[Cite as State v. Rodriquez, 2017-Ohio-1318.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

DEFIANCE COUNTY 

 

STATE OF OHIO, 

 CASE NO. 4-16-16 

 PLAINTIFF-APPELLEE, 

 v. 

SCOTTY RODRIQUEZ, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Defiance County Common Pleas Court 

Trial Court No. 15-CR-12330 

Judgment Affirmed 

Date of Decision: April 10, 2017 

 

APPEARANCES: 

Mary Catherine O’Neill and Bret Jordan for Appellant 

Russell R. Herman for Appellee 

 
Case No. 4-16-16 

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WILLAMOWSKI, J. 

{¶1} Defendant-appellant Scotty Rodriquez (“Rodriquez’) brings this appeal 

from the judgment of the Court of Common Pleas of Defiance County finding him 

guilty after he entered a no contest plea and for imposing consecutive sentences. 

Rodriquez also claims that he was denied the effective assistance of counsel. For 

the reasons set forth below, the judgment is affirmed. 

{¶2} On August 13, 2015, the Defiance County Grand Jury indicted 

Rodriquez on three counts of trafficking in cocaine in violation of R.C. 

2925.03(A)(1)(C)(4). Doc. 1. Rodriquez entered pleas of not guilty to all of the 

charges. Doc. 6. On May 19, 2016, a change of plea hearing was held. Doc. 15. 

At the hearing, Rodriquez entered pleas of no contest to all of the counts of the 

indictment. Id. The trial court then accepted the plea of no contest and found 

Rodriquez guilty of the offenses charged. Id. A sentencing hearing was then held 

on July 12, 2016. Doc. 17. The trial court then ordered that Rodriquez serve prison 

terms of five years each for Counts 1 and 3, with the terms to be served consecutive. 

Id. The trial court also ordered Rodriquez to serve a prison term of 36 months for 

Count 2 and ordered that this term be served concurrent to the others for an 

aggregate prison term of ten years. Id. Rodriquez then filed a timely appeal from 

this judgment. Doc. 19. On appeal, Rodriquez raises the following assignments of 

error. 
Case No. 4-16-16 

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First Assignment of Error 

The trial court erred in finding [Rodriquez] guilty as [Rodriquez] 

never entered a plea in the instant matter. 

Second Assignment of Error 

The trial court erred by proceeding to sentence after the State did 

not adhere to their portion of the plea agreement. 

Third Assignment of Error 

[Rodriquez] received ineffective assistance of counsel. 

Fourth Assignment of Error 

The trial court erred by sentencing [Rodriquez] to consecutive 

sentences by failing to engage in the three step analysis required 

by [R.C. 2929.14(C)] and the supporting case law. 

On January 25, 2017, Rodriquez filed a supplemental brief raising two additional 

assignments of error based upon a ruling by the Supreme Court of Ohio in State v 

Gonzales, ___ Ohio St.3d ___, 2016-Ohio-8319, ___ N.E.2d ___. Rodriquez raised 

two additional assignments of error. 

First Supplemental Assignment of Error

The trial court erred in finding [Rodriquez] guilty as 

[Rodriquez’s] alleged plea was not made knowingly, intelligently 

and voluntarily pursuant to Crim.R. 11 in the instant matter. 

Second Supplemental Assignment of Error 

[Rodriquez] received ineffective assistance of counsel. 

For the purpose of clarity, we will address the assignments out of order. 
Case No. 4-16-16 

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Entering a No Contest Plea 

{¶3} In the first assignment of error, Rodriquez claims that he never actually 

entered a plea of no contest. In cases involving felonies, a trial court may refuse to 

accept a plea of no contest and may not accept such a plea without first personally 

addressing the defendant and doing all of the following: 1) determining that the 

plea is being voluntarily entered with knowledge of the nature of the charges, 

potential sanctions, and eligibility for community control sanctions; 2) informing 

the defendant of and determining that the defendant understands the effect of the 

plea being entered, and informing the defendant that the trial court may proceed 

directly to sentencing; and 3) informing the defendant and determining that the 

defendant understands the rights he is waiving by entering the plea. Crim.R. 

