State v. Martinez , 2011 Ohio 5832 ( 2011 )

[Cite as State v. Martinez, 2011-Ohio-5832.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96222
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RAFAEL MARTINEZ
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-534788
BEFORE: Cooney, J., Blackmon, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: November 10, 2011
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ATTORNEY FOR APPELLANT
Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Mark J. Mahoney
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
ALSO LISTED
Rafael Martinez, pro se
Inmate No. 590-149
501 Thompson Road
P.O. Box 8000
Conneaut, Ohio 44030
COLLEEN CONWAY COONEY, J.:
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{¶ 1} Defendant-appellant, Rafael Martinez (“Martinez”), appeals his convictions
for aggravated vehicular assault, vandalism, driving under the influence (“OVI”), and
child endangering. Finding no merit to this appeal, we affirm.
{¶ 2} In March 2010, Martinez was indicted on two counts of aggravated
vehicular assault, one count of vandalism, one count of OVI, and three counts of child
endangering. The charges stemmed from an accident that occurred when Martinez
operated his vehicle while under the influence of alcohol, with his girlfriend and three
children in the vehicle. Martinez lost control of the vehicle, crashing into a house and
injuring the homeowner. Martinez pled guilty to one count of aggravated vehicular
assault, one count of vandalism, one count of OVI, and one count of child endangering.
The remaining three charges were nolled by the State. The court ordered a presentence
investigation report for the sentencing hearing.
{¶ 3} The trial court sentenced Martinez to three years in prison for the
aggravated vehicular assault charge, ten months for the vandalism charge, six months on
the OVI charge, and six months on the child endangering charge. All sentences were
ordered to run concurrently.
{¶ 4} Martinez now appeals, raising two assignments of error through counsel,
and three assignments of error pro se.
Felony Sentence
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{¶ 5} In his first assignment of error, Martinez argues that his sentence is contrary
to law and an abuse of discretion. He raises this same argument in his pro se brief in the
third assignment of error. These two assignments of error will be addressed together.
{¶ 6} We review felony sentences using the Kalish framework. State v. Kalish,
120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. The Kalish court, in a split
decision, declared that in applying State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, to the existing statutes, appellate courts “must apply a two-step approach.”
Kalish at ¶4.1
{¶ 7} Appellate courts must first “examine the sentencing court’s compliance
with all applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law.” Id. at ¶4. If this first prong is
satisfied, then we review the trial court’s decision under an abuse-of-discretion standard.
Id. at ¶4, 19.
{¶ 8} In the first step of our analysis, we review whether the sentence is contrary
to law as required by R.C. 2953.08(G).
{¶ 9} As the Kalish court noted, post-Foster, “trial courts have full discretion to
impose a prison sentence within the statutory range and are no longer required to make
We recognize Kalish is merely persuasive and not necessarily controlling because it has no
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majority. The Supreme Court split over whether we review sentences under an abuse-of-discretion
standard in some instances.
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findings and give reasons for imposing maximum, consecutive or more than the minimum
sentence.” Id. at ¶11; Foster, paragraph seven of the syllabus; State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus. See, also, State
v. Redding, Cuyahoga App. No. 90864, 2008-Ohio-5739; State v. Ali, Cuyahoga App.
No. 90301, 2008-Ohio-4449; State v. McCarroll, Cuyahoga App. No. 89280,
2007-Ohio-6322; State v. Sharp, Cuyahoga App. No. 89295, 2007-Ohio-6324. The
Kalish court declared that although Foster eliminated mandatory judicial fact-finding, it
left R.C. 2929.11 and 2929.12 intact. Kalish at ¶13. As a result, the trial court must
still consider these statutes when imposing a sentence. Id., citing Mathis at ¶38.
{¶ 10} R.C. 2929.11(A) provides that:
“[A] court that sentences an offender for a felony shall be guided by the overriding
purposes of felony sentencing[,] * * * to protect the public from future crime by
the offender and others and to punish the offender. To achieve those purposes, the
sentencing court shall consider the need for incapacitating the offender, deterring
the offender and others from future crime, rehabilitating the offender, and making
restitution to the victim of the offense, the public, or both.”
