State v. LozadaState v. Lozada
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 22, 2020
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
{¶ 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
{¶ 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
{¶ 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
{¶ 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
{¶ 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
{¶ 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
{¶ 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
{¶ 11} Under
{¶ 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.1 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
{¶ 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.
SEAN C. GALLAGHER, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
EILEEN A. GALLAGHER, J., CONCURS IN JUDGMENT ONLY