[Cite as State v. Pedraza, 2020-Ohio-2661.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                       C.A. No.       19CA0049-M

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
BENJAMIN PEDRAZA III                                COURT OF COMMON PLEAS
                                                    COUNTY OF MEDINA, OHIO
        Appellant                                   CASE No.   18CR0990

                                 DECISION AND JOURNAL ENTRY

Dated: April 27, 2020



        TEODOSIO, Judge.

        {¶1}     Appellant, Benjamin Pedraza III, appeals from his convictions for pandering

sexually oriented matter involving a minor in the Medina Court of Common Pleas. This Court

affirms.

                                               I.

        {¶2}     Mr. Pedraza met the victim (“T.B.”) when they both worked at a Winking Lizard

restaurant, and the couple soon entered into a relationship together. In May of 2018, 30-year-old

Mr. Pedraza and 16-year-old T.B. rented a Brunswick hotel room and used T.B.’s cell phone to

film themselves engaged in sexual activity. Two videos in particular were created or recorded:

one video depicts the couple engaging in vaginal intercourse, while the other depicts Mr. Pedraza

performing oral sex on T.B.

        {¶3}     Upon discovering sexually explicit emails between the couple, T.B.’s mother

contacted the police and provided them with T.B.’s cell phone. Mr. Pedraza was indicted on two
                                                  2


counts of pandering sexually oriented matter involving a minor, felonies of the second degree.

After a jury trial, he was found guilty on both counts. The trial court ordered a pre-sentence

investigation report (“PSI”) and later sentenced Mr. Pedraza to five years in prison for each count,

to be served concurrently with each other, and classified him as a Tier II sex offender.

       {¶4}    Mr. Pedraza now appeals from his convictions and raises three assignments of error

for this Court’s review.

                                                  II.

                                ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED AS A MATTER OF LAW IN IMPOSING
       SEPARATE SENTENCES FOR THE ALLIED OFFENSES IN VIOLATION OF
       THE DOUBLE JEOPARDY CLAUSE OF THE 5TH AMENDMENT TO THE
       U.S. CONSTITUTION AND ARTICLE I, SECTION[] 10 OF THE OHIO
       CONSTITUTION.

       {¶5}    In his first assignment of error, Mr. Pedraza argues that the trial court erred in

imposing separate sentences for allied offenses of similar import. We disagree.

       {¶6}    Mr. Pedraza argues that the two videos at issue were recorded with a single animus,

at approximately the same time, and as part of a single course of conduct. He never raised the

issue of allied offenses at the trial court level and has thus forfeited all but plain error on appeal.

See State v. Beech, 9th Dist. Summit No. 29036, 2019-Ohio-120, ¶ 17. He now argues that the

offenses should have been merged for sentencing as allied offenses of similar import, and that the

court’s imposition of separate sentences therefore “constituted plain error pursuant to Crim.R.

52(B)[,]” resulting in a void sentence.

       {¶7}    The Supreme Court of Ohio has stated that “when the trial court concludes that the

accused has in fact been found guilty of allied offenses of similar import, imposing separate

sentences for those offenses is contrary to law and the sentences are void on the face of the
                                                   3


judgment of conviction.” State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, ¶ 29. Still, “a

trial court’s failure to merge offenses for purposes of sentencing, where the court has not

previously found the offenses to be allied (either expressly or by merely failing to make such a

finding), does not result in a void sentence, but rather a voidable one * * *.” In re D.M., 9th Dist.

Medina No. 16CA0019-M, 2017-Ohio-232, ¶ 9, citing Williams at ¶ 23, 26. The trial court here

did not make any finding as to whether Mr. Pedraza’s offenses were allied and, therefore, his

sentence will not be deemed void, regardless of whether the offenses are allied. See State v. Fields,

9th Dist. Summit No. 28667, 2018-Ohio-1605, ¶ 13.

