[Cite as State v. Marton, 2013-Ohio-3430.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99253
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
EDWARD MARTON DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-561521
BEFORE: Rocco, J., Stewart, A.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: August 8, 2013 ATTORNEY FOR APPELLANT
David L. Doughten The Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor BY: John Hanley Joseph J. Ricotta Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Edward Marton appeals from the six-year sentence he
received after he pleaded guilty to 28 counts of pandering sexually oriented matter
involving a minor (hereinafter referred to as “child pornography”) and one count of
possession of criminal tools (“PCT”).
{¶2} Marton presents two assignments of error. He asserts that the trial court
failed to adequately comply with statutory requirements when imposing consecutive terms
on two of the counts. The state conceded Marton’s claim of error at oral argument;
therefore, his first assignment of error is sustained.
{¶3} Marton also asserts that his trial counsel rendered ineffective assistance for
failing to object to the consecutive terms. Upon review of the record, this court finds that
trial counsel’s conduct did not fall below an objective standard of reasonable
performance.
{¶4} Marton’s sentences are reversed. In addition, the journal entry that
memorializes Marton’s guilty pleas is flawed. Therefore, this case is remanded for
resentencing and correction of the journal entry to reflect what occurred on the record at
the change-of-plea hearing.
{¶5} Marton originally was indicted in this case on 70 counts that were alleged to
have taken place over a four-year period. Counts 1 through 68 charged Marton with
child pornography in violation of R.C. 2907.322(A)(1) and (2). Count 69 charged Marton with illegal use of a minor in nudity-oriented material or performance in violation
of R.C. 2907.323(A)(1). Count 70 charged him with PCT, to wit: two computers, a hard
drive, and CDs and DVDs. Marton entered not guilty pleas to the charges.
{¶6} The record reflects Marton’s retained defense counsel attended numerous
pretrial hearings, filed several motions on his client’s behalf, and obtained an expert
report regarding the contents of Marton’s computers. Nearly six months after Marton’s
indictment, the prosecutor informed the trial court that a plea agreement had been
reached.
{¶7} As outlined by the prosecutor, in exchange for the state’s dismissal of the
remaining counts and the state’s amendment of Count 69 to a child pornography charge,
Marton would enter guilty pleas to 29 counts, i.e., Counts 11, 23, 24, 29, 34, 36, 37, 39,
43, 47, 49, 50, 52 through 62, 64, 65, 67, 68, amended 69, and 70. The record reflects
the parties presented the trial court with a written plea agreement to that effect.1 After
the court accepted Marton’s pleas, the court referred him for a presentence investigation
report and set a date for sentencing.
{¶8} When the sentencing hearing commenced, the prosecutor presented a factual
basis for the pleas, and the court informed Marton of his duties to register as a sexual
offender. Defense counsel at that time pointed out that in conducting the plea colloquy,
the trial court had neglected to mention Count 65 and the amendment to Count 69.
1 This was labeled as “Court’s Exhibit A,” but the document does not appear in the record on appeal. {¶9} With the agreement of all the parties, the trial court simply reopened the plea
hearing only to correct the oversight and the mistake. Marton entered guilty pleas to
Count 65 and an amended Count 69. The trial court accepted the pleas, noted that the
correction did not affect “the presentence report or anything,” and proceeded to the
sentencing hearing. However, the trial court thereafter neglected to correct the journal
entry that resulted from the original plea hearing.
{¶10} After hearing from the prosecutor, defense counsel, and Marton, the trial
court imposed a prison term that totaled six years, i.e., three-year terms on all of the child
pornography counts and six months on the PCT count, with Counts 11 and 23 to be
served consecutively to each other and all other counts to be served concurrently.
{¶11} Marton appeals from the sentence imposed with two assignments of error, as
follows.
I. The trial court erred by sentencing the appellant to serve consecutive sentences without submitting reasons in support pursuant to R.C. §2929.14(C).
II. The failure to object to consecutive sentences or to request the findings of the court deprived the appellant his right to effective assistance of counsel.
{¶12} Despite the language Marton uses in setting forth his first assignment of
error, he actually argues that the trial court failed to make the required statutory findings
when it ordered his sentences on Counts 11 and 23 to run consecutively. The state
conceded this assignment of error during oral argument. {¶13} This court has set forth the current law relating to consecutive sentences in
State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891. The statutory language
directs that the trial court must “find” the relevant sentencing factors before imposing
consecutive sentences. R.C. 2929.14(C)(4). In making these findings, a trial court is
not required to use “talismanic words,” however, it must be clear from the record that the
trial court actually made the findings required by statute. Venes at ¶ 14, 17; see also
State v. Pierson, 1st Dist. Hamilton No. C-970935, 1998 Ohio App. LEXIS 3812 (Aug.
21, 1998).
{¶14} The trial court stated as follows at Marton’s sentencing hearing:
THE COURT: And when I look at the purposes and principles of sentencing, which is the Section 2929.11, [your sentence] must comply with these purposes and principles, to punish you for what you did, protect the public from future crime * * * using the minimum sanctions that * * * accomplishes the purpose without imposing an unnecessary burden on the State or local governments.