{¶ 11} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must
consider when determining the seriousness of the offense and the likelihood that the
offender will commit future offenses.
{¶ 12} The Kalish court also noted that R.C. 2929.11 and 2929.12 are not
fact-finding statutes like R.C. 2929.14.2 Kalish at ¶17. Rather, they “serve as an
In State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the Ohio Supreme
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Court addressed Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, holding that Ice
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overarching guide for trial judges to consider in fashioning an appropriate sentence.” Id.Thus, “[i]n considering these statutes in light of Foster, the trial court has full discretion
to determine whether the sentence satisfies the overriding purposes of Ohio’s sentencing
structure.” Id.{¶ 13} In the instant case, we do not find Martinez’s sentence contrary to law. His
three-year sentence is within the permissible statutory range for aggravated vehicular
assault, a third-degree felony, which carries a maximum penalty of six years in prison.
{¶ 14} In the sentencing journal entry, the trial court acknowledged that it had
considered all factors of law and found that prison was consistent with the purposes of
R.C. 2929.11. On these facts, we cannot conclude that the sentence is contrary to law.
{¶ 15} Having satisfied the first step, we next consider whether the trial court
abused its discretion. Kalish at ¶4, 19. “An abuse of discretion is ‘“more than an error
of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.”’” Id. at ¶19, quoting Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 404
N.E.2d 144.
“does not revive Ohio’s former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and
2929.41(A), which were held unconstitutional in Foster. Trial court judges are not obligated to
engage in judicial fact-finding prior to imposing consecutive sentences unless the General Assembly
enacts new legislation requiring that findings be made.” Hodge at paragraphs two and three of the
syllabus.
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{¶ 16} Martinez argues that his sentence constitutes an abuse of discretion.
However, after a thorough review of the record, we find that the trial court did not abuse
its discretion in imposing a three-year prison sentence. The court allowed defense
counsel the opportunity to advocate for mitigation of any penalty. The court also
allowed Martinez to address the court. The judge spoke of Martinez’s prior convictions
and probation violations, including a prior OVI.
{¶ 17} We find nothing in the record to suggest that the trial court’s decision was
unreasonable, arbitrary, or unconscionable. Accordingly, these assignments of error are
overruled.
Allocution
{¶ 18} In his second assignment of error, Martinez argues that the court violated
his right to due process by denying him his right to allocution.
{¶ 19} Crim.R. 32 describes the trial court’s duty when imposing a sentence.
Crim.R. 32(A)(1) provides in pertinent part:
{¶ 20} “* * * At the time of imposing sentence, the court shall do all of the
following:
{¶ 21} “Afford counsel an opportunity to speak on behalf of the defendant and
address the defendant personally and ask if he or she wishes to make a statement in his or
her own behalf or present any information in mitigation of punishment.”
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{¶ 22} A thorough review of the record illustrates that during the sentencing
hearing, the trial court addressed both defense counsel and Martinez directly, and
afforded both a full opportunity to address the court. Defense counsel spoke extensively
in favor of mitigation. (Tr. 25-32.) The court then engaged Martinez in a dialogue
regarding the incident and his failure to maintain sobriety. Both defense counsel and
Martinez were afforded the opportunity to argue for mitigation, although the court never
specifically asked about mitigation. Martinez was therefore not denied his right of
allocution.
{¶ 23} Accordingly, this assignment of error is overruled.
Voluntariness of Plea
{¶ 24} In his first pro se assignment of error, Martinez argues that the trial court
erred in accepting his plea. He argues that the court violated rules governing
amendments to indictments and that the indictment failed to advise him of the a material
element of the crime with which he was charged.
{¶ 25} Martinez’s alleged error arises out of the State’s request to amend the
original indictment. Prior to accepting Martinez’s plea, the State asked to amend Count
5, child endangering, in the original indictment to include the name of a second victim,
the victim listed in Count 6. Crim.R. 7(D) addresses amendments to criminal
indictments, stating:
“the court may at any time before, during, or after a trial amend the indictment,
information, complaint, or bill of particulars, in respect to any defect, imperfection,
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or omission in form or substance, or of any variance with the evidence, provided
no change is made in the name or identity of the crime charged.”