        {¶8}    Although not brought to the attention of the trial court, we may still notice plain

errors or defects affecting substantial rights. See Crim.R. 52(B). To establish plain error, one must

show (1) an error occurred, i.e., a deviation from a legal rule, (2) the error is plain, i.e., an obvious

defect in the proceedings, and (3) the error affected a substantial right, i.e., affected the outcome

of the proceedings. State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, ¶ 36. Notice of plain

error “is to be taken with the utmost caution, under exceptional circumstances and only to prevent

a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the

syllabus. “Under a plain error review, any mistake by the trial court regarding allied offenses ‘is

not reversible error unless it affected the outcome of the proceeding and reversal is necessary to

correct a manifest miscarriage of justice.’” Beech at ¶ 17, quoting State v. Rogers, 143 Ohio St.3d

385, 2015-Ohio-2459, ¶ 3. Mr. Pedraza therefore bears the burden of demonstrating “‘a reasonable

probability that [his] convictions are for allied offenses of similar import committed with the same

conduct and without a separate animus[.]’” Id., quoting Rogers at ¶ 3.

        {¶9}    “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution and [Article I, Section 10,] of the Ohio Constitution,
                                                  4


which prohibits multiple punishments for the same offense.” State v. Underwood, 124 Ohio St.3d

365, 2010-Ohio-1, ¶ 23. The statute provides:

       (A) Where the same conduct by defendant can be construed to constitute two or
       more allied offenses of similar import, the indictment or information may contain
       counts for all such offenses, but the defendant may be convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of dissimilar
       import, or where his conduct results in two or more offenses of the same or similar
       kind committed separately or with a separate animus as to each, the indictment or
       information may contain counts for all such offenses, and the defendant may be
       convicted of all of them.

       {¶10} The Supreme Court of Ohio clarified the standard for an analysis of allied offenses

of similar import in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995. “In determining whether

offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must

evaluate three separate factors—the conduct, the animus, and the import.” Id. at paragraph one of

the syllabus. “At its heart, the allied-offense analysis is dependent upon the facts of a case because

R.C. 2941.25 focuses on the defendant’s conduct.” Id. at ¶ 26. “Animus” has been defined as

“purpose or, more properly, immediate motive.” State v. Logan, 60 Ohio St.2d 126, 131 (1979).

Multiple offenses are of dissimilar import “when the defendant’s conduct constitutes offenses

involving separate victims or if the harm that results from each offense is separate and

identifiable.” Ruff at ¶ 26. Therefore, “courts must ask three questions when [a] defendant’s

conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2)

Were they committed separately? and (3) Were they committed with separate animus or

motivation?” Ruff at ¶ 31. “An affirmative answer to any of the above will permit separate

convictions.” Id. “It is the defendant’s burden to establish his or her entitlement to the protections

of Section 2941.25.” State v. Dembie, 9th Dist. Lorain No. 14CA010527, 2015-Ohio-2888, ¶ 8.
                                                 5


       {¶11} Mr. Pedraza was convicted of two counts of felony-two pandering sexually oriented

matter involving a minor, under R.C. 2907.322(A)(1), which states: “No person, with knowledge

of the character of the material or performance involved, shall * * * [c]reate, record, photograph,

film, develop, reproduce, or publish any material that shows a minor * * * participating or engaging

in sexual activity * * *.” The charges stemmed from the creation, recording, or filming of two

separate, sexually explicit videos, which were both recorded on T.B.’s cell phone.

       {¶12} This Court cannot agree that Mr. Pedraza’s creation of these two videos were allied

offenses of similar import. We find no merit in his contention that the offenses were allied merely

because the two videos were filmed around the same time. While the videos may have been

recorded around the same time, they were not created simultaneously. The recording of each video

“constitutes a new and distinct crime because ‘the mere fact that the crimes occurred in quick

succession does not mean that they were not committed separately or with separate animus.’” State

v. Duhamel, 8th Dist. Cuyahoga No. 102346, 2015-Ohio-3145, ¶ 60, quoting State v. Eal, 10th

Dist. Franklin No. 11AP-460, 2012-Ohio-1373, ¶ 93. In fact, “multiple convictions are allowed

for each individual video file because a separate animus exists every time a separate image or file

is created and saved.” State v. Pippin, 1st Dist. Hamilton Nos. C-160380 and C-160381, 2017-

Ohio-6970, ¶ 50. See also State v. Hendricks, 8th Dist. Cuyahoga No. 92213, 2009-Ohio-5556, ¶

35. We therefore conclude that the recording of each video was committed separately and with a

separate animus. See State v. Starcher, 5th Dist. Stark No. 2015CA00058, 2015-Ohio-5250, ¶ 36-

37; State v. Ryan, 5th Dist. Delaware No. 18 CAA 01 0011, 2018-Ohio-4739, ¶ 65; State v.

