[Cite as State v. Hernandez,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT DEFIANCE COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 4-16-27

v.

JAIME O. HERNANDEZ, SR., OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 4-16-28

v.

JAIME O. HERNANDEZ, SR., OPINION

DEFENDANT-APPELLANT.

Appeals from Defiance County Common Pleas Court Trial Court Nos. 05CR09377 and 16CR12576

Judgments Affirmed

Date of Decision: May 15, 2017

APPEARANCES:

W. Alex Smith for Appellant

Russell R. Herman for Appellee Case No. 4-16-27, 4-16-28

SHAW, J.

{¶1} Defendant-appellant, Jaime O. Hernandez, Sr. (“Hernandez”), brings

these appeals from the November 28, 2016, judgments of the Defiance County

Common Pleas Court imposing the balance of Hernandez’s prison term in trial court

case number 05-CR-09377 after Hernandez violated his community control

sanctions and ordering Hernandez to serve a consecutive 10-month prison term in

trial court case number 16-CR-12576 after Hernandez pled no contest to, and was

found guilty of, Possession of Cocaine in violation of R.C. 2925.11(A), a felony of

the fifth degree.1 On appeal, Hernandez argues that he received ineffective

assistance of counsel.

Relevant Facts and Procedural History

{¶2} In trial court case number 05-CR-09377, Hernandez was convicted of

Trafficking in Cocaine in violation of R.C. 2925.03(A), a felony of the third degree.

On April 6, 2006, Hernandez was sentenced to 4 years of community control, with

a 4-year reserved prison term.

{¶3} On January 8, 2010, the State filed a motion to revoke Hernandez’s

community control for various alleged violations. Hernandez admitted to violating

his community control, and the 4-year reserved prison term in case number 05-CR-

09377 was imposed. The 4-year prison term was ordered to be served consecutive

1 Appeal 4-16-27 corresponds to trial court case number 05-CR-09377. Appeal 4-16-28 corresponds to trial court case number 16-CR-12576.

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to a separate 33-month prison term from Defiance County Common Pleas Court

case number 05-CR-09216, which involved three counts of Non Support of

Dependents, all felonies of the fifth degree. Hernandez was thus ordered to serve

an aggregate 81-month prison term at that time.

{¶4} On April 2, 2015, Hernandez was granted early release pursuant to R.C.

2967.19, and he was placed on community control.2 At that time, the trial court

noted that Hernandez had served the entirety of his 33-month prison term in the

separate 05-CR-09216 case for Non Support of Dependents.3

{¶5} On April 12, 2016, the State filed a motion to revoke Hernandez’s

community control, alleging that Hernandez “tested positive for and admitted to

using cocaine.” (05-CR-09377 Doc. No. 51).

{¶6} Based on the same allegations made to revoke Hernandez’s community

control in trial court case number 05-CR-09377, Hernandez was indicted on May 5,

2016, in trial court case number 16-CR-12576 for one count of Possession of

Cocaine in violation of R.C. 2925.11(A)/(C)(4)(a), a felony of the fifth degree. The

indictment alleged that on or about April 11, 2016, Hernandez “did knowingly

2 Revised Code 2967.19 contains an “eighty per cent” release procedure for certain offenders, which is initiated by a written recommendation to the sentencing court by the director of the department of rehabilitation. Should the offender be granted early release based on this provision, the trial court is instructed to place the offender on “one or more appropriate community control sanctions * * * and shall reserve the right to reimpose the sentence that it reduced and from which the offender was released if the offender violates the sanction.” R.C. 2967.19(I). 3 Other than providing background information as to why Hernandez was incarcerated for so long, the 05- CR-09216 case dealing with Non Support of Dependents has no further relevance.

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obtain, possess, or use a controlled substance * * * and the drug involved was

cocaine or a compound, mixture, preparation, or substance containing cocaine in an

amount of less than five grams.” (Doc. No. 1). Hernandez originally pled not guilty

to the charge in the new indictment and he denied violating his community control

in the 05-CR-09377 case.

{¶7} On June 13, 2016, a hearing was held wherein Hernandez admitted to

violating his community control in the 05-CR-09377 case and he pled no contest to

the charge in the 16-CR-12576 indictment. The trial court engaged in a thorough

Criminal Rule 11 dialogue with Hernandez and determined that Hernandez was

acting knowingly, intelligently and voluntarily. The trial court then found “that the

May 5th indictment in fact states the offense of Possession of Cocaine, as a Felony

of the Fifth Degree,” and found Hernandez guilty. (June 13, 2016, Tr. at 11).

{¶8} Hernandez’s disposition on his community control violation from the

05-CR-09377 case and his sentencing from the 16-CR-12576 case were delayed to

see how Hernandez performed under further supervision. When the trial court

delayed Hernandez’s sentencing, Hernandez was warned that if he had any further

issues the trial court would order any sentence in the 16-CR-12576 case to be served

consecutively to the re-imposition of Hernandez’s remaining prior sentence from

the 05-CR-09377 case.

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{¶9} On November 21, 2016, Hernandez’s cases proceeded to disposition

and sentencing. At the hearing, the State noted that Hernandez had received a new

OVI charge and that he had separately tested positive for “Tramadol,” for which

Hernandez did not have a prescription. The trial court then recited Hernandez’s

lengthy criminal history both as a juvenile and as an adult. After giving Hernandez

and his attorney an opportunity to speak, the trial court revoked Hernandez’s

community control in the 05-CR-09377 case, imposing the remainder of his prison

term, and ordered Hernandez to serve 10 months in prison on the 16-CR-12576 case,

consecutive to the 05-CR-09377 case.

{¶10} Judgment entries memorializing Hernandez’s sentence were filed

November 28, 2016. It is from these judgments that Hernandez appeals, asserting

the following assignment of error for our review.

