STATE OF OHIO, PLAINTIFF-APPELLEE vs. RAFAEL MARTINEZ, DEFENDANT-APPELLANT
No. 96222
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 10, 2011
2011-Ohio-5832
Cooney, J., Blackmon, P.J., and Stewart, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-534788
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 10, 2011
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.:
{¶ 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 сourt 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 chargе, 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
{¶ 6} We review felony sentenсes 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 stаtutes 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
{¶ 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
{¶ 10}
“[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 incаpacitating 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}
{¶ 12} The Kalish court also noted that
{¶ 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
{¶ 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.
{¶ 17} We find nothing in the record to suggest that the trial court‘s decision was unreasonable, arbitrary, or unconscionable. Accordingly, thesе 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}
{¶ 20} “* * * At the time of imposing sentence, the court shall do all of the following:
{¶ 21} “Afford counsеl 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.”
{¶ 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.
“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,
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} Priоr 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 сhild 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 thаt the trial court adhered to all the requirements of
{¶ 30} Accordingly, this assignment of error is overruled.
Ineffective 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 сounsel‘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 сounsel, 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 cоmpetent 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
{¶ 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 Clausе 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 requirеd 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,
Judgment affirmed.
It is ordered that appellee recovеr 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 intо 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