[Cite as State v. Gomez, 2017-Ohio-9072.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NO. 17 MA 0001 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

ROLANDO PENA GOMEZ ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Mahoning County, 

Ohio 

Case No. 16 CR 599 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Paul J. Gains 

Mahoning County Prosecutor 

Atty. Ralph M. Rivera 

Assistant Prosecuting Attorney 

21 West Boardman Street, 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant: Atty. Christopher P. Lacich 

Roth, Blair, Roberts, Strasfeld 

 & Lodge, LPA 

100 East Federal Street, Suite 600 

Youngstown, Ohio 44503 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Carol Ann Robb 

Dated: December 15, 2017
[Cite as State v. Gomez, 2017-Ohio-9072.]

WAITE, J. 

{¶1} Appellant Rolando Pena Gomez appeals the conviction and sentence 

of the Mahoning County Court of Common Pleas following his plea of guilty to three 

counts of trafficking in cocaine, one count of trafficking in heroin and one count of 

possession of heroin as well as a forfeiture specification that involved a motor 

vehicle. Appellant contends his plea was not made knowingly, intelligently and 

voluntarily and that he should be permitted to withdraw his plea. Appellant also 

asserts his trial counsel was ineffective for failing to seek a withdrawal of his guilty 

plea. Based on the following, we find Appellant’s guilty plea was knowing, voluntary 

and intelligent and his sentence was not clearly and convincingly contrary to law. 

Moreover, trial counsel was not ineffective as Appellant has failed to establish that 

counsel’s performance was deficient and that Appellant was prejudiced. Therefore, 

the judgment of the trial court is affirmed. 

Factual and Procedural History 

{¶2} Appellant was indicted on a number of drug-related offenses relating to 

the possession and trafficking of cocaine and heroin. Appellant was aided by an 

interpreter throughout all trial court proceedings as he speaks only Spanish. On 

October 6, 2016, Appellant pleaded guilty to counts one, two, and three, trafficking in 

cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(f), felonies of the first degree; count 

four, trafficking in heroin in violation of R.C. 2925.03(A)(1), (C)(6)(f), a felony in the 

first degree; and count six, possession of heroin in violation of R.C. 2925.11(A), 

(C)(6)(e), a felony in the first degree; with a forfeiture specification pursuant to R.C. 

2981. 
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{¶3} An initial sentencing hearing was held on December 1, 2016. The state 

recommended a term of eight to ten years of incarceration. Appellant’s counsel 

asked for a three-year sentence. At the sentencing hearing, there was some 

discrepancy regarding the presentence investigation (“PSI”) report. The PSI 

contained no prior criminal history but the prosecutor said he was aware Appellant 

served a prior federal prison sentence on drug-related charges. The sentencing was 

postponed pending a review of Appellant’s prior criminal history. 

{¶4} Sentencing resumed on December 8, 2016, and a discussion regarding 

Appellant’s criminal history was held. The updated PSI reflected that Appellant had 

been convicted of numerous misdemeanors in other jurisdictions and had two prior 

felony convictions. (12/8/16 Sentencing Hrg. Tr., p. 5.) Appellant’s counsel again 

requested a shorter term than the eight to ten years recommended by the state. 

Appellant, through the interpreter, gave a statement where he discussed the death of 

both parents when he was a child and his struggle with substance abuse. 

{¶5} After noting Appellant’s prior criminal history, his addiction, and the 

large amount of cocaine and heroin confiscated in the instant matter, the trial court 

sentenced Appellant to eight years on each count to be served concurrently, for a 

total prison term of eight years. Appellant filed this timely appeal. 

ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT ERRED AND IMPOSED A SENTENCE CLEARLY 

AND CONVINCINGLY CONTRARY TO LAW, BY FAILING TO CALL A 

RECESS OR MAKE FURTHER INQUIRY AS TO WHETHER 
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DEFENDANT-APPELLANT WANTED TO WITHDRAW HIS GUILTY 

PLEA TO COUNTS ONE, TWO, THREE, FOUR AND SIX, UPON HIS 

STATEMENT ON THE RECORD AT HIS SENTENCING HEARING, 

THAT HE MISUNDERSTOOD THE TERMS OF HIS RULE 11 PLEA 

AGREEMENT AND/OR THAT HE WAS INNOCENT OF COUNT SIX, 

TRAFFICKING IN HEROIN. 

{¶6} It should be noted that in reviewing a felony sentence, “an appellate 

court may vacate or modify a felony sentence on appeal only if it determines by clear 

and convincing evidence that the record does not support the trial court’s findings 

under relevant statutes or that the sentence is otherwise contrary to law.” State v. 

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. 

{¶7} “When a defendant enters a plea in a criminal case, the plea must be 

made knowingly, intelligently, and voluntarily. Failure on any of those points renders 

enforcement of the plea unconstitutional under both the United States Constitution 

and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 

(1996). Crim.R. 11 requires the trial court to follow a certain procedure for accepting 

guilty pleas in felony cases. Before the court can accept a guilty plea to a felony 

charge, it must conduct a colloquy with the defendant to determine that he or she 

understands the plea being entering and the rights voluntarily waived. Crim.R. 