{¶ 26} Prior to accepting the amendment, the trial court asked defense counsel if
he would “waive any defect in the indictment?” Counsel replied “[y]es, your Honor.”
{¶ 27} Martinez argues that his plea was not knowingly and voluntarily made
because he did not knowingly waive his right to a defective indictment. Martinez has
failed to show how the addition of a second victim’s name to Count 5 actually constituted
a defect or how it prejudiced him in any way. Having originally been charged with three
counts of child endangering (Counts 5, 6, 7), with three separately identified victims,
Martinez was fully advised of all material details regarding his charges. Simply adding
the name of one victim to one of the other counts, in light of the remaining two child
endangering charges being nolled, does not warrant vacating his plea.
{¶ 28} Moreover, after a recitation of the plea agreement, the trial court directly
addressed Martinez prior to accepting his plea and asked if he understood everything that
had been said. Martinez responded affirmatively, without questioning the waiver or the
amendment despite having the opportunity to raise the issue if he had been confused.
{¶ 29} The record shows that Martinez’s plea was properly taken and that the trial
court adhered to all the requirements of Crim.R. 11(C). Counsel’s waiver of any
defect in the original indictment did not invalidate Martinez’s plea.
{¶ 30} Accordingly, this assignment of error is overruled.
Ineffective Assistance of Counsel
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{¶ 31} In his second pro se assignment of error, Martinez argues that he was
denied effective assistance of counsel.
{¶ 32} To reverse a conviction for ineffective assistance of counsel, the defendant
must prove “(1) that counsel’s performance fell below an objective standard of
reasonableness, and (2) that counsel’s deficient performance prejudiced the defendant
resulting in an unreliable or fundamentally unfair outcome of the proceeding.” State v.
Madrigal, 87 Ohio St.3d 378, 388-389, 2000-Ohio-448, 721 N.E.2d 52, citing Strickland
v. Washington (1984), 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶ 33} As to the second element of the test, the defendant must establish “that there
exists a reasonable probability that, were it not for counsel’s errors, the result of the trial
would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d
373, paragraph three of the syllabus; Strickland at 686. In evaluating whether a
petitioner has been denied effective assistance of counsel, the Ohio Supreme Court held
that the test is “whether the accused, under all the circumstances, had a fair trial and
substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d 71, 341 N.E.2d 304,
paragraph four of the syllabus.
{¶ 34} This court must presume that a licensed attorney is competent and that the
challenged action is the product of sound trial strategy and falls within the wide range of
professional assistance. Strickland at 689. Courts must generally refrain from
second-guessing trial counsel’s strategy, even where that strategy is questionable, and
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appellate counsel claims that a different strategy would have been more effective. State
v. Jalowiec, 91 Ohio St.3d 220, 237, 2001-Ohio-26, 744 N.E.2d 163.
{¶ 35} Martinez alleges that he was denied effective assistance of counsel when his
attorney waived any defect in the indictment. Having found that no error occurred in
waiving any “defect” in the original indictment, we therefore find no merit to this
argument.
{¶ 36} Martinez also argues that the original indictment constituted double
jeopardy. The Fifth Amendment’s Double Jeopardy Clause precludes successive
prosecutions and successive punishments for the same criminal offense. United States v.
Dixon (1993), 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556, citing N. Carolina v.
Pearce (1969) 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. Regardless of the lack of
successive prosecutions in the instant case, “[i]f proof of an additional element is required
to sustain a conviction for one of the offenses, then the accused may be prosecuted for
both offenses without violating the protection [recognized] by the Double Jeopardy
Clause.” State v. Beard (June 5, 1991), 12th Dist. No. CA98-02-019, at ¶13, citing State
v. Tolbert (1991), 60 Ohio St.3d 89, 91, 573 N.E.2d 617.
{¶ 37} Martinez’s indictment charged him with two counts of aggravated vehicular
assault under two different statutes, R.C. 2903.08(A)(1)(a) and 2903.08(A)(2)(b). Thus,
two separate charges with different elements in regard to the same act do not constitute
double jeopardy.
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{¶ 38} Accordingly, this assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of 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.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
PATRICIA ANN BLACKMON, P.J., CONCURS;
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY