Opinion
No. 107827
10-22-2020
STATE OF OHIO, Plaintiff-Appellee, v. RICARDO LOZADA, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James Gallagher, Assistant Prosecuting Attorney, for appellee. Eric M. Levy, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-623257-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James Gallagher, Assistant Prosecuting Attorney, for appellee. Eric M. Levy, for appellant. SEAN C. GALLAGHER, P.J.:
{¶ 1} This cause is before us on remand from the Ohio Supreme Court for further review of the decision released July 25, 2019. Ricardo Lozada pleaded guilty to two counts of aggravated robbery, including attendant firearm specifications, and one count of grand theft of a motor vehicle. Several other counts, including aggravated robbery against a third victim and having a weapon while under disability, were nolled. The trial court sentenced Lozada to an aggregate term of 14 years in prison. The aggregate term is comprised of ten-year sentences on two aggravated robbery counts, along with a one- and a three-year firearm specification attached to each respective count, and a one-year sentence on the grand theft count. The underlying sentences were imposed concurrently, and the sentences on the one-and three-year firearm specifications that survived for sentencing were imposed consecutively by operation of law.
{¶ 2} Originally, in the divided panel decision in Lozada, 8th Dist. Cuyahoga No. 107827, 2019-Ohio-3040, the plea was reversed under the authority established in State v. Miller, 8th Dist. Cuyahoga No. 105363, 2018-Ohio-843, in which it was concluded that the trial court neglected to ensure that the defendant understood that his guilty pleas constituted a waiver of his constitutional rights because the trial court failed to expressly notify the defendant that he was "waiving" his rights. Miller at ¶ 16. The trial court instead explained the concept of waiver through discussing the rights that the defendant would have at trial. Id. In State v. Miller, Slip Opinion No. 2020-Ohio-1420, the Ohio Supreme Court concluded that such a rigid application of Crim.R. 11 was not tenable based on the plain language of Crim.R. 11, and in order to strictly comply with the rule, the trial court need only to advise the defendant, "in a manner reasonably intelligible to the defendant, that the plea waives" his constitutional rights. Id. at ¶ 1. As a result in this case, the trial court's discussion focusing on the rights that would be had at trial was sufficient to convey the concept of waiver. Id. Accordingly, in State v. Lozada, Slip Opinion No. 2020-Ohio-3756, we were directed to resolve the remaining assignments of error left unaddressed by the original panel decision.
{¶ 3} Lozada and an accomplice accosted a family as they were unloading groceries from their vehicle near the entrance to the family's building. Both Lozada and the accomplice brandished firearms and ordered the family away from the vehicle. When the family complied, the duo jumped in the vehicle and sped away. The encounter was memorialized by a security camera. The victims immediately notified the authorities who were able to locate Lozada based on the description of the stolen vehicle. Lozada was apprehended after a brief attempt to resist arrest.
{¶ 4} With respect to the remaining assignments of error, Lozada claims that the trial court erred by failing to conduct a competency hearing, first requested on the morning of trial, that the "sentence" imposed by the trial court is not supported by the record, and in the alternative, that the cumulative errors deprived Lozada of a "fair trial" that affected the knowing, voluntary, and intelligent nature of his guilty plea.
{¶ 5} We need not address Lozada's argument relying on the cumulative-error doctrine. "Under this doctrine, a conviction will be reversed when the cumulative effect of errors in a trial deprives a defendant of a fair trial even though each of the numerous instances of trial-court error does not individually constitute cause for reversal." (Emphasis added.) State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. Lozada has not cited any authority for the proposition that the cumulative-error doctrine applies to guilty pleas. App.R. 16(A)(7). The cumulative-error doctrine rests on the principle that minor errors throughout the proceeding individually deemed harmless, i.e., errors that do not affect a defendant's substantial rights, may aggregate to impact the overall integrity of a conviction. Such a notion is inapplicable to challenging the knowing, voluntary, and intelligent nature of a guilty plea. If a guilty plea is not knowingly, voluntarily, and intelligently entered, any such error cannot be deemed harmless under Crim.R. 52(A) — if error at all in this case in light of Miller, Slip Opinion No. 2020-Ohio-1420. Accordingly, we need not address Lozada's argument regarding the cumulative-error doctrine and the knowing, voluntary, and intelligent nature of his guilty plea.
{¶ 6} With respect to his argument challenging his ten-year sentences on the aggravated robbery counts, we find no error. In this case, the trial court expressly "considered all required facts of the law[,]" found that "prison [was] consistent with the purposes of R.C. 2929.11" and also considered all the mitigation evidence presented by Lozada at the sentencing hearing. Under R.C. 2953.08(A), the nonmaximum sentences of ten-year prison terms were not contrary to law. State v. Jacinto, 8th Dist. Cuyahoga No. 108944, 2020-Ohio-3722, ¶ 128. Accordingly, there is no statutory right to appeal the nonmaximum sentences imposed in this case. Under R.C. 2953.08(A)(1), only a maximum sentence imposed upon an individual felony offense may be appealed. However, an appellate court may review a sentence, such as the ones at issue in this case, that is not contrary to law and was imposed solely after consideration of R.C. 2929.11 and 2929.12 under R.C. 2953.08(G). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23; State v. Russell, 8th Dist. Cuyahoga No. 107215, 2019-Ohio-704, ¶ 3.