11(C)(2). 

{¶8} Crim.R. 11(C)(2)(c) sets forth the constitutional rights that the defendant 

waives by entering the guilty plea. 
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A trial court must strictly comply with Crim.R. 11(C)(2)(c) and orally 

advise a defendant before accepting a felony plea that the plea waives 

(1) the right to a jury trial, (2) the right to confront one’s accusers, (3) 

the right to compulsory process to obtain witnesses, (4) the right to 

require the state to prove guilt beyond a reasonable doubt, and (5) the 

privilege against compulsory self-incrimination. When a trial court fails 

to strictly comply with this duty, the defendant’s plea is invalid. (Crim.R. 

11(C)(2)(c), applied.) 

State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, syllabus. 

{¶9} Crim.R. 11(C) also sets forth the nonconstitutional rights that a 

defendant must be informed of prior to the trial court’s acceptance of the plea. These 

rights include that: (1) a defendant must be informed of the nature of the charges; (2) 

the defendant must be informed of the maximum penalty involved; (3) the defendant 

must be informed, if applicable, that he is not eligible for probation or the imposition 

of community control sanctions, and (4) the defendant must be informed that after 

entering a guilty plea or a no contest plea, the court may proceed to judgment and 

sentence. Crim.R. 11(C)(2)(a)(b); State v. Philpott, 8th Dist. No. 74392 (Dec. 14, 

2000), citing McCarthy v. U.S., 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 

(1969). When discussing nonconstitutional rights, the trial court must substantially 

comply with the Criminal Rules. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 

474 (1990). Substantial compliance is defined as whether, under the totality of the 

circumstances, the defendant subjectively understands the implications of his plea 
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and the rights he is waiving. Id. Moreover, when nonconstitutional aspects of the 

Crim.R. 11 plea colloquy are at issue, the defendant must show prejudice before a 

plea will be vacated. Veney at ¶ 17. “To demonstrate prejudice in this context, the 

defendant must show that the plea would otherwise not have been entered.” Id. at 

¶ 15, citing Nero at 108. 

{¶10} Appellant contends that he did not enter his plea in a knowing, 

voluntary or intelligent fashion. Hence, his sentence is clearly and convincingly 

contrary to law. Appellant contends that because he indicated at the final sentencing 

hearing that he did not think he was going to get sentenced to an eight year term of 

imprisonment and he professed his innocence to the charge of trafficking in heroin, 

the trial court failed to substantially comply with Crim.R. 11 because the court was 

required to grant a recess to give Appellant an opportunity to speak with his counsel. 

{¶11} A review of the transcript from Appellant’s plea hearing reveals the trial 

court fully complied with Crim.R. 11(C)(2)(c) and fully advised Appellant of the 

constitutional rights he was waiving by entering a plea of guilty on all of the counts 

including count six, trafficking in heroin. The trial court substantially complied when 

advising Appellant regarding the nonconstitutional aspects of the Crim.R. 11 

colloquy. Through his interpreter, Appellant stated several times that he fully and 

completely understood his rights, both constitutional and nonconstitutional, and all 

aspects of his plea agreement. (10/6/16 Plea Hrg. Tr., pp. 5-15.) In fact, there is no 

indication in the record that there was any point during his plea hearing where 

Appellant misunderstood or was not completely aware of the circumstances 
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surrounding his guilty plea. The trial court discussed Appellant’s potential sentences 

at the plea hearing: 

[Appellant], when we come back here for sentencing, the state [sic] of 

Ohio is going to recommend a period of imprisonment between eight to 

ten years. Attorney Smith is going to ask for something less than that. 

I don’t know enough about you, and I don’t know enough about this 

case to tell you what sentence I’m going to impose, but I will tell you 

based upon your acceptance of responsibility, that I will not exceed 

what the prosecutor is asking for. So the worst sentence that can be 

imposed would be ten years, but you are free to ask for something less. 

Do you understand all of that? 

(10/6/16 Plea Hrg. Tr., p. 12.) 

{¶12} Appellant answered that he understood the statement. At the first 

sentencing hearing the record is equally devoid of any indication from Appellant or 

Appellant’s counsel that he did not understand the terms of his plea agreement or 

wished to withdraw his plea. There was extensive discussion about Appellant’s prior 

criminal history and it was agreed by the state, Appellant’s counsel and the trial court 

that it would be unwise to proceed with sentencing without a correct presentence 

investigation report. 

