State v. Cervantes

2022 Ohio 2536

• Court: Ohio Court of Appeals
• Decided: July 25, 2022
• Docket: 7-21-06
• Status: Published

Opinion

[Cite as State v. Cervantes, 2022-Ohio-2536.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 7-21-06

v.

RAYMOND CERVANTES, OPINION DEFENDANT-APPELLANT.

Appeal from Henry County Common Pleas Court Trial Court No. 20 CR 0094

Judgment Affirmed and Cause Remanded

Date of Decision: July 25, 2022

APPEARANCES:

Nathan VanDenBerghe for Appellant

Gwen Howe-Gebers for Appellee Case No. 7-21-06

MILLER, J.

{¶1} Defendant-appellant, Raymond Cervantes, appeals the August 30, 2021

judgment of sentence of the Henry County Court of Common Pleas. For the reasons

that follow, we affirm the judgment of the court, but remand the matter for the

limited purpose of allowing the trial court to correct a clerical error by issuing a

nunc pro tunc entry.

{¶2} On August 16, 2020, D.L., Cervantes’s estranged wife, drove to

Cervantes’s Wood County residence at Cervantes’s invitation to collect money for

damage he previously inflicted on D.L.’s property and residence. When D.L.

arrived at the residence, Cervantes gave her a sum of money and then requested that

she follow him to the garage where the remainder of the money was supposedly

located. According to the victim, upon entering the garage, Cervantes attacked her

by punching her, hitting her in the head with a c-clamp, and strangling her. At some

point during the struggle, D.L., who was using a knife to protect herself, stabbed

Cervantes in the leg, broke free from his grip, fled the garage, and entered her

vehicle. However, Cervantes forced himself into the driver side of the vehicle and

left the residence with D.L. in the passenger seat.

{¶3} D.L. testified that, as Cervantes was driving out of the driveway, his

sister came out of the residence. D.L. made eye contact with Cervantes’s sister in

an effort to show her the injuries. Shortly thereafter, Cervantes’s sister contacted

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law enforcement to report the incident. However, law enforcement was unable to

immediately locate Cervantes and D.L.

{¶4} Cervantes drove D.L. to multiple locations along the Maumee River

before arriving at a remote location in Henry County where he strangled her and

repeatedly hit her on the head with a piece of driftwood. Eventually, D.L. convinced

Cervantes to take her to the hospital for medical treatment by telling Cervantes that

she would not disclose to the hospital staff who caused her injuries. Shortly after

D.L. arrived at the hospital, law enforcement located and arrested Cervantes.

{¶5} On August 26, 2020, Cervantes was indicted on two counts: Count One

of felonious assault in violation of R.C. 2903.11(A)(2), a second-degree felony, and

Count Two of attempted murder in violation of R.C. 2923.02(A) and R.C.

2903.02(A).1 On September 1, 2020, Cervantes appeared for arraignment and

pleaded not guilty to the counts in the indictment. The trial court also appointed

trial counsel for Cervantes.

{¶6} The case proceeded to a jury trial on June 15-16, 2021, at the conclusion

of which the jury found Cervantes guilty of both counts. The trial court ordered the

1 The course of events on August 16-17, 2020 occurred in two counties, Wood County and Henry County. The first physical altercation between Cervantes and D.L. occurred in the garage of Cervantes’s sister’s residence in Wood County. The second physical altercation occurred in a remote area in Henry County. Criminal charges relating to the events occurring in Wood County were filed in a separate action in that jurisdiction. Accordingly, the instant case pertains exclusively to Cervantes’s actions in Henry County.

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preparation of a presentencing investigation and continued the matter for

sentencing.

{¶7} On August 16, 2021, the matter proceeded to sentencing. The trial court

found the counts merged for purposes of sentencing. Accordingly, the State elected

to sentence Cervantes on Count Two. The trial court sentenced Cervantes to an

indefinite prison term of 10 years minimum to 15 years maximum. On August 30,

2021, the trial court filed its judgment entry of sentence.

{¶8} Cervantes timely filed a notice of appeal on September 29, 2021. He

raises six assignments of error for our review. For ease of discussion, we will

address some of his assignments of error out of order.

Assignment of Error No. I

The Trial Court committed plain error when it allowed testimonial out of court statements that were not subject to cross examination to be played for the jury.

{¶9} In his first assignment of error, Cervantes argues that the trial court

committed plain error by allowing the State to play the recording of the 911 call,

made by Cervantes’s sister, to the jury. Specifically, Cervantes argues that the

recording contained testimonial statements that were not subject to cross-

examination and, therefore, ran afoul of the Confrontation Clause. We disagree.

{¶10} “Ordinarily, we review a trial court’s hearsay rulings for an abuse of

discretion.” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 97, citing

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State v. Hymore, 9 Ohio St.2d 122, 128 (1967). See HSBC Bank USA, Natl. Assn.

v. Gill, 1st Dist. Hamilton, No. C-180404, 2019-Ohio-2814, ¶ 6-10 (documenting a

split between courts of appeals concerning the proper standard of review to apply

when reviewing the admission of hearsay but concluding that McKelton and other

Supreme Court decisions dictate abuse-of-discretion review). But, we review

evidentiary rulings implicating the Confrontation Clause de novo. Id.; State v.

