State v. Martinez

2021 Ohio 3994

• Court: Ohio Court of Appeals
• Decided: November 10, 2021
• Docket: L-21-1020
• Status: Published

Opinion

[Cite as State v. Martinez, 2021-Ohio-3994.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-21-1020

Appellee Trial Court No. CR0202001260

v.

Porfirio Martinez DECISION AND JUDGMENT

Appellant

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant.

OSOWIK, J.

{¶ 1} This is an appeal from a December 30, 2020 judgment of the Lucas County

Court of Common Pleas, sentencing appellant to a, “[M]andatory term of 10 to 15 years on Count 1, and [a] mandatory term of 5 years in Count 2, consecutive to one another,”

following appellant’s convictions on two counts of rape, in violation of R.C. 2907.02,

both felonies of the first degree. For the reasons set forth below, this court dismisses this

appeal, in part, affirms, in part, reverses, in part, and remands the case for resentencing.

{¶ 2} Of primary significance to this case, the transcript of appellant’s sentencing

hearing reflects that after announcing appellant’s sentences imposed on the two first

degree felony convictions, the trial court did not take the additional, mandatory step of

calculating and determining appellant’s aggregate minimum and maximum terms of

incarceration, as required by R.C. 2929.144 (B)(2).

{¶ 3} The December 30, 2020, sentencing entry stated, “Pursuant to Senate Bill

201, defendant is ordered to serve an indefinite term of a minimum of 10 years to a

maximum of 15 years in prison as to Count 1; 5 years as to Count 2.”

{¶ 4} The record reflects that the sentence imposed by the trial court did not

include the requisite R.C. 2929.144 (B)(2) calculations and establish the aggregate

minimum and maximum sentencing range, ultimately constituting appellant’s sentence,

either during the sentencing hearing, or include it in the written sentencing entry.

{¶ 5} Separately, and for the reasons elaborated below, this court dismisses the

separation of powers argument set forth in this appeal on the basis of ripeness. Appellant

has not yet served the minimum term. Therefore, it is not presently known whether or

2. not appellant will be denied release after serving the presumptive minimum term. State v.

Maddox, 6th Dist. Lucas No. L-19-1253, 2020-Ohio-4702, ¶ 11.

{¶ 6} In conjunction, we note that the Maddox ripeness position followed by this

court has been certified and is currently pending an Ohio Supreme Court determination

on the issue. State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150.

{¶ 7} The balance of the appeal, an ineffective assistance of counsel claim, is not

premised upon, and therefore is not contingent upon, the dismissed separation of powers

claim. Accordingly, it will be determined upon the merits.

{¶ 8} Lastly, in response to the above-discussed absence of an R.C.

2929.144(B)(2) aggregate sentencing range in appellant’s sentence, appellee asserts in

“State’s Assignment of Error I” that the trial court did not correctly calculate appellant’s

sentence and requests that the sentence should be corrected. We shall construe this to be

a cross-assignment of error.

{¶ 9} We note that appellee’s cross-assignment and argument in support does not

take a position regarding whether the correction be undertaken upon remand to the trial

court, or be done directly by this court pursuant to R.C. 2953.08(G)(2).

{¶ 10} Appellant, Porfirio Martinez, sets forth the following two assignments of

error:

I. INDEFINITE SENTENCING UNDER THE REAGAN TOKES

ACT IS UNCONSTITUTIONAL.

3. II. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL.

{¶ 11} The following undisputed facts are relevant to this appeal. During a time

period spanning from June 1 through June 27, 2019, a seven-year-old girl had multiple

overnight visits at a residence in East Toledo where her adult sister and appellant, the

sister’s boyfriend, resided.

{¶ 12} The victim subsequently disclosed to her mother that during the June, 2019

sleepovers, appellant would wake up the victim in the middle of the night, take her into

the bathroom, force her onto his lap, and then appellant would proceed to, “put his pee

pee in [the victim’s] butt, it hurt, and his pee pee did its slober thing [ejaculated].”

{¶ 13} On June 29, 2019, in response to the unsettling disclosures by the child, the

victim was taken to a Toledo-area hospital by her mother for the performance of a rape

kit and an examination by a sexual assault nurse examiner. In addition, the victim’s

underwear was taken into evidence for DNA testing to be conducted.

{¶ 14} In the course of the criminal investigation triggered by the disclosures, the

evidence collected reflected that on multiple occasions during the victim’s sleepovers at

her sister’s home, appellant forcibly engaged in anal intercourse with the child. Of

dispositive significance, appellant’s DNA matched the semen recovered from the rear-

end portion of the victim’s underwear.