11(C)(2). 

{¶4} A review of the record in this case indicates that the following dialogue 

occurred. 

The Court: Based upon those discussions at this time you’re 

asking leave to withdraw the not guilty pleas previously tendered, 

tendering pleas of no contest to all three counts, Trafficking in 

Cocaine, A felony of the First Degree; Trafficking in Cocaine, a 

Felony of the Third Degree; Trafficking in Cocaine, a Felony of 

the First Degree? 

Mr. Seibel [counsel for Rodriquez]: Correct. 

The Court: Mr. Rodriquez, do you understand what’s being said 

on your behalf there? 
Case No. 4-16-16 

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[Rodriquez]: Yes, Sir. 

The Court: Is that what you want to do? 

[Rodriquez]: Yes, Sir. 

The Court: Are you satisfied with Mr. Seibel’s legal services in 

these matters? 

[Rodriquez]: Yes, sir. 

May 19, 2016 Tr. 3-4. The trial court then proceeded to conduct the Criminal Rule 

11 colloquy with Rodriquez. Id. at 4-10. Following that, the trial court again 

questioned Rodriquez about the plea. 

The Court: In light of all the things I’ve told you about, all the 

rights you give up by entering pleas of no contest, possible 

penalties involved for these Two First Degree Felonies and the 

Third Degree Felony, specifically the fact that those First Degree 

Felonies are mandatory imprisonment offenses, mandatory fine 

offenses, the fact again there’s no recommendation that is part of 

the plea proposal here. Taking all those things into account; do 

you believe the pleas here to be in your best interest? 

[Rodriquez]: Yes, Sir. 

The Court: Are those pleas then of your own free will? 

[Rodriquez]: Yes, Sir. 

The Court: Did anyone tell you how to answer the questions I’ve 

asked you here today? 

[Rodriquez]: No, Sir. 

* * * 

The Court: Are there any questions you want to ask me about 

these plea proceedings? 
Case No. 4-16-16 

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[Rodriquez]: No, Sir. 

* * * 

The Court: The Court will accept the no contest pleas. * * * The 

Court will enter findings of guilty. * * * 

Id. at 10-12. Although Rodriquez did not specifically state that he was changing his 

not guilty pleas to ones of no contest, that is what can be inferred from the record. 

“A judge properly accepts a defendant's plea of guilty to an offense when the record 

shows he substantially complied with the requirements of Crim.R. 11(C) and the 

totality of the circumstances shows the defendant subjectively understood the 

implications of his plea.” State v. McGuire, 8th Dist. Cuyahoga No. 86608, 2006-

Ohio-1330, ¶ 14. Although McGuire discussed accepting a guilty plea, the same 

logic applies to the acceptance of a no contest plea. The record before this court 

shows that the trial court fully complied with the requirements of Criminal Rule 11

Additionally, the record shows that the defendant was fully aware of what was 

occurring and that he intended to change his pleas from not guilty to ones of no 

contest. Thus, the trial court did not err in accepting the pleas of no contest as 

entered by Rodriquez. The first assignment of error is overruled. 

Knowingly Entering a Plea

{¶5} Rodriquez argues in his first supplemental assignment of error that he 

did not voluntarily enter his plea of no contest because at the time of the plea, neither 

he nor the State was aware of what the State was actually required to prove if the 
Case No. 4-16-16 

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matter went to trial. Rodriquez claims that both sides were operating under the 

mistaken belief that the State only had to prove the weight of the cocaine including 

any filler used to “cut” the drug. On December 23, 2016, the Supreme Court of 

Ohio held that to enhance the offense the State was required to prove the actual 

weight of the cocaine itself, not the cocaine with the filler. State v. Gonzales, ____ 