Little, 3d Dist. Allen No. 1-16-29, 2016-Ohio-8398, ¶ 16. However, as Cervantes

recognizes, because he failed to object to the admission of the alleged hearsay

embedded in the emergency-dispatch call, we review for plain error. State v.

Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, ¶ 72, citing State v. Fitzpatrick,

102 Ohio St.3d 321, 2014-Ohio-3176, ¶ 66; State v. Arnold, 147 Ohio St.3d 138,

2016-Ohio-1595, ¶ 65.

{¶11} We recognize plain error “‘with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.’” State v.

Landrum, 53 Ohio St.3d 107, 111 (1990), quoting State v. Long, 53 Ohio St.2d 91

(1978), paragraph three of the syllabus. For plain error to apply, the trial court must

have deviated from a legal rule, the error must have been an obvious defect in the

proceeding, and the error must have affected a substantial right. State v. Barnes, 94

Ohio St.3d 21, 27 (2002). Under the plain error standard, the appellant must

demonstrate that there is a reasonable probability that, but for the trial court’s error,

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the outcome of the proceeding would have been otherwise. State v. West, ___ Ohio

St.3d ___, 2022-Ohio-1556, ¶ 35-36. See also State v. McAlpin, ___ Ohio St.3d

___, 2022-Ohio-1567, ¶ 90 (“McAlpin could not establish plain error, because he

cannot show a reasonable probability that but for standby counsel’s actions, the jury

would have acquitted him.”).

{¶12} Hearsay is defined as a “statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” Evid.R. 801(C). Generally, hearsay is not admissible

unless an exception to the rule against hearsay applies. Evid.R. 802.

{¶13} The recording of the 911 call made by Cervantes’s sister to the

Perrysburg Township Police Department on August 16, 2020 was authenticated by

the emergency dispatcher who answered the call. (June 15-16, 2021 Tr. at 118-

120). However, Cervantes’s sister did not testify at trial.

{¶14} In the recording, an individual identifying herself as Rose Cervantes

requests law enforcement respond to her home regarding her brother, Cervantes.

(State’s Ex. 14). Rose states that Cervantes had been drinking all day, was “really,

really drunk,” and was “talking suicide.” (Id.). Rose tells the dispatcher that she

went to the garage, where Cervantes and D.L. had been, and Rose observed blood

“all over the floor” of the garage and a broken phone that she believed belonged to

D.L. (Id.). Rose informed the dispatcher that Cervantes left her home driving D.L.’s

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vehicle with D.L. in the vehicle with him. (Id.). Rose described the vehicle

Cervantes was driving and the direction they were traveling when they left her

house. (Id.). Rose stated that another sister called Cervantes on his cell phone and

that Cervantes told that sister he “was never coming home” and was “having a heart-

to-heart [conversation] with his wife.” (Id.).

{¶15} Additionally, Rose tells the dispatcher that she does not know if the

blood that she observed is D.L.’s blood or Cervantes’s blood but that Cervantes “can

be very violent.” (Id.). Rose states that there is “blood on the mattress [in the

garage]” and then instructs someone in the background, “Don’t step in [the blood.]

Don’t touch nothing [sic]. I shouldn’t have even touched [D.L.’s] phone.” (Id.).

Rose also tells the dispatcher that Cervantes had been in prison for taking his ex-

wife to a cemetery and instructing her to “pick her grave” and that Cervantes was

on “parole” and had cut his ankle monitor off the previous night. (Id.).

{¶16} At trial, the recording of the call was played for the jury in its entirety

during the dispatcher’s testimony. (June 15-16, 2021 Tr. at 119-120). At that time,

Cervantes did not object. (Id.). However, when the State moved for the admission

of its exhibits, Cervantes objected to the admission of State’s Exhibit 14. (Id. at

298). Cervantes’s trial counsel clarified that he did not object to the authenticity of

the recording or that the recording may contain present-sense impressions or excited

utterances. (Id. at 299). Rather, Cervantes’s objection was based on statements

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contained in the recording that were “irrelevant.” (Id.). Specifically, Cervantes

objected to the reference of his being on “parole” and being a violent individual.

(Id.).

{¶17} While discussing Cervantes’s objection, the trial court stated that

although the jury already heard the recording in its entirety, in so doing, the jury

heard things it “probably shouldn’t have heard.” (Id. at 300). The parties agreed to

redact certain portions of the recording in the event the jury requested to review it

during deliberations. (Id. at 300-302). With the parties’ agreement regarding the

redactions, the trial court admitted State’s Exhibit 14. (Id. at 301-302). Cervantes’s

trial counsel later stated that because the trial court agreed to redact certain portions

of State’s Exhibit 14, he was withdrawing his previous objection. (Id. at 396).

{¶18} Cervantes’s appellate brief details an argument that the hearsay

statements embedded in the 911 recording were testimonial in nature and,

accordingly, should have been excluded from evidence on that basis. However, he

fails to argue that a reasonable probability exists that the outcome of his trial would

clearly have been different if not for the trial court’s alleged error, a requirement for

him to prevail under the plain error standard of review. West, ___ Ohio St.3d ___,

2022-Ohio-1556, ¶ 35-36. Rather, Cervantes baldly asserts that because he was

unable to confront Rose regarding her “testimonial” statements on the 911

recording, the trial court committed error which was “obvious and prejudiced the

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outcome of the trial by submitting the jury to [sic] testimonial statements that were

not tested by cross-examination.” (Appellant’s Brief at 9). However, such bald

statements of prejudice are not sufficient to establish plain error. “‘[A] defendant

has the burden of affirmatively demonstrating the error of the trial court on appeal.’”

State v. Costell, 3d Dist. Union No. 14-15-11, 2016-Ohio-3386, ¶ 86, quoting State

v. Stelzer, 9th Dist. Summit No. 23174, 2006-Ohio-6912, ¶ 7. If an argument exists

that can support an assignment of error, it is not this court’s duty to root it out. State

v. Shanklin, 3d Dist. Union No. 14-13-23, 2014-Ohio-5624, ¶ 31.

{¶19} Furthermore, Cervantes’s unsupported claims that the admission of the

statements in question constituted prejudice are undermined by Cervantes’s own

testimony wherein he admits that, at the time of the incident, he was on an ankle

monitor for an unnamed offense, “possibly” had a warrant out for his arrest, and had

previously been convicted of attempted kidnapping. (June 15-16, 2021 Tr. at 328,

351-352, 355-356, 372). Cervantes also admitted that he caused damage to D.L.’s

home during a recent prior “violent domestic incident.” (Id. at 357).

{¶20} Moreover, the record supports that the State provided sufficient

evidence suggesting Cervantes’s guilt irrespective of State’s Exhibit 14. D.L.

testified that that Cervantes drove her to a remote location in Henry County where

he beat her repeatedly hit her on the head with a piece of driftwood and strangled

her. Additional evidence, such as a piece of driftwood containing clumps of hair

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and photographs of D.L.’s injuries were admitted without objection. Furthermore,

a sexual assault nurse examiner and a law enforcement officer testified that, in their

experience, D.L.’s injuries were consistent with her version of the events.

Accordingly, we do not find that Cervantes demonstrated that he was prejudiced by

the trial court’s alleged error, as required to meet the plain error standard of review.

{¶21} Cervantes’s first assignment of error is overruled.

Assignment of Error No. II

The Trial Court committed reversible error by allowing the State to amend the indictment after the close of evidence.

{¶22} In his second assignment of error, Cervantes argues that the trial court

erred by permitting the State to amend the indictment after the close of evidence.

Cervantes alleges that the amendment was not permissible under Crim.R. 7 because

it changed the identity of the offense.

{¶23} Crim.R. 7(D) governs the amendment of indictments and provides as

follows:

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. If any amendment is made to the substance of the indictment, information, or complaint, or to cure a variance between the indictment, information, or complaint and the proof, the defendant is entitled to a discharge of the jury on the defendant’s motion, if a jury has been impaneled, and to a reasonable continuance, unless it clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or

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variance in respect to which the amendment is made, or that the defendant’s rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury. * * *

{¶24} “Crim.R. 7(D) permits most amendments but prohibits amendments

that change the name or identity of the crime charged.” State v. Wilson, 4th Dist.

Lawrence No. 18CA15, 2019-Ohio-2754, ¶ 13. “A trial court commits reversible

error when it permits an amendment that changes the name or identity of the offense

charged, regardless of whether the defendant suffered prejudice,” and because it is

a matter of law, we review de novo whether an amendment changes the name or

identity of the offense charged. Id., citing State v. Kittle, 4th Dist. Athens No.

04CA41, 2005-Ohio-3198, ¶ 10-13, citing State v. Smith, 10th Dist. Franklin No.

03AP1157, 2004-Ohio-4786, ¶ 10; State v. Jones, 2d Dist. Montgomery No. 26289,

2015-Ohio-4116, ¶ 125, citing State v. Frazier, 2d Dist. Clark No. 2008 CA 118,

2010-Ohio-1507, ¶ 22.

{¶25} However, where an amendment does not change the name or identity

of the offense charged, we review a trial court’s decision to allow a Crim.R. 7(D)

amendment for an abuse of discretion. State v. Thompson, 9th Dist. Wayne No.

15AP0016, 2016-Ohio-4689, ¶ 11, citing State v. Gray, 9th Dist. Summit No.

27365, 2015-Ohio-1248, ¶ 7 and Frazier at ¶ 23. Nevertheless, in this case, because

Cervantes failed to object to the amendment of the indictment at trial, he is limited

to a claim of plain error on appeal. See State v. Shockey, 9th Dist. Summit No.

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29170, 2019-Ohio-2417, ¶ 7, citing State v. Guenther, 9th Dist. Lorain No.

05CA008663, 2006-Ohio-767, ¶ 49.

