[Cite as State v. Munoz, 2023-Ohio-1896.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 112007

v. :

ERIC MUNOZ, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: June 8, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-18-626156-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Carl M. Felice, Assistant Prosecuting 

Attorney, for appellee. 

Patituce & Associates, LLC, Joseph C. Patituce, Megan M. 

Patituce, and Erin M. Branham, for appellant. 

KATHLEEN ANN KEOUGH, P.J.:

Defendant-appellant, Eric Munoz, appeals from the trial court’s 

judgment finding him in violation of community-control sanctions and sentencing 

him to 18 months in prison. Finding no merit to the appeal, we affirm. 
I. Background

In 2018, in Cuyahoga C.P. No. CR-18-626156, Munoz was indicted in 

a five-count indictment on one count each of drug possession, having weapons while 

under disability, carrying concealed weapons, improperly handling firearms in a 

motor vehicle, and possessing criminal tools. Under a plea agreement, Munoz 

pleaded guilty to improperly handling firearms in a motor vehicle with a forfeiture 

specification, in violation of R.C. 2923.16(B), a fourth-degree felony, and the 

remaining counts were nolled. The trial court sentenced Munoz to 18 months of 

community-control sanctions and advised him that if he violated the terms of his 

probation, he could be sentenced to 18 months in prison. Tr. 32. 

Subsequently, on four separate occasions, the trial court found 

Munoz in violation of the terms of his community-control sanctions. Each time, the 

trial court placed him back on probation with an extended probation term. On 

September 7, 2022, the trial court again found Munoz in violation of his communitycontrol sanctions as a result of his convictions by a jury in Cuyahoga C.P. No. CR20-648577 on one count each of gross sexual imposition and endangering children. 

The trial court terminated Munoz’s community-control sanctions and sentenced 

him to 18 months in prison to be served consecutive to the three-year prison 

sentence imposed in CR-648577. This appeal followed. 
II. Law and Analysis

A. Ineffective Assistance of Counsel

During the combined probation violation and sentencing hearing, 

defense counsel stated that he would stipulate to Munoz’s probation violation. Tr. 

76. In his first assignment of error, Munoz contends that counsel’s stipulation 

deprived him of his constitutional right to effective assistance of counsel. 

The Sixth Amendment to the United States Constitution and Article 

I, Section 10 of the Ohio Constitution provide that defendants in all criminal 

proceedings shall have the assistance of counsel for their defense. The United States 

Supreme Court has recognized that “the right to counsel is the right to effective 

assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984). 

To establish ineffective assistance of counsel, a defendant must 

demonstrate (1) that counsel’s performance fell below an objective standard of 

reasonable performance, and (2) that he was prejudiced by the deficient 

performance such that but for counsel’s error, the result of the proceedings would 

have been different. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-854 N.E.2d 

1038, ¶ 205, citing Strickland at 687-688. In evaluating a claim of ineffective 

assistance of counsel, reviewing courts should “indulge a strong presumption” that 

counsel’s performance fell within the wide range of reasonable professional 

assistance. State v. Houston, 8th Dist. Cuyahoga No. 108156, 2019-Ohio-4787, ¶ 13, 

citing Strickland at 689. 
The evidence required to support a probation violation “simply needs 

to be evidence of a substantial nature,” which may be satisfied by a preponderance 

of the evidence standard. State v. Harrington, 3d Dist. Union Nos. 14-03-34 and 

14-03-35, 2004-Ohio-1046, ¶ 19; “Therefore, the state only has to introduce 

evidence tending to show that it was more probable than not that the probationer 

violated the terms of his or her probation.” Id.; see also State v. Reese, 8th Dist. 

Cuyahoga No. 109055, 2020-Ohio-4747, ¶ 21 (the evidence necessary to establish a 

probation violation and revoke community control is “substantial” evidence). 

The evidence establishing Munoz’s probation violation was more 

than merely substantial evidence; the conduct underlying his violation had been 

proved beyond a reasonable doubt by the jury’s convictions in CR-648577. Thus, 

despite Munoz’s argument that counsel should have contested the probation 

violation, there was no legitimate basis upon which counsel could have disputed the 

already-proven violation. In fact, the trial court could have considered any challenge 

to the obviously proven violation to be demonstrative of Munoz’s failure to show 

remorse or accept responsibility for his actions and increased his sentence 

accordingly. See State v. Caver, 8th Dist. Cuyahoga No. 91443, 2009-Ohio-1272, 

¶ 122 (whether an offender shows genuine remorse is a factor for the court to 

consider at sentencing under R.C. 2929.12(D)(5)); State v. Lawrence, 12th Dist. 

Butler Nos. CA-2017-06-078 and CA-2019-03-178 (at sentencing, courts may 

properly consider a defendant’s lack of remorse or failure to take responsibility for 

his actions). 
It is apparent that counsel acted reasonably in conceding the 

probation violation and focusing instead at the sentencing hearing on mitigating 

Munoz’s sentence. See tr. 80-84 (where counsel argued that the court should 

consider a community control sanction instead of prison because Munoz was 

gainfully employed, had support from his family, and would benefit from sex 

offender treatment, which he could not get in prison). 

Because Munoz has not demonstrated that counsel’s performance fell 

below an objective standard of reasonable representation — the first prong of the 

Strickland test — we need not consider whether he was prejudiced by counsel’s 

performance. State v. Copeland, 8th Dist. Cuyahoga No. 102952, 2016-Ohio-1537, 

¶ 40 (the failure to prove one prong of the Strickland two-part test makes it 

unnecessary for a court to consider the other prong). The first assignment of error 

is overruled. 

B. The Trial Court’s Finding of a Probation Violation

In his second assignment of error, Munoz asserts that the trial court 

erred in finding him to be in violation of his community-control sanctions. Other 

than asserting that the trial court “erred in multiple ways” in CR-648577, he makes 

no argument to support his contention that the trial court erred in finding him in 

violation of his community-control sanctions in this case, nor does he point to 

anything in the record or offer any legal analysis to support his argument. 

It is fundamental that the appellant bears the burden of affirmatively 

demonstrating error on appeal. Catudal v. Catudal, 10th Dist. Franklin No. 14AP-
749, 2015-Ohio-1559, ¶ 23, citing Pennant Moldings, Inc. v. C&J Trucking Co., 11 

Ohio App.3d 248, 251, 464 N.E.2d 175 (12th Dist.1983). Under App.R. 16(A)(7), an 

appellant “must present [his or] her contentions with respect to each assignment of 

error presented for review, in addition to the reasons in support of those 

contentions, with citations to the authorities, statutes, and parts of the record upon 

which [the appellant] relies.” Catudal at id. “Absent the foregoing, unsubstantiated 

assertions will not be considered on appeal.” Id. It is not appropriate for this court 

to construct legal arguments in support of an appellant’s appeal, id., and “we are not 

obliged to scour the record in search of evidence to support an appellant’s 

assignment of error.” State v. Patterson, 2017-Ohio-8318, 99 N.E.3d 970, ¶ 37 (8th 

Dist.). 

Munoz has not presented any record evidence or reasons in support 

of the argument advanced in his second assignment of error. Thus, we need not 

consider his assignment of error. Nevertheless, we note that in a contemporaneous 

decision, this court affirmed Munoz’s convictions for gross sexual imposition and 

endangering children in CR-648577, upon which his probation violation in this case 

was based. See State v. Munoz, 8th Dist. Cuyahoga No. 112006, __-Ohio-__.

Accordingly, there is no merit to Munoz’s argument and the second assignment of 

error is overruled. 

Judgment affirmed. 

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.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and

SEAN C. GALLAGHER, J., CONCUR