4. {¶ 15} On February 12, 2020, appellant was indicted on two counts of rape, in

violation of R.C. 2907.02(A), both felonies of the first degree.

{¶ 16} On November 30, 2020, following several pretrial conferences, the

exchange of discovery, and ongoing negotiations between the parties, appellant

voluntarily entered guilty pleas, pursuant to North Carolina v. Alford, 400 U.S. 25, 91

S.Ct. 160, 27 L.E.2d 162, to two counts of the lesser included offense of rape, in violation

of R.C. 2907.02(A), felonies of the first degree.

{¶ 17} As particularly relevant to appellant’s ineffective assistance of counsel

argument, the record reflects that during the course of the proceedings below the trial

court confirmed that appellant was educated through the twelfth grade, reads, writes,

understands English, was not under the influence of drugs or alcohol, was clear-headed,

understood the executed plea forms, and repeatedly affirmed that he understood the

proceedings.

{¶ 18} On December 30, 2020, the case proceeded to sentencing. The transcripts

reflect that the trial court carefully explained all facets and implications of the events

transpiring to appellant. The colloquy likewise reflects appellant’s affirmation of his

understanding.

{¶ 19} However, as the sentencing hearing continued, trial counsel unilaterally

proclaimed to the court, without any supporting evidence, that appellant suffers from fetal

5. alcohol syndrome. Counsel conjectured, “I believe knowing [appellant] as long as I have,

that he has Fetal Alcohol [Syndrome].” (Emphasis added).

{¶ 20} We note that counsel offered no evidence in support of this claim,

conceded that the claim was merely a “suspicion”, and conceded that appellant has never

been tested regarding fetal alcohol syndrome.

{¶ 21} In further contravention of counsel’s unilateral claim, counsel also

conceded that she had determined that she would not be filing a competency motion

regarding appellant in the instant case because appellant’s IQ is, “not low enough and

given the facts of this case as well, I did not submit for those motions.” Accordingly,

counsel made a strategic decision to not pursue any such filing.

{¶ 22} The record reflects that at multiple points during the proceedings, in direct

response to the trial court’s inquiry of appellant’s understanding, appellant confirmed his

understanding of what was transpiring. Appellant verified his understanding in numerous

direct replies to the trial court during the proceedings, such as, “I understood like what

was happening.”

{¶ 23} The trial court proceeded to sentence appellant on the first count of rape to

an indefinite sentence, ranging from a minimum term of ten years to a maximum term of

15 years, ordered to be served consecutively with the five-year term of incarceration

imposed on the second count of rape. Again, no R.C. 2929.144(B)(2) aggregate

6. minimum and maximum sentence range was determined or incorporated into the

sentence. This appeal ensued.

{¶ 24} In the first assignment of error, appellant asserts that the felony sentence

imposed is unconstitutional, in violation of the separation of powers doctrine, given the

applicability of the Reagan Tokes Act (“Tokes”) to the sentence. This portion of the

appeal must be dismissed for the reasons discussed below.

{¶ 25} Tokes restored indefinite sentencing in Ohio for first and second degree

felonies committed subsequent to March 22, 2019, such as the first degree felony rape

convictions and sentence underlying this appeal. See R.C. 2929.144.

{¶ 26} In support of the first assignment, appellant argues that, “Despite a

rebuttable presumption that a defendant will be released upon completion of the

minimum sentence * * * ODRC can order a defendant to serve the maximum term for

violation of any law that demonstrates that the defendant has not been rehabilitated.”

{¶ 27} Appellant concludes that such potential future ODRC action would

constitute the executive branch of government unconstitutionally usurping authority from

the judicial branch of government, in violation of the separation of powers doctrine.

{¶ 28} As previously held by this court in response to analogous separation of

powers sentencing claims submitted upon appeal, “Our controlling precedent as to the

issue raised, the constitutionality of the provisions for indefinite sentencing in the Reagan

Tokes law, as codified in R.C. 2967.271, requires dismissal of the appeal. See State v.

7. Stenson, 6th Dist. Lucas No. L-20-1074, 2021-Ohio-2256, ¶ 14; citing State v. Maddox,

6th Dist. Lucas No. L-19-1253, 2020-Ohio-4702.” State v. Figley, 6th Dist. Lucas L-20-

1167, 2021-Ohio-2622, ¶ 4.

{¶ 29} As further elaborated in Figley, at ¶ 5, “Beginning with our decision in

Maddox, we have consistently held that a challenge to the Reagan Tokes law becomes

ripe only after an individual sentenced under that law has completed the minimum term

of the indefinite sentence and has been denied release [by ODRC].” (Emphasis added).

