[Cite as State v. Corchardo, 2017-Ohio-4390.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO 

 PLAINTIFF-APPELLEE 

VS. 

BRENDALIZE CORCHADO 

 DEFENDANT-APPELLANT 

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CASE NO. 16 MA 0155 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Municipal 

Court of Youngstown, Mahoning County, 

Ohio 

Case No. 16 CRB 778 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee Attorney Dana Lantz 

Youngstown City Prosecutor 

Attorney Jeffrey Moliterno 

Assistant Prosecutor 

26 S. Phelps Street, 4th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant Attorney Edward Czopur 

Attorney James Gentile 

42 North Phelps Street 

Youngstown, Ohio 44503 

JUDGES: 

Hon. Mary DeGenaro 

Hon. Cheryl L. Waite 

Hon. Carol Ann Robb 

 

 

 Dated: June 16, 2017 
[Cite as State v. Corchardo, 2017-Ohio-4390.]

DeGENARO, J. 

{¶1} Defendant-Appellant Brendalize Corchado appeals the trial court 

judgment convicting her of one count of assault and imposing a 90-day sentence. 

Corchado argues her sentence was erroneous because it resulted from the trial 

court's bias against her. She also argues that trial counsel was constitutionally 

ineffective for failing to move for disqualification of the trial court judge following the 

announcement of the verdict. As Corchado's assignments of error are meritless, the 

judgment of the trial court is affirmed. 

{¶2} Corchado was charged with one count of assault, R.C. 2903.13, a firstdegree misdemeanor, in connection with a road rage incident. She pled not guilty, 

retained counsel, and the matter proceeded to a bench trial. 

{¶3} Testimony by the victim Tanya Trevathan and her boyfriend Joseph 

McGraw established that Trevathan was riding as a front passenger in McGraw's car. 

As they were driving, a vehicle operated by Corchado disregarded a stop sign and 

almost struck McGraw's vehicle. McGraw yelled obscenities at Corchado and the two 

vehicles parted ways. Soon thereafter, Corchado drove up behind the victim, and, 

along with another vehicle driven by Corchado's boyfriend, boxed McGraw's vehicle 

in, forcing it to a stop. Corchado's four-month-old child was in her vehicle during the 

incident. 

{¶4} Corchado and her boyfriend then approached McGraw's vehicle. 

Corchado struck Trevathan through the open passenger window, causing 

Trevathan's face to bleed; she hit Corchado in return. McGraw got out of the car and 

according to Trevathan and McGraw, Corchado's boyfriend grabbed a machete from 

his vehicle, causing McGraw to retreat and drive away with Trevathan until police 

could arrive. Trevathan later found Corchado's keys on the front passenger-side floor 

of the McGraw's vehicle. A machete was never recovered by police. 

{¶5} Corchado testified in her own defense and agreed that a road rage 

incident occurred and that McGraw's car did end up blocked in the road. She blamed 

McGraw for starting the incident, alleging he had gestured with his middle finger to 

her and "brake-checked" while driving in front of her. She admitted she left her child 
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in her vehicle and approached McGraw's vehicle. Although she denied throwing the 

first punch into the car, she admitted exchanging blows with Trevathan. Photographs 

of Trevathan and Corchado's injuries were admitted into evidence. 

{¶6} During closing arguments, the State focused on the issue of credibility 

and argued the testimony of Corchado was not credible in that she wanted the trial 

court to believe that although she left her vehicle and approached the victim's car 

with keys in hand, she was not the primary aggressor. 

{¶7} The trial court found Corchado guilty of assault as charged. Sentencing 

was continued so that a pre-sentence investigation could be prepared. Following a 

sentencing hearing, the trial court ordered a mental health evaluation, anger 

management counseling and imposed a 90-day jail term as recommended by the 

PSI, to be followed by two years of intensive probation. Corchado was also ordered 

to pay a fine, plus court and supervision costs. Finally, Corchado was ordered to 

have no contact with the victim. Corchado successfully moved the trial court for a 

stay of her sentence pending appeal. 

Misdemeanor Sentencing 

{¶8} In her first of two assignments of error, Corchado asserts: 

Appellant was denied due process of law issued a sentence that is 

contrary to law when the trial court showed prejudice against Appellant 

both during the trial phase and sentencing phase. 

{¶9} "The overriding purposes of misdemeanor sentencing are to protect the 

public from future crime by the offender and others and to punish the offender." R.C. 

2929.21(A). "To achieve those purposes, the sentencing court shall consider the 

impact of the offense upon the victim and the need for changing the offender's 

behavior, rehabilitating the offender, and making restitution to the victim of the 

offense, the public, or the victim and the public." Id. See also R.C. 2929.21(B) (the 

sentence "shall be reasonably calculated to achieve the two overriding purposes* * * 

commensurate with and not demeaning to the seriousness of the offender's conduct 
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and its impact on the victim, and consistent with sentences imposed for similar 

offenses committed by similar offenders.") 