{¶26} With respect to the charge of felonious assault, the indictment stated

as follows:

Count 1: On or about the 16th continuing through the 17th day of August, 2020, at Henry County the defendant, Raymond Cervantes, did knowingly cause or attempt to cause serious physical harm to Jane Doe * * * or to another’s unborn by means of a deadly weapon or dangerous ordinance, in violation of the Ohio Revised Code Title 29, Section 2903.11(A)(2) and against the peace and dignity of the State of Ohio.

(Doc. No. 1).

{¶27} At the trial, following the close of evidence but before the jury

instructions, the State requested that the trial court amend the indictment to delete

the reference to “serious” before the phrase “physical harm” with respect to

felonious assault count. (June 15-16, 2021 Tr. at 395). Cervantes’s trial counsel

stated that he had no objection to the amendment. (Id.).

{¶28} Cervantes argues this amendment changed the identity of the offense

charged. Specifically, he argues that the removal of the word “serious” before the

phrase “physical harm” changed the identity of the offense from alleging no offense

for which there is no penalty to that of an actual offense, felonious assault.

{¶29} Indeed, R.C. 2903.11, which governs felonious assault, states, in

relevant part, that:

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(A) No person shall knowingly do either of the following: (1) Cause serious physical harm to another or to another’s unborn; [or] (2) Cause or attempt to cause physical harm to another or to another’s unborn by means of a deadly weapon or dangerous ordinance.

R.C. 2903.11(A)(1)-(2). Accordingly, the removal of the word, “serious” before the

phrase “physical harm” resulted in the language of the indictment mirroring the

language of R.C. 2903.11(A)(2). However, contrary to Cervantes’s argument, we

do not find that the trial court’s amendment changed the name or identity of the

felonious assault offense.

{¶30} In State v. Frazier, the Second District Court of Appeals, while

reviewing identical amendments to two counts of felonious assault, found that the

removal of the word “serious” from the indictments did not alter the name or identity

of the felonious assault offense because “the original indictment and its amended

version included all the elements required by R.C. 2903.11(A)(2).” State v. Frazier,

2010-Ohio-1507, ¶ 25. The Second District Court of Appeals reasoned that the

inclusion of the word “serious” in the indictment was “surplusage because it is not

relevant to a charge of felonious assault under R.C. 2903.11(A)(2) and can be

removed from the indictment while leaving all the essential elements of the crime.”

Id. at ¶ 26. We agree.

{¶31} Moreover, R.C. 2941.25 provides that “[w]here the same conduct by

defendant can be construed to constitute two or more allied offenses of similar

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import, the indictment or information may contain counts for all such offenses, but

the defendant may be convicted of only one.” “Indeed, the Supreme Court of Ohio

has explicitly stated that a ‘conviction’ requires both a finding of guilt and a

sentence.” State v. Miller, 3d Dist. Logan No. 8-19-02, 2019-Ohio-4121, ¶ 12.

Here, at the sentencing hearing, the trial court determined that Counts One and Two

were allied offense of similar import and sentenced Cervantes on Count Two,

attempted murder. Thus, even if the trial court did err by granting the State’s request

to amend Count One of the indictment, any such error is harmless because Cervantes

was not convicted of that offense.

{¶32} Accordingly, we find that the trial court did not commit plain error by

granting the State’s motion to amend the indictment.

{¶33} Cervantes’s second assignment of error is overruled.

Assignment of Error No. III

The Trial Court erred when it refused to include a jury instruction on abandonment as proposed by Appellant’s Counsel.

{¶34} In his third assignment of error, Cervantes argues that the trial court

abused its discretion by declining to issue his requested jury instruction regarding

the affirmative defense of abandonment. Cervantes alleges the trial court erred by

refusing to instruct the jury on abandonment and alleges that a jury could have found

that he abandoned his attempt to murder D.L. after he had an opportunity to calm

down. (Appellant’s Brief at 14).

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{¶35} “Trial courts have a responsibility to give all jury instructions that are

relevant and necessary for the jury to properly weigh the evidence and perform its

duty as the factfinder.” State v. Shine-Johnson, 10th Dist. Franklin No. 17AP-194,

2018-Ohio-3347, ¶ 25. “Requested jury instructions should ordinarily be given if

they are correct statements of law, if they are applicable to the facts in the case, and

if reasonable minds might reach the conclusion sought by the requested instruction.”

State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 240. Yet, a trial court may

refuse to issue a requested jury instruction if “‘the evidence adduced at trial is

legally insufficient’ to support it.’” State v. Juntunen, 10th Dist. Franklin Nos.

09AP-1108 and 09AP-1109, 2010-Ohio-5625, ¶ 13, quoting State v. Barnd, 85 Ohio

App.3d 254, 259 (3d Dist.1993). “[T]he trial judge is in the best position to gauge

the evidence before the jury and is provided the discretion to determine whether the

evidence adduced at trial was sufficient to require an instruction.” State v. Fulmer,

117 Ohio St.3d 319, 2008-Ohio-936, ¶ 72. Accordingly, “[a] court reviewing a trial

court’s refusal to submit to the jury a requested instruction must determine whether

the trial court’s decision constituted ‘an abuse of discretion under the facts and

circumstances of the case.’” Juntunen at ¶ 13, quoting State v. Wolons, 44 Ohio

St.3d 64, 68 (1989). An abuse of discretion is more than a mere error in judgment;

it suggests that a decision is unreasonable, arbitrary, or unconscionable. State v.