{¶ 30} Accordingly, we dismiss the first assignment of error on the basis of

ripeness. Appellant has not yet completed the minimum term of the indefinite sentence,

and thus he has not thereafter been granted or denied release by ODRC, so as to arguably

trigger separation of powers implications.

{¶ 31} Given that the cross-assignment likewise pertains to sentencing, we shall

address it next. Appellee argues on cross-assignment that the trial court did not

determine an aggregate minimum and maximum sentencing range for appellant, as

required by R.C. 2929.144.

{¶ 32} In support, appellee argues that, “[D]efendant’s sentence reflects he was

sentenced to a minimum term of 10 years to a maximum term of 15 years for Count 1,

and a term of 5 years for Count 2—those sentences to be served consecutively. Instead,

pursuant to [Tokes], defendant’s sentence should reflect that he was sentenced to [an

8. aggregate] minimum term of 15 years to a maximum term of 20 years.” (Emphasis

added). We concur, and the record comports with the cross-assignment of error.

{¶ 33} Pursuant to R.C. 2929.144(B)(2), in calculating the aggregate sentencing

range for first degree felony convictions, such as the two rape convictions underlying the

instant case, the trial court must first add all consecutively imposed terms in order to

determine the aggregate minimum term.

{¶ 34} In this case, appellant was sentenced to a ten-year term of incarceration on

the first count of rape, ordered to be served consecutively with a five-year term of

incarceration imposed on the second count of rape. Accordingly, adding these

consecutively imposed terms establishes that the aggregate minimum term of

incarceration in this case should have been computed to be 15 years.

{¶ 35} Next, the statute directs that the maximum aggregate term of incarceration

be computed by adding 50% of the longest minimum term for the most serious felony

offense to the aggregate minimum term of the sentencing range. In this case, that

calculation would entail adding five years (half of ten years, the longest minimum term)

to 15 years (the aggregate minimum term) to equate 20 years as the aggregate maximum

term to be imposed.

{¶ 36} Accordingly, the correct aggregate sentencing range, as computed in

accordance with R.C. 2929.144, results in an indefinite aggregate sentence for appellant,

ranging from a minimum term of 15 years to a maximum term of 20 years.

9. {¶ 37} Because the record reflects that the sentence did not include an R.C.

2929.144(B)(2) aggregate minimum and maximum sentencing range, we find appellee’s

cross-assignment of error well-taken.

{¶ 38} We remand the case to the trial court so that the R.C. 2929.144 aggregate

sentencing range can be determined and imposed directly by the trial court, in order to

rectify the incomplete sentence previously imposed by the trial court.

{¶ 39} In the second assignment of error, appellant argues that he received

ineffective assistance of counsel. In support, appellant specifically maintains that trial

counsel should have filed a competency motion given trial counsel’s lay position that

appellant suffers from fetal alcohol syndrome. We do not concur.

{¶ 40} We note that inasmuch as the second assignment of error is not premised

on the procedurally dismissed separation of powers constitutional basis, we can proceed

with resolution of the second assignment of error on the substantive merits.

{¶ 41} It is well-established that in order to prevail on an ineffective assistance of

counsel claim, it must be demonstrated both that trial counsel’s performance fell below

an objective standard of reasonableness in some specific way, and that, but for the

established deficiency, the outcome of the case would have been different. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).

{¶ 42} As applied to the instant case, we find that the record of evidence does not

comport with appellant’s ineffective assistance claims. On the contrary, the record of

10. evidence consistently reflects appellant’s understanding of the proceedings regardless of

trial counsel’s speculative claim of appellant having fetal alcohol syndrome.

{¶ 43} The record contains no evidence demonstrative of any conditions of

appellant, fetal alcohol syndrome or otherwise, reflective that appellant was not

competent to resolve the criminal cases pending against him.

{¶ 44} Conversely, the record reflects, through appellant’s own discourse with the

trial court itself, that appellant was clearheaded, not under the influence of any

substances, was a high school graduate, had not been threatened or induced, and properly

understood the proceedings.

{¶ 45} When questioned by the trial court why she had not filed a competency

motion given her belief that appellant has fetal alcohol syndrome, trial counsel replied,

“But you know, my professional opinion that is probably not low enough and given the

facts of this case * * * I did not submit for those motions.” (Emphasis added).

{¶ 46} The record reflects that trial counsel made a tactical determination that

there was not an evidentiary basis to challenge appellant’s legal competency in this case.