Lucicosky, 7th Dist. Mahoning No. 16 MA 0112, 2017-Ohio-2960, ¶ 23-24; State v. Mannarino,

8th Dist. Cuyahoga No. 98727, 2013-Ohio-1795, ¶ 53; State v. Stone, 1st Dist. Hamilton No. C-

040323, 2005-Ohio-5206, ¶ 9.
                                                  6


       {¶13} Because the offenses were committed separately and with a separate animus, Mr.

Pedraza has failed to demonstrate a reasonable probability that his crimes were allied offenses of

similar import. See Beech, 2019-Ohio-120, at ¶ 17. He has therefore failed to establish any error,

let alone plain error, committed by the trial court in this matter.

       {¶14} Mr. Pedraza’s first assignment of error is overruled.

                               ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. PEDRAZA BY
       IMPOSING A SENTENCE BASED UPON FACTS NOT CONTAINED IN THE
       RECORD AND THE TRIAL COURT’S FAILURE TO CONSIDER R.C. 2929.12,
       IN VIOLATION OF MR. PEDRAZA’S RIGHTS UNDER THE SIXTH AND
       FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION,
       AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.

       {¶15} In his second assignment of error, Mr. Pedraza argues that the trial court erred in

imposing a sentence (1) based on facts not contained in the record, and (2) without considering

R.C. 2929.12. We disagree.

       {¶16} “[A]n appellate court may vacate or modify a felony sentence on appeal 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. See also R.C. 2953.08(G)(2). “Clear and convincing

evidence is that measure or degree of proof which will produce in the mind of the trier of facts a

firm belief or conviction as to the allegations sought to be established.” Cross v. Ledford, 161

Ohio St. 469, 477 (1954).

       {¶17} Mr. Pedraza first challenges the trial court’s statements at sentencing that he

“manipulated” T.B., causing her “serious psychological harm,” arguing that the evidence instead

simply showed that the couple is in love. Contrary to Mr. Pedraza’s belief, however, the trial

court’s statements were indeed supported by the record.
                                                 7


       {¶18} T.B.’s mother spoke at the sentencing hearing and detailed the “irreparable harm”

suffered by T.B. as a result of Mr. Pedraza’s actions. She spoke of how T.B. blames herself for

her actions while under the direction of Mr. Pedraza. According to her mother, T.B. would lie and

manipulate her family under Mr. Pedraza’s tutelage in order to maintain contact with him. She

has since abandoned her family, friends, and religious beliefs. T.B. has engaged in counseling

since Mr. Pedraza’s incarceration, but has been adamant that she will wait for him to be released

and will lift a protection order once she reaches the age of eighteen. T.B. does not realize she is a

victim and has made repeated threats of “not being alive” if she cannot be with Mr. Pedraza.

       {¶19} The mother’s statements were bolstered by T.B.’s own statements at sentencing.

T.B. told the court that Mr. Pedraza is now incarcerated due to “our” poor judgment and a mistake

that “we” made. She admitted that she blames herself for Mr. Pedraza’s incarceration and also

prays he can find it in his heart to forgive her for what she has put him through. She said it is her

fault that she is now alone and that his children have been without their father. She maintained

that she still loves him and looks forward to the time when they can put this behind them.

       {¶20} A PSI was also prepared in this case and was considered by the trial court. The PSI

painstakingly details countless e-mails and text messages between Mr. Pedraza and T.B., many of

which are sexually explicit, of a lewd and lascivious nature, and depict the chilling amount of

physical and psychological control Mr. Pedraza maintained over the young victim. The PSI also

states that the “[v]ictim suffered serious physical, psychological, or economic harm[,]” noting

“[t]he victim’s mother indicated to the police that the defendant brainwashed the victim.”

       {¶21} Mr. Pedraza next claims that the trial court “never considered the recidivism

factors” in this case, yet he presents no meaningful argument beyond this broad, conclusory

statement. See App.R. 16(A)(7). Even so, the record belies this claim and instead establishes that
                                                 8


the trial court did, in fact, properly consider the recidivism factors set forth in R.C. 2929.12. The

prosecutor first noted during sentencing: “Judge, as the Court is well aware, the seriousness and

recidivism factors that the Court needs to consider * * *.” Then, while speaking with defense

counsel, the court itself referenced its consideration of recidivism factors while making statements

such as the following: “[A]s you reference 2929.12(D), let’s talk about the consideration then that

the offender shows no genuine remorse”; and “[I]sn’t it really the best evidence of the offender’s

lack of genuine remorse the fact that after the verdict came back, despite the no contact order, he

contacted the victim by phone while he was in the jail?” Most importantly, however, the court

explicitly stated immediately prior to sentencing Mr. Pedraza that it considered “all of the relevant

factors outlined under 2929.11, 12, and 13 of the Revised Code, including the seriousness of the

offense, recidivism factors and to protect the public from future crime and to punish [him] for [his]

actions in this matter * * *.”