* * * [T]he victimization of these children on the internet is horrible, and it’s continuing * * *.
* * * [C]hild pornography, you have to search it out. You have to look for it. * * * .
***
When you are in the privacy of your home and you are looking, when no one, you think no one is watching, “Let me see what these images are about,” and you did that. You explored it. And, unfortunately, you got caught in this case.
So now what I have to decide is what’s a fair and just sentence based upon other people who have been before me who have similar cases, and who have the same background as you, and I’ve also got to consider the need for incapacitation, detention, rehabilitation, and restitution. And I should say that the purposes and principles of sentencing should be commensurate with and not demeaning to the seriousness of your conduct and the impact it had on the victim and consistent with sentences for similar crimes by similar people in your situation.
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[Cite as State v. Marton, 2013-Ohio-3430.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99253
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
EDWARD MARTON DEFENDANT-APPELLANT
JUDGMENT: REVERSED AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-561521
BEFORE: Rocco, J., Stewart, A.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: August 8, 2013 ATTORNEY FOR APPELLANT
David L. Doughten The Brownhoist Building 4403 St. Clair Avenue Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor BY: John Hanley Joseph J. Ricotta Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 KENNETH A. ROCCO, J.:
{¶1} Defendant-appellant Edward Marton appeals from the six-year sentence he
received after he pleaded guilty to 28 counts of pandering sexually oriented matter
involving a minor (hereinafter referred to as “child pornography”) and one count of
possession of criminal tools (“PCT”).
{¶2} Marton presents two assignments of error. He asserts that the trial court
failed to adequately comply with statutory requirements when imposing consecutive terms
on two of the counts. The state conceded Marton’s claim of error at oral argument;
therefore, his first assignment of error is sustained.
{¶3} Marton also asserts that his trial counsel rendered ineffective assistance for
failing to object to the consecutive terms. Upon review of the record, this court finds that
trial counsel’s conduct did not fall below an objective standard of reasonable
performance.
{¶4} Marton’s sentences are reversed. In addition, the journal entry that
memorializes Marton’s guilty pleas is flawed. Therefore, this case is remanded for
resentencing and correction of the journal entry to reflect what occurred on the record at
the change-of-plea hearing.
{¶5} Marton originally was indicted in this case on 70 counts that were alleged to
have taken place over a four-year period. Counts 1 through 68 charged Marton with
child pornography in violation of R.C. 2907.322(A)(1) and (2). Count 69 charged Marton with illegal use of a minor in nudity-oriented material or performance in violation
of R.C. 2907.323(A)(1). Count 70 charged him with PCT, to wit: two computers, a hard
drive, and CDs and DVDs. Marton entered not guilty pleas to the charges.
{¶6} The record reflects Marton’s retained defense counsel attended numerous
pretrial hearings, filed several motions on his client’s behalf, and obtained an expert
report regarding the contents of Marton’s computers. Nearly six months after Marton’s
indictment, the prosecutor informed the trial court that a plea agreement had been
reached.
{¶7} As outlined by the prosecutor, in exchange for the state’s dismissal of the
remaining counts and the state’s amendment of Count 69 to a child pornography charge,
Marton would enter guilty pleas to 29 counts, i.e., Counts 11, 23, 24, 29, 34, 36, 37, 39,
43, 47, 49, 50, 52 through 62, 64, 65, 67, 68, amended 69, and 70. The record reflects
the parties presented the trial court with a written plea agreement to that effect.1 After
the court accepted Marton’s pleas, the court referred him for a presentence investigation
report and set a date for sentencing.
{¶8} When the sentencing hearing commenced, the prosecutor presented a factual
basis for the pleas, and the court informed Marton of his duties to register as a sexual
offender. Defense counsel at that time pointed out that in conducting the plea colloquy,
the trial court had neglected to mention Count 65 and the amendment to Count 69.
1 This was labeled as “Court’s Exhibit A,” but the document does not appear in the record on appeal. {¶9} With the agreement of all the parties, the trial court simply reopened the plea
hearing only to correct the oversight and the mistake. Marton entered guilty pleas to
Count 65 and an amended Count 69. The trial court accepted the pleas, noted that the
correction did not affect “the presentence report or anything,” and proceeded to the
sentencing hearing. However, the trial court thereafter neglected to correct the journal
entry that resulted from the original plea hearing.
{¶10} After hearing from the prosecutor, defense counsel, and Marton, the trial
court imposed a prison term that totaled six years, i.e., three-year terms on all of the child
pornography counts and six months on the PCT count, with Counts 11 and 23 to be
served consecutively to each other and all other counts to be served concurrently.
{¶11} Marton appeals from the sentence imposed with two assignments of error, as
follows.
I. The trial court erred by sentencing the appellant to serve consecutive sentences without submitting reasons in support pursuant to R.C. §2929.14(C).
II. The failure to object to consecutive sentences or to request the findings of the court deprived the appellant his right to effective assistance of counsel.
