[Cite as State v. Martinez, 2011-Ohio-5832.]


                Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 96222



                                       STATE OF OHIO
                                                 PLAINTIFF-APPELLEE

                                                  vs.

                                  RAFAEL MARTINEZ
                                                 DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-534788

        BEFORE: Cooney, J., Blackmon, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: November 10, 2011
                              2

ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Mark J. Mahoney
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


ALSO LISTED

Rafael Martinez, pro se
Inmate No. 590-149
501 Thompson Road
P.O. Box 8000
Conneaut, Ohio 44030




COLLEEN CONWAY COONEY, J.:
                                            3

       {¶ 1} Defendant-appellant, Rafael Martinez (“Martinez”), appeals his convictions

for aggravated vehicular assault, vandalism, driving under the influence (“OVI”), and

child endangering. Finding no merit to this appeal, we affirm.

       {¶ 2} In March 2010, Martinez was indicted on two counts of aggravated

vehicular assault, one count of vandalism, one count of OVI, and three counts of child

endangering.   The charges stemmed from an accident that occurred when Martinez

operated his vehicle while under the influence of alcohol, with his girlfriend and three

children in the vehicle.   Martinez lost control of the vehicle, crashing into a house and

injuring the homeowner.        Martinez pled guilty to one count of aggravated vehicular

assault, one count of vandalism, one count of OVI, and one count of child endangering.

The remaining three charges were nolled by the State.       The court ordered a presentence

investigation report for the sentencing hearing.

       {¶ 3} The trial court sentenced Martinez to three years in prison for the

aggravated vehicular assault charge, ten months for the vandalism charge, six months on

the OVI charge, and six months on the child endangering charge.         All sentences were

ordered to run concurrently.

       {¶ 4} Martinez now appeals, raising two assignments of error through counsel,

and three assignments of error pro se.

                                          Felony Sentence
                                                4

       {¶ 5} In his first assignment of error, Martinez argues that his sentence is contrary

to law and an abuse of discretion. He raises this same argument in his pro se brief in the

third assignment of error. These two assignments of error will be addressed together.

       {¶ 6} We review felony sentences using the Kalish framework.                State v. Kalish,

120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. The Kalish court, in a split

decision, declared that in applying State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470, to the existing statutes, appellate courts “must apply a two-step approach.”

Kalish at ¶4.1

       {¶ 7} Appellate courts must first “examine the sentencing court’s compliance

with all applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law.”          Id. at ¶4.    If this first prong is

satisfied, then we review the trial court’s decision under an abuse-of-discretion standard.

Id. at ¶4, 19.

       {¶ 8} In the first step of our analysis, we review whether the sentence is contrary

to law as required by R.C. 2953.08(G).

       {¶ 9} As the Kalish court noted, post-Foster, “trial courts have full discretion to

impose a prison sentence within the statutory range and are no longer required to make



           We recognize Kalish is merely persuasive and not necessarily controlling because it has no
       1


majority. The Supreme Court split over whether we review sentences under an abuse-of-discretion
standard in some instances.
                                               5

findings and give reasons for imposing maximum, consecutive or more than the minimum

sentence.”    Id. at ¶11; Foster, paragraph seven of the syllabus; State v. Mathis, 109 Ohio

St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus. See, also, State

v. Redding, Cuyahoga App. No. 90864, 2008-Ohio-5739; State v. Ali, Cuyahoga App.

No. 90301, 2008-Ohio-4449; State v. McCarroll, Cuyahoga App. No. 89280,

2007-Ohio-6322; State v. Sharp, Cuyahoga App. No. 89295, 2007-Ohio-6324.                       The

Kalish court declared that although Foster eliminated mandatory judicial fact-finding, it

left R.C. 2929.11 and 2929.12 intact. Kalish at ¶13.           As a result, the trial court must

still consider these statutes when imposing a sentence. Id., citing Mathis at ¶38.

       {¶ 10} R.C. 2929.11(A) provides that:

       “[A] court that sentences an offender for a felony shall be guided by the overriding
       purposes of felony sentencing[,] * * * to protect the public from future crime by
       the offender and others and to punish the offender. To achieve those purposes, the
       sentencing court shall consider the need for incapacitating the offender, deterring
       the offender and others from future crime, rehabilitating the offender, and making
       restitution to the victim of the offense, the public, or both.”

       {¶ 11} R.C. 2929.12 provides a nonexhaustive list of factors a trial court must

consider when determining the seriousness of the offense and the likelihood that the

offender will commit future offenses.