{¶13} At his second sentencing hearing, after a discussion regarding the 

updated presentence investigation, there was again no indication that Appellant 

misunderstood the terms of his plea or any of his rights. The trial court asked 
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Appellant if he wished to make a statement, and Appellant, via the interpreter, told 

the trial court about his mother and father dying when he was eleven years old and 

that he has had a severe drug problem. (12/8/16 Sentencing Hrg. Tr., p. 4.) Given 

the opportunity to make a statement, Appellant at no time expressed that he was 

unsure about his plea, that he had questions regarding his plea, or that he wished to 

withdraw his plea. He also did not profess innocence on any of the charges or offer 

any evidence regarding his innocence. The trial court proceeded to sentence 

Appellant, considering the appropriate statutory factors, including his criminal history 

and the large amount of cocaine and heroin recovered from Appellant, to a term of 

eight years of incarceration on each count to be served concurrently. Only then did 

Appellant make the following statement: 

But you said to me that if I -- when I submitted my plea that I wasn’t 

going to get eight years, or I wouldn’t have pled guilty. And also tell him 

that I pled guilty for trafficking in heroin, and I didn’t sell heroin to 

anybody. 

(12/8/16 Sentencing Hrg. Tr., p. 9.) 

{¶14} Appellant contends that at this point the trial court should have called a 

recess so that he could confer with his counsel. However, there is no requirement for 

recess. Appellant’s alleged surprise at the sentence and protestations of innocence 

of the trafficking in heroin charge are belied by his repeated indications at the plea 

hearing and two sentencing hearings that he understood the terms of his plea 

agreement. Moreover, Appellant’s comments at the hearing do not reflect that he 
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was confused or sought explanation. His comments show that he completely 

understood the process but simply disagrees with the number of years to which he 

was sentenced. This, despite the fact that the trial court indicated at the first plea 

hearing that Appellant’s potential sentence could be ten years. Finally, Appellant’s 

counsel filed a motion for reconsideration of sentence based upon the discrepancy 

between Appellant’s sentence and the sentence received by his co-defendant, but at 

no time was a motion to withdraw his guilty plea filed nor was there any indication 

that Appellant’s plea was not validly entered. 

{¶15} Therefore, Appellant’s first assignment of error is without merit and is 

overruled. There is no indication that his plea was not knowingly, voluntarily or 

intelligently made. 

ASSIGNMENT OF ERROR NO. 2 

PLEA COUNSEL WAS INEFFECTIVE FOR FAILING TO CALL FOR A 

RECESS OR MAKE FURTHER INQUIRY TO PROTECT 

DEFENDANT-APPELLANT'S RIGHTS WHEN HIS CLIENT 

INDICATED AT THE SENTENCING HEARING, AND BEFORE THE 

RECORD CLOSED, THAT HE MISUNDERSTOOD THE TERMS OF 

THE RULE 11 PLEA AGREEMENT AND/OR WAS INNOCENT OF 

COUNT SIX, TRAFFICKING IN HEROIN. 

{¶16} Appellant contends he received ineffective assistance of trial counsel 

when counsel failed to call for a recess after Appellant indicated he disagreed with 

the sentence imposed. 
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{¶17} In a claim for ineffective assistance of counsel, a court must indulge in a 

strong presumption that counsel’s performance fell within a wide range of reasonable 

professional assistance. Appellant bears the burden of demonstrating that counsel’s 

performance fell below an objective standard of professional competence. If 

successful, the appellant must then show that he was prejudiced by that deficiency. 

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). 

“Deficient performance” means performance falling below an objective standard of 

reasonable representation. Id. at 687-688. “Prejudice,” in this context, means a 

reasonable probability that, but for counsel's errors, the result of the proceeding 

would have been different. Id. at 694. 

{¶18} An “ineffectiveness claim * * * is an attack on the fundamental fairness 

of the proceeding whose result is challenged,” and that, “the ultimate focus of inquiry 

must be on the fundamental fairness of the proceeding whose result is being 

challenged.” Id. at 697, 670. An appellant's burden when challenging the 

effectiveness of counsel is to demonstrate that some action or inaction by counsel 

operated to undermine or call into question the integrity of the process that resulted 

in conviction. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). 

{¶19} There is no indication here that trial counsel’s performance fell below 

the standard of professional assistance. Counsel advocated for a lesser sentence for 

Appellant based on the mitigating factors presented to the court not only at the first 

sentencing hearing, but also when sentencing resumed one week later. Appellant 

indicated that he had been fully informed of his plea agreement by his counsel and 
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never indicated otherwise. Trial counsel was not required to ask for a recess after 

Appellant was sentenced based on Appellant’s statement that he thought he would 

receive less time and his comment (for the first time) that he was innocent of the 

trafficking in heroin charge. There is no evidence in the record to support Appellant’s 

claim of innocence. Without more, trial counsel had no basis on which to argue that 

Appellant’s plea was not valid. Finally, trial counsel did file a motion for 

reconsideration after sentencing based on the discrepancy in sentencing between 

Appellant and his co-defendant. 

{¶20} Appellant has failed to establish deficient performance by trial counsel. 

As he cannot show even one prong of the Strickland test, Appellant’s second 

assignment of error is without merit and is overruled. 

{¶21} Based on the foregoing, Appellant’s sentence is not clearly and 

convincingly contrary to law. Moreover, Appellant has not demonstrated that his trial 

counsel was ineffective. Therefore, Appellant’s assignments of error are without 

merit and the judgment of the trial court is affirmed. 

Donofrio, J., concurs. 

Robb, P.J., concurs.