{¶10} Pursuant to R.C. 2929.22(A), trial courts imposing a misdemeanor 

sentence have the "discretion to determine the most effective way to achieve the 

purposes and principles of sentencing" provided in R.C. 2929.21. Unless a specific 

sentence is required, a court that imposes a sentence upon an offender for a 

misdemeanor may impose any sanction or combination of sanctions under R.C. 

2929.24 through 2929.28. R.C. 2929.22(A). 

{¶11} Under R.C. 2929.22(B)(1), the court shall consider seven factors in 

determining the appropriate sentence for a misdemeanor, including the nature and 

circumstances of the offense, whether the offender has a history of criminal activity, 

the offender's history and character relative to the risk of being a danger to others 

and the circumstances of the victim. Additionally, the sentencing court may consider 

any other relevant factor. R.C. 2929.22(B)(2). Before imposing a jail term, the trial 

court is to consider the appropriateness of imposing a community control sanction. 

R.C. 2929.22(C). Here, the maximum sentence is 180 days; the trial court imposed 

90 days as recommended in the PSI. 

{¶12} "A misdemeanor sentence is reviewed for an abuse of discretion." Id. at 

¶ 11, citing State v. Nuby, 7th Dist. No. 16 MA 0036, 2016-Ohio-8157, ¶ 10, citing 

State v. Reynolds, 7th Dist. No. 08-JE-9, 2009-Ohio-935, ¶ 9. An abuse of discretion 

means the trial court's decision is unreasonable based upon the record; that the 

appellate court may have reached a different result is not enough to warrant reversal. 

State v. Dixon, 7th Dist. No. 10 MA 185, 2013–Ohio–2951, ¶ 21. 

{¶13} Corchado argues that her sentence was erroneous because the trial 

court showed prejudice against her both during the trial and sentencing phases. 

Corchado has conceded that this court generally cannot consider judicial bias 

arguments regarding sentencing because disqualification is beyond our jursidiction. 

See State v. Power, 7th Dist. No. 12 CO 14, 2013-Ohio-4254. "The only avenue for 

disqualifying a common pleas court judge is via an affidavit of disqualification with the 
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Ohio Supreme Court pursuant to R.C. 2701.03. A defendant cannot forgo this 

procedure and present the issue to the court of appeals in order to avoid Supreme 

Court jurisdiction." State v. Donald, 7th Dist. No. 09 MA 172, 2011-Ohio-3400, ¶ 2. 

{¶14} Still, as this court in Power noted, under rare circumstances "biased 

comments at sentencing can be reviewed for due process violations." Power at ¶ 22. 

We cautioned though that "this is typically reserved for extreme cases or those 

involving a constitutionally protected status." Id., citing State v. Arnett, 88 Ohio St.3d 

208, 218, 724 N.E.2d 793 (2000) (addressing a comment alleged to involve religion). 

{¶15} In Power, the defendant argued that the trial court demonstrated bias 

against him during sentencing and should have recused, due to comments the trial 

court made to the victim's mother (calling her a bad mother because she failed to 

report the abuse to her daughter sooner), and telling the defendant: " "What you did 

here is despicable. It's beyond understanding." Power at ¶ 13. We concluded that 

these comments by the trial court "do not come near the level of a due process 

violation or otherwise constitute reversible sentencing error." We continued: 

[O]pinions formed by the judge on the basis of facts in the record 

do not constitute a basis for a bias or partiality motion unless they 

display a deepseated antagonism that would make fair judgment 

impossible. State v. Dean, 127 Ohio St.3d 140, 2010–Ohio–5070, 937 

N.E.2d 97, ¶ 49. Hence, critical, disapproving, or even hostile 

statements ordinarily do not support a bias or partiality challenge. Id. 

It is not reversible error for a sentencing judge, in explaining his 

sentence, to make critical statements about a defendant's conduct 

based upon the facts of the case presented to the court. See, e.g., 

State v. Cemino, 2d Dist. No. 24442, 2011–Ohio–5690, ¶ 8, 18–20 

(scolding defendant and characterizing what he did as nasty, 

despicable, disgusting, and awful was not indicative of bias); State v. 

Coomer, 12th Dist. Nos. CA2009–09–016, CA2009–09–017, 2010–

Ohio–3474, ¶ 18 (trial court's statement that the defendant was a 
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psychopath may have been ill-advised, but it was not reversible). 

Power at ¶ 26-27. 

