hearing, the trial court
elected to sentence Hernandez to prison on both cases. For all of these reasons,
Hernandez’s argument is not well-taken.
{¶18} Inasmuch as Hernandez’s assignment of error remotely touches upon
ineffective assistance of counsel related to his admission of his community control
sanction violation in trial court case 05-CR-09377, which he does not appear to
claim on appeal, his argument is similarly not well-taken.
Conclusion
{¶19} For the foregoing reasons Hernandez’s assignment of error is
overruled. The judgments of the Defiance County Common Pleas Court in trial
court case numbers 16-CR-12576 and 05-CR-09377 are affirmed.
Judgments Affirmed
ZIMMERMAN, J., concurs.
WILLAMOWSKI, J., concurs in Judgment Only.
/jlr
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