Adams, 62 Ohio St.2d 151, 157-158 (1980).

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{¶36} R.C. 2923.02(D) sets forth the affirmative defense of abandonment

and provides: “[i]t is an affirmative defense to a charge under this section that the

actor abandoned the actor’s effort to commit the offense or otherwise prevented its

commission, under circumstances manifesting a complete and voluntary

renunciation of the actor’s criminal purpose.”

{¶37} Cervantes argues that an abandonment jury instruction was warranted

in this case based upon the victim’s testimony. Specifically, Cervantes points to

D.L.’s testimony that, at some point, she was able to convince Cervantes to drive

her to the hospital to receive medical attention. According to Cervantes, due to

D.L.’s testimony, the jury could have found that the violent actions D.L. took “while

enraged were abandoned after he had an opportunity to calm down.” (Appellant’s

Brief at 14). We disagree.

{¶38} Abandonment is an affirmative defense that places burden on the

defendant to establish the facts to support the defense. “‘Under Ohio law, an

affirmative defense is justification for admitted conduct, which does not “seek to

negate any of the elements of the offense which the state is required to prove.”’”

State v. Fickenworth, 10th Dist. Franklin No. 13AP-826, 2014-Ohio-2502, ¶ 15,

quoting Gahanna v. Cameron, 10th Dist. Franklin No. 02AP-255, 2002-Ohio-6959,

¶ 28, quoting State v. Martin, 21 Ohio St.3d 91, 94 (1986). At trial, Cervantes did

not acknowledge he attempted to commit murder and abandoned the attempt.

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Rather, with respect to the conduct that occurred in Henry County, his position at

trial was an attempt to negate the elements of the State’s case. Cervantes alleged

that he drove D.L. to Henry County in an attempt to locate his friends who were

night fishing in the area and to convince one of them to drive him to the hospital to

receive medical attention for his leg. Cervantes denied physically assaulting D.L.

at the location in Henry County and, instead, testified the head injuries she sustained

in Henry County were the result of her accidentally hitting her head on a car door.

Cervantes’s denial of the elements of the offense of attempted murder is inconsistent

with a claim of abandonment. State v. Rudasill, 10th Dist. Franklin No. AP19-61,

2021-Ohio-45, ¶ 83; Fickenworth at ¶ 15. Accordingly, we find the trial court did

not err by denying Cervantes’s request for a jury instruction on abandonment.

{¶39} Cervantes’s third assignment of error is overruled.

Assignment of Error No. IV

The Trial Court erred when it stated in its Sentencing Entry that Appellant’s sentence was mandatory

Assignment of Error No. VI

The Reagan Tokes Act is an Unconstitutional Violation of Due Process

{¶40} In Cervantes’s fourth and sixth assignments of error, he argues that his

sentence was contrary to law. In his fourth assignment of error, Cervantes argues

the trial court erred by stating in its sentencing entry that his sentence was

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mandatory. In his sixth assignment of error, he argues the indefinite-sentencing

provisions of the Reagan Tokes Law, under which he was sentenced, violate his

right to due process. For ease of discussion, we address Cervantes’s sixth

assignment of error first, followed by his fourth assignment of error.

{¶41} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

Reagan Tokes Indefinite Sentencing

{¶42} In his sixth assignment of error, Cervantes argues that the indefinite-

sentencing provisions of the Reagan Tokes Law,2 under which he was sentenced,

infringe on his right to due process. At the outset, we note that Cervantes failed to

object to the constitutionality of the Reagan Tokes Law in the trial court. “The

‘[f]ailure to raise at the trial court level the issue of the constitutionality of a statute

2 Because we have thoroughly explained these provisions in previous opinions, we need not do so here. See, e.g., State v. Barnhart, 3d Dist. Putnam No. 12-20-08, 2021-Ohio-2872, ¶ 9; State v. Hiles, 3d Dist. Union No. 14-20-21, 2021-Ohio-1622, ¶ 11-16.

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or its application, which is apparent at the time of trial, constitutes a waiver of such

issue and a deviation from this state’s orderly procedure, and therefore need not be

heard for the first time on appeal.’” State v. Barnhart, 3d Dist. Putnam No. 12-20-

08, 2021-Ohio-2874, ¶ 7, quoting State v. Awan, 22 Ohio St.3d 120 (1986), syllabus.

“However, we retain the discretion to consider a waived constitutional argument

under a plain-error analysis.” Id. at ¶ 8. “An error qualifies as ‘plain error’ only if

it is obvious and but for the error, the outcome of the proceeding clearly would have

been otherwise.” Id. In this case, we elect to exercise our discretion to review

Cervantes’s constitutional arguments for plain error. See id. at ¶ 8, 15 (reviewing a

“waived” challenge to the constitutionality of the Reagan Tokes Law for plain

error).