{¶16} Corchado takes issue with comments made by the trial court during the 

trial and at sentencing. First, after the prosecutor made his rebuttal closing argument 

and stated Corchado was simply not credible, the trial court stated that Corchado's 

testimony was "totally incredible, absolutely incredible. Shame on you. I have 

absolutely no difficulty at all in finding that you are guilty of assault as charged." The 

trial court made further comments that were intemperate in nature. 

{¶17} The PSI revealed that Corchado had been convicted of another road 

rage incident 11 years prior. During sentencing several weeks later, in addition to 

other intemperate comments, the trial court expressed its disgust for Corchado's 

"immature" and "ridiculous" conduct and shamed Corchado as a mother for acting in 

such a manner. 

{¶18} These comments, and others made by the trial court, are akin to those 

in Power, and were at times ill-advised and inappropriate. Nonetheless, the trial 

court's statements do not rise to the level of a due process violation or reversible 

sentencing error. Moreover, Corchado cannot demonstrate prejudice. Corchado had 

a criminal record that included a road rage conviction 11 years earlier where 

Corchado attacked another driver. After the initial confrontation in this case, 

Corchado returned with her boyfriend who was driving a second vehicle and pursued 

Trevathan and McGraw, blocking that vehicle in and forcing it to stop. Corchado then 

left her four-month-old baby in her car in order to assault Trevathan. 

{¶19} Despite the strong language used by the trial court, it still imposed the 

sentence recommended in the PSI, which was well short of the 180-day maximum 

sentence Corchado could have received for the conviction. See R.C. 2929.24(A)(1). 

Thus, the 90-day sentence imposed by the trial court does not constitute an abuse of 

discretion. Accordingly, Corchado's first assignment of error is meritless. 

Ineffective Assistance of Counsel 
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{¶20} In her second and final assignment of error, Corchado asserts: 

Appellant was denied the effective assistance of counsel as evinced by 

trial counsel's failure to move for disqualification of the trial judge 

following the announcement of the verdict. 

{¶21} To prove ineffective assistance of counsel, the defendant must satisfy a 

two-prong test; that counsel's performance has fallen below an objective standard of 

reasonable representation, and that he was prejudiced by counsel's performance. 

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), at paragraph two of the 

syllabus. To demonstrate prejudice, the defendant must prove that, but for counsel's 

errors, the result of the trial would have been different. Id., paragraph three of the 

syllabus. In Ohio, a properly licensed attorney is presumed to be competent and the 

burden is on the defendant to prove otherwise. State v. Hamblin, 37 Ohio St.3d 153, 

155, 524 N.E.2d 476 (1988). Moreover, counsel is not deemed deficient for failing to 

file meritless motions, State v. Kelly, 179 Ohio App.3d 666, 2008–Ohio–6598, 903 

N.E.2d 365, ¶ 76 (7th Dist.). 

{¶22} The Ohio Supreme Court has explained: "Because a sentencing judge 

must ordinarily explain the reasons for imposing a sentence, judicial comments 

during sentencing, even if disapproving, critical, or heavy-handed, do not typically 

give rise to a cognizable basis for disqualification." In re Disqualification of Zmuda, --- 

N.E.3d ----, 2017-Ohio-317, ¶ 6, quoting In re Disqualification of Winkler, 135 Ohio 

St.3d 1271, 2013-Ohio-890, 986 N.E.2d 996, ¶ 9. The Court continued: 

[t]he judge who presides at trial may, upon completion of the 

evidence, be exceedingly ill disposed towards the defendant, who has 

been shown to be a thoroughly reprehensible person. But the judge is 

not thereby recusable for bias or prejudice, since his knowledge and the 

opinion it produced were properly and necessarily acquired in the 
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course of the proceedings, and are indeed sometimes (as in a bench 

trial) necessary to completion of the judge's task. 

Zmuda at ¶ 6, quoting Liteky v. United States, 510 U.S. 540, 550–551, 114 S.Ct. 

1147, 127 L.Ed.2d 474 (1994). 

{¶23} Thus, although the trial court's comments here were at times ill-advised 

and could be characterized as inappropriate, an affidavit of disqualification would not 

have succeeded. Further, Corchado was not prejudiced. Corchado cannot show that 

the sentence would have been any different with a different judge in light of her prior 

conviction for road rage and the facts of this case as discussed above. Most notably, 

the trial court imposed the sentence recommended in the PSI, well short of the 180 

day maximum sentence Corchado could have received. See R.C. 2929.24(A)(1). 

Thus, the sentence imposed is reasonable. 

{¶24} In sum, both of Corchado's assignments of error are meritless and the 

judgment of the trial court is affirmed. 

Waite, J., concurs. 

Robb, P. J., concurs.