Ohio St.3d ____, 2016-Ohio-8319, ____ N.E.2d ____. In Gonzales, Court was 

asked to resolve a conflict between the districts and answer the following certified 

question: “Must the state, in prosecuting cocaine offenses involving mixed 

substances under R.C. 2925.11(C)(4)[(b)] through (f), prove that the weight of the 

cocaine meets the statutory threshold, excluding the weight of any filler materials 

used in the mixture?” Gonzales, supra at ¶ 1. The Court, in a plurality opinion with 

four justices agreeing for different reasons, answered the question in the affirmative. 

Id. This conclusion was then expanded to include those charged with trafficking in 

cocaine as charged under R.C. 2925.03. State v. Sanchez, ___ Ohio St.3d ___, 2016-

Ohio-8470, ___ N.E.3d ___. However, the State filed a motion for reconsideration 

of the decision in Gonzales and the motion was granted. On March 6, 2017, the 

Court vacated its prior opinion. State v. Gonzales, ____ Ohio St.3d ____, 2017-

Ohio-777, ____ N.E.3d ____. This opinion answered the certified question in the 

negative. The Court concluded “that the applicable offense level for cocaine 
Case No. 4-16-16 

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possession under R.C. 2925.11(C)(4) is determined by the total weight of the drug 

involved, including any fillers that are part of the usable drug.” Id. at ¶ 18. 

{¶6} At the time of the change of plea, both the State and Rodriquez 

understood the law as allowing the weight of the filler to be considered when 

determining the level of the offense. The prior opinion of the Supreme Court of 

Ohio indicated that this interpretation was in error. However, the Court has vacated 

that prior opinion and held that the law allowed for the weight of any filler to be 

considered. There was no mistake by the parties as to what had to be proven by the 

State to obtain a conviction on the offenses charged. The record contains no 

evidence that the plea was not knowingly, voluntarily, and intelligently entered. 

Thus, the first supplemental assignment of error is overruled. 

Adherence to Plea Agreement 

{¶7} Rodriquez argues in his second assignment of error that the trial court 

erred by proceeding to sentencing when the State violated the terms of the plea 

agreement. This court notes that no written plea agreement is found in the record. 

Thus, the only indication we have as to the terms of the agreement is what is stated 

at the hearing. At the May 19, 2016, hearing, the State recited the plea agreement 

as follows. 

Mr. Furnas: It’s my understanding the Defendant will be 

entering no contest pleas with a stipulation of the facts to all three 

counts. He would then be requesting that an open sentencing take 

place. Right at this time we do not have any recommendation. 
Case No. 4-16-16 

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The Court: Both mandatory prison and mandatory fines – 

Mr. Furnas: Yes. 

The Court: -- on the Ones, but not the Three? 

Mr. Furnas: That’s correct. Had he had a prior drug abuse 

offense it would be mandatory on the Three, but since he does not 

it’s not mandatory. 

The Court: But the Ones are mandatory threes – mandatory 

three years up to eleven. 

Mr. Furnas: Correct. 

The Court: And $10,000.00 mandatory fines? 

Mr. Furnas: Correct. 

The Court: Mr. Siebel, is that your understanding? 

Mr. Seibel: Yes, Sir, it is. 

May 19, 2016 Tr. 2-3. Rodriquez then confirmed that this was his understanding as 

well. Id. at 4. 

{¶8} At the sentencing hearing, the State recommended an aggregate 

sentence of twelve years. Counsel for Rodriquez then made the following 

statements. 