{¶43} Cervantes’s challenge does not present a matter of first impression in

this court. Since the indefinite-sentencing provisions of the Reagan Tokes Law

went into effect in March 2019, we have repeatedly been asked to address the

constitutionality of these provisions. We have invariably concluded that the

indefinite-sentencing provisions of the Reagan Tokes Law do not facially violate

the separation of powers doctrine or infringe on defendants’ due process rights.

E.g., State v. Crawford, 3d Dist. Henry No. 7-20-05, 2021-Ohio-547, ¶ 10-11; State

v. Hacker, 3d Dist. Logan No. 8-20-01, 2020-Ohio-5048, ¶ 22; State v. Wolfe, 3d

Dist. Union No. 14-21-16, 2022-Ohio-96, ¶ 21.

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{¶44} In this case, Cervantes asks us to reconsider our earlier decisions. In

recent months, a number of defendants have requested the same of us—requests that

we have uniformly rejected. E.g., State v. Abston, 3d Dist. Henry No. 7-21-04,

2022-Ohio-884, ¶ 33; Wolfe at ¶ 22; Barnhart at ¶ 12-15; State v. Mitchell, 3d Dist.

Allen No. 1-21-02, 2021-Ohio-2802, ¶ 17; State v. Rodriguez, 3d Dist. Seneca No.

13-20-07, 2021-Ohio-2295, ¶ 15. As Cervantes has not presented us with any

compelling reason to depart from our earlier precedent on facial challenges to the

indefinite-sentencing provisions of the Reagan Tokes Law, we once again decline

to do so.

{¶45} Cervantes also challenges the indefinite-sentencing provisions of the

Reagan Tokes Law as applied to him, contending that they violate his constitutional

right to due process. In the past, we have held that certain as-applied challenges to

these provisions were not ripe for review. See, e.g., State v. Kepling, 3d Dist.

Hancock No. 5-20-23, 2020-Ohio-6888, ¶ 11. However, the Supreme Court of Ohio

recently decided State v. Maddox, ___ Ohio St.3d ____, 2022-Ohio-764, and

determined that constitutional challenges to the indefinite sentencing provision of

the Reagan Tokes Law are ripe for review. Based on the holding in Maddox, we

address Cervantes’s argument that the indefinite-sentencing provisions of the

Reagan Tokes Law violate his right to a jury trial.

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{¶46} In reviewing the matter, we emphasize that statutes are presumed

constitutional, and it is Cervantes’s burden to demonstrate that the statute at issue is

unconstitutional. State v. Thompkins, 75 Ohio St.3d 558, 1996-Ohio-264.

Cervantes has presented no compelling authority undermining the constitutionality

of the indefinite-sentencing provisions of the Reagan Tokes Law.

{¶47} Notwithstanding this point, numerous Ohio courts of appeals have

already rejected challenges similar to Cervantes’s. State v. Suder, 12th Dist.

Clermont Nos. CA2020-06-034 and CA2020-06-035, 2021-Ohio-465, ¶ 25; State v.

Thompson, 2d Dist. Clark No. 2020-CA-60, 2021-Ohio-4027, ¶ 23; State v.

Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, ¶ 46 (en banc). We

agree with the reasoning expressed by these courts and determine that Cervantes’s

“as-applied” challenge regarding the jury trial issue is unavailing.

{¶48} In sum, we conclude that the indefiniteness of Cervantes’s sentence

does not render his sentence contrary to law. Therefore, Cervantes’s sixth

assignment of error is overruled.

Discrepancy in Judgment Entry

{¶49} In his fourth assignment of error, Cervantes argues that his sentence is

void because the trial court stated in its judgment entry that his prison sentence was

mandatory.3 We disagree.

3 In its brief the State acquiesces that the offense of attempted murder did not require a mandatory sentence and suggests any error could be corrected by the trial court issuing a nunc pro tunc sentencing order.

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{¶50} At the sentencing hearing on August 16, 2021, the trial court stated as

You have been convicted of Attempted Murder, a felony of the first degree and Felonious Assault, a felony of the second degree. You will be sentenced on the more serious offense because the Court finds that the offenses are allied offenses of similar import and merge. The potential minimum term for violating this section is between three and eleven years and the potential maximum term is between four- and one-half years and sixteen-and one-half years. The Court has considered all of the statutory factors required to be considered and hereby imposes a minimum sentence of ten years and a maximum sentence of fifteen years in the custody of the Ohio Department of Corrections and Rehabilitation. * * *.

(Aug. 16, 2021 Tr. at 8-9). At no time during the sentencing hearing did the trial

court indicate that any portion of Cervantes’s prison term was mandatory.

{¶51} However, in the judgment entry of sentence filed on August 30, 2021 states:

It is, therefore, ORDERED that the defendant serves a stated indefinite term of Ten (10) years minimum to a maximum term of Fifteen (15) years at the Ohio Department of Rehabilitations and Corrections under Count Two for Attempted Murder, a violation of Ohio R.C. 2923.02(A) and 2903.02(A), a felony of the first degree; which is a mandatory term pursuant to R.C. 2929.13(F), 2929.14(D)(3) or 2925 * * *.