{¶ 7} We are aware that Marcum has been recently criticized and that Marcum at ¶ 23 has been deemed to be "errant language" and dictum relied upon by "flawed decisions." (Kennedy, J., concurring in judgment only). State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, ¶ 36, 41. Nonetheless, it cannot be ignored that the sentence under review in Marcum itself fell into the unreviewable category under R.C. 2953.08(A)(1)-(5). The sentence being reviewed in Marcum was not contrary to law under R.C. 2953.08(A)(4). Marcum at ¶ 7; State v. Marcum, 2014-Ohio-4048, 19 N.E.3d 540, ¶ 23 (4th Dist.) (defendant conceded her sentence was not contrary to law). Further, the sentence was a ten-year term, imposed on a first-degree felony drug offense, the maximum sentence for which was 11 years, and therefore not a maximum sentence under R.C. 2953.08(A)(1) or a sex offense under R.C. 2953.08(A)(3). Marcum at ¶ 4. Some length of the prison term was mandatory under R.C. 2925.04(C)(3) for the offense at issue, and therefore, R.C. 2929.13(B) (discretionary prison terms in lieu of community control sanctions) was not specified as being applicable and the sentence did not consist of an additional prison term imposed under R.C. 2929.14(B)(2)(a) for the purposes of R.C. 2953.08(A)(2) and (A)(5). See id. Thus, no provision under R.C. 2953.08(A) authorized any court to review the sentence in Marcum, but the sentence was nonetheless reviewed and the appellate court's own review of that sentence was affirmed with analysis. Marcum at ¶ 23-24.
{¶ 8} It therefore suffices that an appellate court may review an individual, sentence that is not contrary to law and was imposed solely after consideration of R.C. 2929.11 and 2929.12 under R.C. 2953.08(G). Marcum at ¶ 23; State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 10 (citing Marcum at ¶ 23 as controlling on issues outside the scope of R.C. 2953.08(A)); see also State v. Anderson, 2d Dist. Clark No. 2019-CA-80, 2020-Ohio-4083, ¶ 23; State v. Tressler, 6th Dist. Williams No. WM-19-005, 2020-Ohio-1164, ¶ 18; State v. Rivers, 7th Dist. Mahoning No. 18 MA 0051, 2018-Ohio-5425, ¶ 6; State v. Treadwell, 10th Dist. Franklin No. 19AP-304, 2020-Ohio-2736, ¶ 14; State v. McClenton, 11th Dist. Ashtabula No. 2017-A-0091, 2018-Ohio-5378, ¶ 29. Until the Ohio Supreme Court overrules the unanimous Marcum decision in which it was concluded that a nonmaximum sentence imposed solely upon consideration of R.C. 2929.11 and 2929.12 could be reviewed consistent with R.C 2953.08(G), we are beholden to follow it.
{¶ 9} Despite our ability to review the individual, nonmaximum sentences, however, Lozada is asking this court to essentially conduct a de novo review because the ten-year sentence imposed for each aggravated robbery count was "excessive and did not meet the underlying principals [sic] and purposes of felony sentencing." Even under the Marcum standard, upon which Lozada expressly relies, he must demonstrate by clear and convincing evidence that the record does not support the sentence. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23. Such review has been classified as being deferential to the trial court's conclusions. See Rahab at ¶ 10. On this point, Lozada's claim — that a "less severe prison sentence would have met the purpose of punishment while also meeting the other principals [sic] and purposes of sentencing regarding protecting the public and rehabilitation by using the minimum sanction possible" — does not rise to this level. App.R. 16(A)(7). Lozada's sole claim is that there are mitigating factors that he would have this court accept despite the fact that the trial court expressly found little weight to such factors. Any review, even under Marcum at ¶ 23, is deferential to the trial court's considerations. Rahab at ¶ 10, citing R.C. 2953.08(G). Being deferential, we cannot accept Lozada's invitation to solely review the mitigating factors he presented but that the trial court rejected based on the totality of the sentencing factor considerations. We cannot conclude, based on the arguments presented, that the record clearly and convincingly does not support the individual, ten-year sentence imposed on each aggravated robbery count, and the relevant assignment of error is overruled.