Mr. Seibel: * * * The reason that we have an open sentencing is 

we weren’t able to reach an agreement during our pre-trial 

negotiations. I think we had talked about a tail of five years and 

a tail – and I personally felt that was excessive considering the 

nature of the situation. And I talked to [Rodriquez] about it, and 

I said why don’t we just plea this charge and you can make your 

argument to the Court, I’ll make my argument to the Court. 
Case No. 4-16-16 

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July 12, 2016 Tr. 3-4. The record clearly shows that Rodriquez and the State had 

not reached an agreement as to the sentencing. When there is no agreement as to 

sentencing, the State is free to request any sentence it wishes. State v. Shepherd, 3d 

Dist. Hardin No. 6-09-14, 2010-Ohio-482, ¶ 18. As there was no agreement on 

sentencing, the State did not violate the terms of the plea agreement. The second 

assignment of error is overruled. 

Ineffective Assistance of Counsel 

{¶9} The third assignment of error and the second supplemental 

assignment of error both allege that Rodriquez was denied the effective 

assistance of counsel. 

In evaluating whether a petitioner has been denied effective 

assistance of counsel, this court has held that the test is “whether 

the accused, under all the circumstances, * * * had a fair trial and 

substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d 

71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus. 

When making that determination, a two-step process is usually 

employed. “First, there must be a determination as to whether 

there has been a substantial violation of any of defense counsel's 

essential duties to his client. Next, and analytically separate from 

the question of whether the defendant's Sixth Amendment rights 

were violated, there must be a determination as to whether the 

defense was prejudiced by counsel's ineffectiveness.” State v. Lytle

(1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d 

623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct. 

3135, 57 L.Ed.2d 1154. 

On the issue of counsel's ineffectiveness, the petitioner has the 

burden of proof, since in Ohio a properly licensed attorney is 

presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio 
Case No. 4-16-16 

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St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64 

Ohio St.2d at 110–111, 18 O.O.3d at 351, 413 N.E.2d at 822. 

State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. “The 

failure to prove either 1) a substantial violation or 2) prejudice caused by the 

violation makes it unnecessary for a court to consider the other prong of the test.” 

State v. Walker, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20. 

{¶10} Rodriquez claims that his counsel was ineffective by not objecting to 

the State making a sentencing recommendation. This claim was addressed in the 

second assignment of error. This court determined that there was no agreement as 

to sentencing. Thus, counsel did not err by not objecting to the State’s 

recommendation. Without a substantial violation, there can be no ineffective 

assistance of counsel. The third assignment of error is overruled. 

{¶11} In the second supplemental assignment of error, Rodriquez argues that 

his counsel was ineffective for failing to raise the issue of the actual amounts of 

cocaine as was raised in Gonzales. As discussed above, the Supreme Court of Ohio 

has vacated the original Gonzales opinion upon reconsideration and has since 

determined that the actual amounts of cocaine are irrelevant. State v. Gonzales, 

____ Ohio St.3d ____, 2017-Ohio-777, ____ N.E.3d ____. Instead the Court held 

that the total weight includes the weight of any fillers that are part of the usable 

drug. Id. at ¶ 18. Since this is the law Rodriquez’s counsel was not ineffective for 
Case No. 4-16-16 

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not raising the issue of the actual amounts of cocaine. The second supplemental 

assignment of error is overruled. 

Consecutive Sentences 

{¶12} Finally, Appellant claims in his fourth assignment of error that the trial 

court erred by imposing consecutive sentences. Prior to imposing consecutive 

sentences, the trial court must make certain findings. 

If multiple prison terms are imposed on an offender for 

convictions of multiple offenses, the court may require the 

offender to serve the prison terms consecutively if the court finds 

that the consecutive service is necessary to protect the public from 

future crime or to punish the offender and that consecutive 

sentences are not disproportionate to the seriousness of the 

offender's conduct and to the danger the offender poses to the 

public, and if the court also finds any of the following: 

(a) The offender committed one or more of the multiple offenses 

while the offender was awaiting trial or sentencing, was under a 

sanction imposed pursuant to [R.C. 2929.16, 2929.17, 2929.18], or 

was under post-release control for a prior offense. 