(Emphasis added.) (Doc. No. 88).

{¶52} Cervantes suggests that the discrepancy between the sentence

announced at the sentencing hearing and the sentence memorialized in the judgment

entry of sentence with respect to the mandatory or non-mandatory nature of his

sentence renders his sentence void. However, a review of the transcript of the

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sentencing hearing indicates that the trial court never indicated to Cervantes at the

sentencing hearing that the sentence was mandatory. In fact, the trial court

discussed his ability to apply for judicial release, which is only available for non-

mandatory prison terms. (Aug. 16, 2021 Tr. at 8-9). Accordingly, the reference in

the judgment entry to Cervantes’s sentence being “mandatory” was a clerical error.

{¶53} While we agree with Cervantes’s assertion that the trial court’s error

in journalizing Cervantes’s sentence must be corrected, we disagree with his

contention that the trial court’s error rendered his sentence void. Crim.R. 36 states

that “[c]lerical mistakes in judgments, orders, or other parts of the record * * * may

be corrected by the court at any time.” Crim.R. 36. “A nunc pro tunc entry is

permitted to correct the record to accurately reflect what happened in a hearing when

a judgment entry is inaccurate.” State v. Brown, 3d Dist. Hancock No. 5-18-25,

2019-Ohio-1696, ¶ 8. “Trial courts in criminal matters ‘retain continuing

jurisdiction to correct clerical errors in judgments by nunc pro tunc entry to reflect

what the court actually decided.’” State ex rel. Arnold v. Gallaher, 153 Ohio St.3d

234, 2018-Ohio-2628, ¶ 17 quoting State ex rel. Womack v. Marsh, 128 Ohio St.3d

303, 2011-Ohio-229, ¶ 13. A review of the record indicates that the trial court

correctly informed Cervantes in open court of the non-mandatory nature of his

prison term at the hearing on August 16, 2021. The judgment entry incorrectly

stated that his prison term was mandatory. Thus, the entry did not accurately reflect

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the sentence imposed at the hearing. Accordingly, the trial court’s error in

journalizing Cervantes’s sentence can be corrected by nunc pro tunc entry. State v.

Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, ¶ 24 (finding that a nunc pro tunc

entry can correct a clerical error in a sentencing entry “as long as the correction is

accomplished prior to the defendant’s completion of his prison term”).

{¶54} Cervantes’s fourth assignment of error is sustained in so far as the trial

court’s sentencing order erroneously describes the prison term as being mandatory.

Assignment of Error No. V

Appellant did not receive effective assistance of counsel when Counsel failed to object to the playing of a 911 recording, when Counsel failed to object to the State’s motion to amend the indictment, when Counsel failed to propose a self-defense jury instruction and when Counsel failed to object to the constitutional validity of Reagan Tokes.

{¶55} In his fifth assignment of error, Cervantes argues that he received

ineffective assistance of counsel. Cervantes claims his trial counsel performed

deficiently by failing to object to: the playing of a recording of the 911 call, the

State’s motion to amend the indictment, and the constitutional validity of the Reagan

Tokes Law. Cervantes further alleges his trial counsel was ineffective for failing to

propose a self-defense jury instruction.

{¶56} “In criminal proceedings, a defendant has the right to effective

assistance of counsel under both the United States and Ohio Constitutions.” State

v. Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, ¶ 45. A

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defendant asserting a claim of ineffective assistance of counsel must establish: (1)

counsel’s performance was deficient or unreasonable under the circumstances; and

(2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d

303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052

(1984). In order to show counsel’s conduct was deficient or unreasonable, the

defendant must overcome the presumption that counsel provided competent

representation and must show that counsel’s actions were not trial strategies

prompted by reasonable professional judgment. Strickland at 689. Counsel is

entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998).

Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute

ineffective assistance of counsel. State v. Frazier, 61 Ohio St.3d 247, 255 (1991).

Rather, the errors complained of must amount to a substantial violation of counsel’s

essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136, 141-142

(1989).

{¶57} Prejudice results when “‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability

is a probability sufficient to undermine confidence in the outcome.’” Id., quoting

Strickland at 694.

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{¶58} First, we note that through our resolution of Cervantes’s other

assignments of error, we have effectively preempted Cervantes’s argument that his

counsel was ineffective for failing to object to: (1) the playing of the 911 recording,

(2) the State’s motion to amend the indictment, and (3) the constitutional validity of

the Reagan Tokes Law. In our review of Cervantes’s first, second, and sixth

assignments of error, respectively, we concluded that the trial court did not commit

plain error by playing the recording of the 911 call, amending the indictment, and

applying an indefinite sentence pursuant to the Reagan Tokes Law. To show plain

error, “[t]he accused is * * * required to demonstrate a reasonable probability that

the error resulted in prejudice—the same deferential standard for reviewing

ineffective assistance of counsel claims.” (Emphasis sic.) State v. Rogers, 143 Ohio

St.3d 385, 2015-Ohio-2459, ¶ 22. Therefore, as the prejudice standards for plain-

error and ineffective-assistance-of-counsel claims are the same, we have already

determined that Cervantes was not prejudiced by his trial counsel’s performance

with respect to the playing of the 911 call, the amendment of the indictment, and the

application of the Reagan Tokes Law, regardless of whether such performance was

deficient. State v. Nurein, 3d Dist. Union No. 14-21-18, 2022-Ohio-1711, ¶ 60. For

this reason, we need not further consider these components of Cervantes’s

ineffective-assistance-of-counsel claim. Id., citing State v. Jarrell, 4th Dist. Gallia

No. 15CA8, 2017-Ohio-520, ¶ 51.