{¶ 10} And finally, Lozada claims that the trial court failed to conduct "a proper competency hearing with a report prepared by a medical professional necessary to make a competency determination prior to accepting [his] guilty plea" and, as a result, committed reversible error. Thus, it appears that Lozada is claiming that the trial court erred in failing to order a competency evaluation after the issue was first raised on the morning of trial. A defendant is presumed to be competent and bears the burden of establishing that he or she is incompetent by a preponderance of the evidence. State v. McNeir, 8th Dist. Cuyahoga No. 105417, 2018-Ohio-91, ¶ 23. Appellate review of a trial court's competency determination is limited to the abuse-of-discretion standard. State v. Ellis, 8th Dist. Cuyahoga No. 98538, 2013-Ohio-1184, ¶ 31.
{¶ 11} Under R.C. 2945.371(A), if the issue of a defendant's competence is timely raised, "the court may order one or more evaluations of the defendant's present mental condition or, in the case of a plea of not guilty by reason of insanity, of the defendant's mental condition at the time of the offense charged." (Emphasis added.) Id.; R.C. 2945.37(C) (the court shall conduct a hearing on the offender's competency unless an evaluation is ordered, in which case the court shall conduct a hearing within ten days of the report being issued). An evaluation is not statutorily required. State v. Pennington, 8th Dist. Cuyahoga No. 100964, 2014-Ohio-5426, ¶ 25, citing State v. Woodley, 8th Dist. Cuyahoga No. 80732, 2003-Ohio-1950, ¶ 26, and State v. Johnson, 9th Dist. Summit No. 25620, 2011-Ohio-6417, ¶ 12. And the right to an evaluation does not rise to the level of being a constitutional guarantee unless the record contains "'sufficient indicia of incompetence,' such that the inquiry is necessary to ensure the defendant's right to a fair trial." State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 160, quoting State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 156, and State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995). In this case, Lozada has failed to reference or even identify any indicia of incompetence that would support a claim necessitating the constitutional analysis with respect to his right to an evaluation. App.R. 16(A)(7).
{¶ 12} The sole remaining question is whether the trial court conducted the statutorily required hearing. Lozada argues that no hearing was conducted. Lozada raised the issue of competency on the morning of trial. After a brief colloquy, the trial court concluded that an evaluation was unnecessary and that Lozada was competent to stand trial based on the nature of the request (limited to the suicidal ideation claim), Lozada's failure to advance the issue earlier in the pretrial process, and Lozada's response to the trial court's inquiry with counsel present. The colloquy, although brief, constituted the "hearing" and satisfied the statutory concerns. There is no requirement under Ohio law that a hearing must be separately conducted or on a future date. Pruszynski v. Reeves, 117 Ohio St.3d 92, 2008-Ohio-510, 881 N.E.2d 1230, ¶ 9 ("hearing" is not generally defined under the Revised Code but includes the ability to present evidence beyond that which is presented in a brief). Further, Lozada did not object to the cursory nature of the competency inquiry; he objected only to the trial court's refusal to order an evaluation before reaching a conclusion as to Lozada's competency to stand trial, which was not constitutionally or statutorily required in this case based on the aforementioned analysis.
It should be noted that Lozada's argument focuses on his statutory rights, not his constitutional ones as announced in State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986). Although at times Bock has been distilled into the singular proposition that "the failure to hold a mandatory competency hearing is harmless error where the record fails to reveal sufficient indicia of incompetency," see, e.g., McNeir at ¶ 27, we do not read Bock in that broad of a fashion. Bock concluded that the constitutional right implicated by "[t]he failure to hold a competency hearing is harmless error where the defendant proceeds to participate in the trial, offers his own testimony in defense and is subject to cross-examination, and the record fails to reveal sufficient indicia of incompetency." (Emphasis added.) Id. at paragraph one of the syllabus; see also State v. Miller, 2017-Ohio-7091, 95 N.E.3d 832, ¶ 9-10 (8th Dist.), citing State v. Flanagan, 2017-Ohio-955, 86 N.E.3d 681 (8th Dist.) (distinguishing Bock based on the fact that the defendant had pleaded guilty and did not testify through a trial). The holding from Bock is stated in the conjunctive, and although at times that holding has been condensed for the sake of brevity, it cannot stand for the singular proposition of law that failing to hold a hearing constitutes harmless error in the absence of sufficient indicia of incompetency in all cases.
{¶ 13} This is not a case in which the court failed to hold a competency hearing, but instead an impromptu hearing was conducted upon Lozada's request and the trial court rendered a decision. It cannot be concluded that the trial court abused its discretion in deeming Lozada competent to stand trial when the record is devoid of any indicia of incompetency upon which the abuse of discretion can be demonstrated. Lozada's claim — that the court erred in failing to conduct a hearing or to order an evaluation — is without merit, and the final assignment of error is overruled.
{¶ 14} We affirm the convictions.
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 convictions having been affirmed, any bail pending 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. /s/_________
SEAN C. GALLAGHER, PRESIDING JUDGE KATHLEEN ANN KEOUGH, J., CONCURS;
EILEEN A. GALLAGHER, J., CONCURS IN JUDGMENT ONLY