{¶ 47} Accordingly, we find that appellant has failed to establish that a reasoned,

tactical decision of trial counsel to decline to file a competency motion lacking in

evidentiary support was outcome determinative, so as to have arguably constituted

ineffective assistance of counsel.

11. {¶ 48} Accordingly, we find appellant’s second assignment of error not well-

taken.

{¶ 49} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas is hereby dismissed, in part, affirmed, in part, and reversed, in part.

{¶ 50} This case is remanded to the trial court for a resentencing hearing for R.C.

2929.144 compliance purposes. Appellant and appellee are each order to pay one-half of

the costs of this appeal pursuant to App.R. 24.

Judgment dismissed, in part, affirmed, in part, and reversed, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ____________________________ JUDGE Thomas J. Osowik, J. CONCUR. ____________________________ JUDGE

Christine E. Mayle, J. ____________________________ CONCURS IN DECISION JUDGE ONLY AND WRITES SEPARATELY.

12. MAYLE, J.

{¶ 51} I concur with the majority to the extent that it concludes that (1) under

State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2020-Ohio-4702, Martinez’s challenges

to the constitutionality of the Reagan Tokes Act are not ripe for review; (2) his

ineffective-assistance argument should be found not well-taken; and (3) there is an error

in the sentencing entry that must be corrected. I write separately for two reasons.

{¶ 52} First, for the sake of judicial economy and under the authority granted to us

under R.C. 2953.08(G)(2)—permitting us to “increase, reduce, or otherwise modify a

sentence”—I would find that this court should modify the trial court judgment itself to

specify the aggregate sentence imposed instead of remanding the matter to the trial court

for correction. To that end, I would modify the trial court judgment to reflect that

Martinez was sentenced to an aggregate minimum term of 15 years (ten years on Count 1

plus five years on Count 2 equals 15 years) and a maximum term of 20 years (15 years

plus 50 percent of the longest minimum term for the most serious felony offense

imposed—i.e., 50 percent of the 10 years imposed on Count 1—equals 20 years).

{¶ 53} Additionally, although I agree that we must follow this court’s decision

in Maddox—which held that the appellant’s constitutional challenges to the Reagan

Tokes Act, S.B. 201, are not ripe for review—I disagree with the majority’s ultimate

decision to dismiss this appeal while simply “noting” the conflict that the Supreme Court

of Ohio has determined exists between Maddox and State v. Leet, 2d Dist. Montgomery

13. No. 28670, 2020-Ohio-4592; State v. Ferguson, 2d Dist. Montgomery No. 28644, 2020-

Ohio-4153; State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-4150; and State

v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837. State v. Maddox, 160

Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150.

{¶ 54} In my view, we do not have the constitutional authority to simply “note” a

conflict between our court and another Ohio court of appeals—once we determine that a

conflict exists, we must certify the conflict to the Supreme Court of Ohio under Section

3(B)(4), Article IV of the Ohio Constitution, which states, “[w]henever the judges of a

court of appeals find that a judgment upon which they have agreed is in conflict with a

judgment pronounced upon the same question by any other court of appeals of the

state, the judges shall certify the record of the case to the supreme court for review and

final determination.” (Emphasis added).

{¶ 55} For that reason, I would find that our judgment in this appeal—which

follows Maddox—is in conflict with decisions of the Second, Third, and Twelfth District

Courts of Appeals. See State v. Barnes, 2d Dist. Montgomery No. 28613, 2020-Ohio-

4150; State v. Leet, 2d Dist. Montgomery No. 28670, 2020-Ohio-4592; State v.

Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153; State v. Hacker, 161

N.E.3d 112, 2020-Ohio-5048 (3d Dist.); State v. Guyton, 12th Dist. Butler No. CA2019-

12-203, 2020-Ohio-3837; State v. Rodgers, 157 N.E.3d 142, 2020-Ohio-4102 (12th

Dist.); and State v. Morris, 12th Dist. Butler No. CA2019-12-205, 2020-Ohio-4103.

14. {¶ 56} I would dismiss this appeal and sua sponte certify a conflict to the Supreme

Court of Ohio, pursuant to Article IV, Section 3(B)(4), Ohio Constitution, on the same

issue certified in Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159 N.E.3d 1150:

Is the constitutionality of the provisions of the Reagan Tokes Act,

which allow the Department of Rehabilitation and Correctio[n] to

administratively extend a criminal defendant’s prison term beyond the

presumptive minimum term, ripe for review on direct appeal from

sentencing, or only after the defendant has served the minimum term and

been subject to extension by application of the Act?

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

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