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{¶59} With respect to Cervantes’s argument that his counsel was ineffective

for failing to propose a self-defense jury instruction, we find that his claim is without

merit. “Generally, the failure to request jury instructions is purely a matter of trial

tactics and will not be disturbed upon review.” State v. Herrington, 9th Dist.

Summit No. 25150, 2010-Ohio-6455, ¶ 11, citing State v. Clayton, 62 Ohio St.2d

45, 47-49 (1980). Until recently, Ohio put the onus on the defendant to prove the

elements of self-defense by a preponderance of the evidence. State v. Messenger,

10th Dist. Franklin No. 19AP-879, 2021-Ohio-2044, ¶ 36. However, following

revisions to R.C. 2901.05, the statute now “‘place[s] the burden on the prosecution

to disprove at least one of the elements of self-defense beyond a reasonable doubt.’”

Id., quoting State v. Carey, 10th Dist. Franklin No. 10AP-402, 2020-Ohio-2691, ¶

31. Now, the State is required “to disprove self-defense by proving beyond a

reasonable doubt that [the defendant] (1) was at fault in creating the situation giving

rise to the affray, OR (2) did not have a bona fide belief he was in imminent danger

of death or great bodily harm for which the use of deadly force was his only means

of escape, OR (3) did violate a duty to retreat or avoid the danger.” Carney at ¶ 31.

{¶60} However, “[u]nder the current version of R.C. 2901.05(B), the state is

not required to prove the defendant did not act in self-defense until the defendant

introduces evidence that tends to support they acted in self-defense.” State v.

Walker, 6th Dist. Lucas No. L-20-1047, 2021-Ohio-3860, ¶ 61. In other words, the

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defendant maintains the burden of production on their self-defense claim before the

state inherits the burden of persuasion.” Id., citing State v. Petway, 11th Dist. Lake

No. 2019-L-124, 2020-Ohio-3848, ¶ 55.

{¶61} As discussed in our review of Cervantes’s argument that the trial court

erred by denying his request for a jury instruction on abandonment, Cervantes

testified that he did not have any kind of physical altercation with D.L. at the

location in Henry County and claimed the head injuries she sustained in Henry

County were the result of accidental injury. Although Cervantes did argue that

during the physical altercation at his sister’s residence in Wood County, D.L.

attacked him with a knife, the charges in the instant case relate to the physical

altercation that occurred in Henry County. Thus, Cervantes did not introduce

evidence that he acted in self-defense with respect to the events occurring in Wood

County. Therefore, the State did not inherit the burden of persuasion relating to a

self-defense claim. Trial counsel was not ineffective for failing to perform a futile

act. State v. Witherspoon, 8th Dist. Cuyahoga No. 94475, 2011-Ohio-704, ¶ 33. If

Cervantes’s trial counsel had requested a jury instruction on self-defense, his request

would had been denied. “Where, as here, the record contains no evidence that would

support a self-defense instruction, the defendant cannot meet his burden of

establishing that he was denied effective assistance of counsel based on counsel’s

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failure to request a self-defense instruction. State v. May, 8th Dist. Cuyahoga No.

102482, 2015-Ohio-4275, ¶ 35.

{¶62} Moreover, with respect to his argument that his trial counsel was

ineffective for failing to request a jury instruction relating to self-defense, Cervantes

argues that the jury “could have concluded, given the opportunity, that [he] acted in

self-defense, even though he was also enraged” and that he was prejudiced because

the jury was denied “an opportunity to seek a valid alternative.” (Appellant’s Brief

at 19). To sustain a claim of ineffective assistance of counsel, the defendant is

required to affirmatively establish prejudice. State v. Hill, 4th Dist. Athens No.

16CA3, 2018-Ohio-67, ¶ 43. Bare claims of prejudice of “[c]onclusory statements

that the outcome would have been different, without more, are not enough to carry

a defendant’s burden on the issue of prejudice.” State v. Williams, 1st Dist.

Hamilton No. C-180588, 2020-Ohio-1368, ¶ 22. As Cervantes has done little more

than baldly assert prejudice, he has failed to carry his burden on this issue.

Accordingly, we conclude that Cervantes has not demonstrated that he received

ineffective assistance of counsel.

{¶63} Cervantes’s fifth assignment of error is overruled.

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{¶64} In conclusion, we affirm the judgment of the trial court, but remand

the matter for the limited purpose of allowing the trial court to correct its clerical

error by issuing an appropriate nunc pro tunc entry.

ZIMMERMAN, P.J. and WILLAMOWSKI, J., concur.

/jlr

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