(b) At least two of the multiple offenses were committed as part of 

one or more courses of conduct, and the harm caused by two or 

more of the multiple offenses so committed was so great or 

unusual that no single prison term for any of the offenses 

committed as part of any of the courses of conduct adequately 

reflects the seriousness of the offender's conduct. 

(c) The offender's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from 

future crime by the offender. 

R.C. 2929.14(C)(4). 
Case No. 4-16-16 

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In order to comply with R.C. 2929.14(C)(4), a trial court imposing 

consecutive sentences must make at least three distinct findings: 

'“(1) that consecutive sentences are necessary to protect the public 

from future crime or to punish the offender; (2) that consecutive 

sentences are not disproportionate to the seriousness of the 

offender's conduct and to the danger the offender poses to the 

public; and (3) that one of the subsections (a), (b) or (c) applies.”' 

State v. Dixon, 10th Dist. Franklin No. 15AP-432, 2015-Ohio-5277, ¶ 11, quoting 

State v. Hillman, 10th Dist. Franklin No. 14AP-252, 2014-Ohio-5760, ¶ 63, quoting 

State v. Price, 10th Dist. Franklin No. 13AP-1088, 2014-Ohio-4696, ¶ 31, citing 

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177. Criminal Rule 32(A) 

requires that at the time of imposing sentence in serious offenses, the trial court must 

state its statutory findings. Crim.R. 32(A)(4). The Supreme Court of Ohio has held 

that this means that “[w]hen imposing consecutive sentences, a trial court must state 

the required findings as part of the sentencing hearing”. Bonnell, supra at ¶ 29. 

Although the trial court need not give a “talismanic incantation of the words of the 

statute”, the necessary findings must be found in the record and incorporated into 

the sentencing entry. Id. at 37. Here, the trial court made the following relevant 

statements regarding the sentence at the sentencing hearing. 

He’ll be sentenced to basic prison terms of five years at the Ohio 

Department of Rehabilitation and Corrections at Orient on each 

of those First Degree Felonies. Those will be imposed 

consecutively with each other for an accumulative ten years [sic] 

term. Those will be designated mandatory prison terms. 

Concurrent thirty-six month term on the Third Degree Felony 

will be imposed. Costs will be assessed to the Defendant. 

Reimbursement will be ordered to the MAN Unit in the amount 
Case No. 4-16-16 

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of twenty-three hundred dollars. Court will accept his affidavit 

of indigency and not impose mandatory fines, would otherwise be 

required. 

It’s the determination of the Court that the consecutive terms are 

necessary to protect the public in light of the serious amount of 

drugs involved in this matter, his ongoing significant criminal 

history, the threat that he poses to the community by continued 

criminal behavior. 

Doc. 24 at 12-13. A review of the record indicates that the trial court determined 

that consecutive sentences were necessary to protect the public, that Rodriquez had 

a lengthy criminal history, and that his crimes involved a serious amount of drugs. 

Although the trial court could have been clearer in the language used at the hearing, 

the statements of the trial court regarding the serious amount of drugs involved and 

the danger to the public equate “to a finding that consecutive sentences are not 

disproportionate to the seriousness of the offender’s conduct and to the danger the 

offender poses to the public”. State v. Fields, 10th Dist. Franklin No. 16AP-417. 

2017-Ohio-661, ¶20. These statements allow this court to determine that the trial 

court engaged in the correct analysis as to the proportionality of the sentence. A 

review of the record shows that the evidence was sufficient to support the trial 

court’s findings. The trial court then made all the necessary findings in the 

sentencing entry. Thus, the trial did not fail to consider the proportionality of the 

sentence and the fourth assignment of error is overruled. 
Case No. 4-16-16 

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{¶13} Having found no error prejudicial to the appellant in the particulars 

assigned and argued, the judgment of the Court of Common Pleas of Defiance 

County is affirmed. 

Judgment Affirmed 

PRESTON, P.J. and SHAW, J., concur. 

/hls