{¶12} Despite the language Marton uses in setting forth his first assignment of
error, he actually argues that the trial court failed to make the required statutory findings
when it ordered his sentences on Counts 11 and 23 to run consecutively. The state
conceded this assignment of error during oral argument. {¶13} This court has set forth the current law relating to consecutive sentences in
State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891. The statutory language
directs that the trial court must “find” the relevant sentencing factors before imposing
consecutive sentences. R.C. 2929.14(C)(4). In making these findings, a trial court is
not required to use “talismanic words,” however, it must be clear from the record that the
trial court actually made the findings required by statute. Venes at ¶ 14, 17; see also
State v. Pierson, 1st Dist. Hamilton No. C-970935, 1998 Ohio App. LEXIS 3812 (Aug.
21, 1998).
{¶14} The trial court stated as follows at Marton’s sentencing hearing:
THE COURT: And when I look at the purposes and principles of sentencing, which is the Section 2929.11, [your sentence] must comply with these purposes and principles, to punish you for what you did, protect the public from future crime * * * using the minimum sanctions that * * * accomplishes the purpose without imposing an unnecessary burden on the State or local governments.
* * * [T]he victimization of these children on the internet is horrible, and it’s continuing * * *.
* * * [C]hild pornography, you have to search it out. You have to look for it. * * * .
***
When you are in the privacy of your home and you are looking, when no one, you think no one is watching, “Let me see what these images are about,” and you did that. You explored it. And, unfortunately, you got caught in this case.
So now what I have to decide is what’s a fair and just sentence based upon other people who have been before me who have similar cases, and who have the same background as you, and I’ve also got to consider the need for incapacitation, detention, rehabilitation, and restitution. And I should say that the purposes and principles of sentencing should be commensurate with and not demeaning to the seriousness of your conduct and the impact it had on the victim and consistent with sentences for similar crimes by similar people in your situation.
When I look at all those factors, Edward, what I’m going to do is, I’m going to sentence you * * * to three years on each of th[e] counts.
Count No[s]. 11 and 23 will run consecutive to each other, and the remainder will run concurrent with each other.
* * * Count No. 70, six months.
* * * No matter what sentence I imposed on this case, it’s not going to be
enough for the victims of these crimes * * * .
{¶15} The foregoing demonstrates that the trial court did not make each of the
necessary findings. Because the record fails to demonstrate that the trial court complied
with its duties under R.C. 2929.14(C)(4), and because the state has conceded the error,
Marton’s first assignment of error is sustained.
{¶16} In Marton’s second assignment of error, he claims trial counsel rendered
ineffective assistance because counsel failed to object to the trial court’s imposition of
consecutive sentences. Marton’s argument is unpersuasive.
{¶17} This court reviews a claim of ineffective assistance of trial counsel under the
two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
Trial counsel is entitled to a strong presumption that his conduct falls within the wide
range of reasonable assistance. Strickland, 466 U.S. at 688. {¶18} Therefore, in order to sustain a claim of ineffective assistance of counsel,
appellant must demonstrate that (1) trial counsel’s conduct fell below an objective
standard of reasonableness, and (2) counsel’s errors were serious enough to create a
reasonable probability that, but for the errors, the result of the trial would have been
different. Id. Marton cannot sustain this burden on the record before this court.
{¶19} The record reflects Marton’s trial counsel worked hard on his behalf. Trial
counsel accomplished the following: (1) he negotiated a beneficial plea agreement
whereby the state dismissed more than half of the charges against Marton, (2) he made a
very persuasive argument for leniency in the sentencing memorandum and during the
sentencing hearing, and (3) he succeeded in obtaining an extremely light total prison
sentence for his client, who had pleaded guilty to 28 second-degree felonies. State v.
Montgomery, 2d Dist. Montgomery No. 22625, 2009-Ohio-1276, ¶ 12.
{¶20} As noted by this writer in Venes, 8th Dist. Cuyahoga No. 98682,
2013-Ohio-1891, at ¶ 31, trial courts face a dilemma with respect to felony sentencing in
the wake of statutory changes and in the face of the conflicting precedents issued by the
Ohio Supreme Court and this court. Trial counsel are faced with the same quandary.
Thus, trial counsel in this case cannot be deemed ineffective for failing to object to an
extremely light prison sentence.
{¶21} Moreover, because this court has determined the trial court’s failure to
comply with R.C. 2929.14(C)(4) makes his sentences “contrary to law,” Marton cannot demonstrate any prejudice occurred from trial counsel’s omission. Venes at ¶ 17.
Marton’s second assignment of error is overruled.
{¶22} Marton’s sentences are reversed, and this case is remanded to the trial court
for resentencing and with an order to correct the journal entry that resulted from the plea
hearing to reflect that Marton entered a guilty plea, in addition to the other counts listed,
to Count 65 and an amended Count 69.
It is ordered that appellant and appellee share 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. Case remanded to the trial court for
resentencing and correction of the journal entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, A.J., and EILEEN A. GALLAGHER, J., CONCUR