       {¶22} Mr. Pedraza does not dispute that his sentences fall within the permissible statutory

range for felony-two pandering sexually oriented matter involving a minor offenses. He has also

failed to show 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. See Marcum,

146 Ohio St.3d 516, 2016-Ohio-1002, at ¶ 1; R.C. 2953.08(G)(2).

       {¶23} Accordingly, Mr. Pedraza’s second assignment of error is overruled.

                                 ASSIGNMENT OF ERROR THREE

       MR. PEDRAZA WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
       AND WAS DENIED HIS CONSTITUTIONAL RIGHTS AGAINST
       UNREASONABLE SEARCHES AND SEIZURES GUARANTEED BY THE
       FOURTH, THE FIFTH, AND FOURTEENTH AMENDMENT[S] OF THE U.S.
       CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO
       CONSTITUTION.
                                                 9


       {¶24} In his third assignment of error, Mr. Pedraza argues that he received ineffective

assistance of counsel. We disagree.

       {¶25} “[I]n Ohio, a properly licensed attorney is presumed competent.” State v. Gondor,

112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62. “There are countless ways to provide effective

assistance in any given case. Even the best criminal defense attorneys would not defend a

particular client in the same way.” Strickland v. Washington, 466 U.S. 668, 689 (1984). Moreover,

debatable trial tactics will not constitute ineffective assistance of counsel. State v. Clayton, 62

Ohio St.2d 45, 49 (1980). To prove ineffective assistance of counsel, one must establish that: (1)

her counsel’s performance was deficient, and (2) the deficient performance prejudiced the defense.

Strickland at 687. Counsel’s performance is deficient if it falls below an objective standard of

reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the

syllabus. Prejudice can be shown by proving “there exists a reasonable probability that, were it

not for counsel’s errors, the result of the trial would have been different.” Id. at paragraph three

of the syllabus. “[T]he Court need not address both Strickland prongs if an appellant fails to prove

either one.” State v. Lortz, 9th Dist. Summit No. 23762, 2008-Ohio-3108, ¶ 34.

       {¶26} Mr. Pedraza argues that his counsel was ineffective for not filing a motion to

suppress “rais[ing] the issue of the lack of a search warrant to access the cell phone contents.” He

argues that the mother’s consent for police to search her daughter’s phone was not valid. Mr.

Pedraza believes the admission of “critical” “cell phone records” obtained without a search warrant

violated his constitutional rights against unreasonable searches and seizures.

       {¶27} Not only does the failure to file a motion to suppress not constitute ineffective

assistance of counsel per se, State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, ¶ 65, but the

argument Mr. Pedraza claims his counsel should have raised in a motion to suppress concerns the
                                                 10


constitutional rights of third parties. “Fourth Amendment rights are personal in nature and may

not be vicariously asserted by others.”      State v. Dennis, 79 Ohio St.3d 421, 426 (1997).

“[S]uppression of the product of a Fourth Amendment violation can be successfully urged only by

those whose rights were violated * * *, not by those who are aggrieved solely by the introduction

of damaging evidence.” Alderman v. United States, 394 U.S. 165, 171-172 (1969).

       {¶28} Thus, because Mr. Pedraza lacked standing to challenge any search of T.B.’s cell

phone in this case, he cannot show how a motion to suppress evidence obtained from that cell

phone would have been successful. Likewise, his counsel’s decision to not file such a meritless

motion cannot be deemed deficient performance. Because Mr. Pedraza has failed to show any

deficient performance by counsel, we need not address the issue of prejudice, and his ineffective

assistance claim must fail. See Lortz at ¶ 34.

       {¶29} Mr. Pedraza’s third assignment of error is overruled.

                                                 III.

       {¶30} Mr. Pedraza’s assignments of error are all overruled. The judgment of the Medina

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
                                                11


for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



HENSAL, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

PAUL M. GRANT, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