Assignment of Error Appellant received ineffective assistance of counsel [in] violation of his rights under the Sixth and 14th amendments to the United States Constitution in Article I. § 10 of the Constitution of the State of Ohio.

{¶11} In his assignment of error, Hernandez argues that he received

ineffective assistance of counsel. Specifically, he contends that he could not

actually be convicted of Possession of Cocaine based solely upon the presence of

cocaine metabolites in a urine test, thus his attorney was ineffective for allowing

Hernandez to plead no contest to the charge.

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Standard of Review

{¶12} To establish a claim for ineffective assistance of counsel, a defendant

must show that counsel’s performance was deficient and that counsel’s deficient

performance prejudiced him. State v. Phillips, 3d Dist. Allen No. 1–15–43, 2016–

Ohio–3105, ¶ 11, citing State v. Jackson,

, 2005–Ohio–5981, ¶

133, citing Strickland v. Washington,

(1984). The failure to make

either showing defeats a claim of ineffective assistance of counsel. State v. Bradley,

(1989), quoting

. (“[T]here is no reason

for a court deciding an ineffective assistance claim to approach the inquiry in the

same order or even to address both components of the inquiry if the defendant makes

an insufficient showing on one.”).

Argument and Analysis

{¶13} In this case Hernandez argues that he could not be convicted of

Possession of Cocaine based solely on the presence of cocaine metabolites in his

urine, despite pleading no contest to the charge in the indictment. In support of his

argument, Hernandez cites State v. Lowe, 4th Dist. Highland No. 798,

(1993), wherein the Fourth District Court of Appeals determined that

mere presence of cocaine metabolites in a person’s urine is insufficient to

demonstrate the “knowing” element of Possession of Cocaine. Lowe at 755-56.

Hernandez contends that the only evidence the State had against him was his

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positive drug test, thus his attorney was ineffective for allowing him to plead no

contest to the charge.

{¶14} At the outset, we would note that despite Hernandez’s argument that

the State’s only evidence against Hernandez was a positive urine test, in the motion

to revoke Hernandez’s community control in trial court case 05-CR-09377, it was

alleged that Hernandez tested positive for cocaine and that he admitted to using it.

Thus any reliance by Hernandez on Lowe or similar cases reversing a conviction for

possession of drugs based solely on a drug test is misplaced.

{¶15} Notwithstanding that point, Hernandez’s caselaw is made entirely

irrelevant by his no contest plea, which forecloses his ability to challenge the

sufficiency of the evidence against him provided the indictment was sufficient. The

Rules of Criminal Procedure, provide that a “plea of no contest is not an admission

of defendant’s guilt, but is an admission of the truth of the facts alleged in the

indictment.” Crim.R. 11(B). “Where the indictment, information, or complaint

contains sufficient allegations to state a felony offense and the defendant

pleads no contest, the court must find the defendant guilty of the charged offense.”

(Emphasis added.) State v. Bird,

(1998), syllabus. Consequently,

“by pleading no contest to the indictment [an] appellant is foreclosed from

challenging the factual merits of the underlying charge.” (Emphasis added.)

at

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583. As the indictment in this case was sufficient to state a charge of Possession of

Cocaine, Hernandez cannot challenge the factual merits of his case.4

{¶16} Regarding his ineffective assistance of counsel claim specifically,

Hernandez pled no contest to the charge, admitting the truth of the allegations in the

indictment. As a result, “the record before us contains no facts to support his

contention that his counsel was ineffective.” State v. Rothonbuhler, 3d Dist.

Defiance No. 4-03-05,

. Facts were not put into the record to

support Hernandez’s claim to challenge the face of the indictment. “It is impossible

to determine whether the attorney was ineffective in his representation of appellant

where the allegations of ineffectiveness are based on facts not appearing in the

record.” State v. Cooperrider,

(1983). This Court has held

previously an ineffective assistance of counsel claim in similar circumstances of a

no contest plea is more properly reserved for post-conviction petitions and as such

cannot sustain an ineffective assistance of counsel argument on direct appeal.

Rothonbuhler, at ¶¶ 11-13.

{¶17} Finally, Hernandez affirmatively indicated to the trial court during his

Crim.R. 11 plea colloquy that he was satisfied with his attorney. His claims now

4 During the Crim.R. 11 colloquy in this case, Hernandez indicated his understanding that his determination of his guilt would be based upon the allegations in the indictment. The trial court made it clear to Hernandez that when he was “enter[ing] a plea of no contest you’re admitting for the purpose of this proceeding what’s stated in the indictment. There’s not going to be a trial, the State will not have to prove anything. The Court will simply review that indictment. If it states a criminal offense the Court has the power to find you guilty of that crime * * *[.] Do you understand that?” (June 16, 2016, Tr. at 6). Hernandez affirmatively indicated that he understood.

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seem little more than buyer’s remorse considering his disposition and sentencing

were delayed to give him a chance to perform under supervision and when

Hernandez was charged with OVI prior to his sentencing hearing, the trial court

elected to sentence Hernandez to prison on both cases. For all of these reasons,

Hernandez’s argument is not well-taken.

{¶18} Inasmuch as Hernandez’s assignment of error remotely touches upon

ineffective assistance of counsel related to his admission of his community control

sanction violation in trial court case 05-CR-09377, which he does not appear to

claim on appeal, his argument is similarly not well-taken.

Conclusion

{¶19} For the foregoing reasons Hernandez’s assignment of error is

overruled. The judgments of the Defiance County Common Pleas Court in trial

court case numbers 16-CR-12576 and 05-CR-09377 are affirmed.

Judgments Affirmed

ZIMMERMAN, J., concurs.

WILLAMOWSKI, J., concurs in Judgment Only.

/jlr

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