       {¶ 12} The Kalish court also noted that R.C. 2929.11 and 2929.12 are not

fact-finding statutes like R.C. 2929.14.2        Kalish at ¶17.      Rather, they “serve as an



          In State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the Ohio Supreme
       2


Court addressed Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, holding that Ice
                                               6

overarching guide for trial judges to consider in fashioning an appropriate sentence.”          Id.

 Thus, “[i]n considering these statutes in light of Foster, the trial court has full discretion

to determine whether the sentence satisfies the overriding purposes of Ohio’s sentencing

structure.”   Id.

       {¶ 13} In the instant case, we do not find Martinez’s sentence contrary to law. His

three-year sentence is within the permissible statutory range for aggravated vehicular

assault, a third-degree felony, which carries a maximum penalty of six years in prison.

       {¶ 14} In the sentencing journal entry, the trial court acknowledged that it had

considered all factors of law and found that prison was consistent with the purposes of

R.C. 2929.11.       On these facts, we cannot conclude that the sentence is contrary to law.

       {¶ 15} Having satisfied the first step, we next consider whether the trial court

abused its discretion. Kalish at ¶4, 19. “An abuse of discretion is ‘“more than an error

of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.”’”       Id. at ¶19, quoting Blakemore v. Blakemore (1983), 5 Ohio St.3d

217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 404

N.E.2d 144.




“does not revive Ohio’s former consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and
2929.41(A), which were held unconstitutional in Foster. Trial court judges are not obligated to
engage in judicial fact-finding prior to imposing consecutive sentences unless the General Assembly
enacts new legislation requiring that findings be made.” Hodge at paragraphs two and three of the
syllabus.
                                            7

       {¶ 16} Martinez argues that his sentence constitutes an abuse of discretion.

However, after a thorough review of the record, we find that the trial court did not abuse

its discretion in imposing a three-year prison sentence.       The court allowed defense

counsel the opportunity to advocate for mitigation of any penalty.        The court also

allowed Martinez to address the court.    The judge spoke of Martinez’s prior convictions

and probation violations, including a prior OVI.

       {¶ 17} We find nothing in the record to suggest that the trial court’s decision was

unreasonable, arbitrary, or unconscionable.    Accordingly, these assignments of error are

overruled.

                                            Allocution

       {¶ 18} In his second assignment of error, Martinez argues that the court violated

his right to due process by denying him his right to allocution.

       {¶ 19} Crim.R. 32 describes the trial court’s duty when imposing a sentence.

Crim.R. 32(A)(1) provides in pertinent part:

       {¶ 20} “* * * At the time of imposing sentence, the court shall do all of the

following:

       {¶ 21} “Afford counsel an opportunity to speak on behalf of the defendant and

address the defendant personally and ask if he or she wishes to make a statement in his or

her own behalf or present any information in mitigation of punishment.”
                                            8

       {¶ 22} A thorough review of the record illustrates that during the sentencing

hearing, the trial court addressed both defense counsel and Martinez directly, and

afforded both a full opportunity to address the court. Defense counsel spoke extensively

in favor of mitigation.   (Tr. 25-32.)    The court then engaged Martinez in a dialogue

regarding the incident and his failure to maintain sobriety. Both defense counsel and

Martinez were afforded the opportunity to argue for mitigation, although the court never

specifically asked about mitigation.     Martinez was therefore not denied his right of

allocution.

       {¶ 23} Accordingly, this assignment of error is overruled.

                                       Voluntariness of Plea

       {¶ 24} In his first pro se assignment of error, Martinez argues that the trial court

erred in accepting his plea.       He argues that the court violated rules governing

amendments to indictments and that the indictment failed to advise him of the a material

element of the crime with which he was charged.

       {¶ 25} Martinez’s alleged error arises out of the State’s request to amend the

original indictment. Prior to accepting Martinez’s plea, the State asked to amend Count

5, child endangering, in the original indictment to include the name of a second victim,

the victim listed in Count 6.         Crim.R. 7(D) addresses amendments to criminal

indictments, stating:

       “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,
                                            9

       or omission in form or substance, or of any variance with the evidence, provided
       no change is made in the name or identity of the crime charged.”

       {¶ 26} Prior to accepting the amendment, the trial court asked defense counsel if

he would “waive any defect in the indictment?”     Counsel replied “[y]es, your Honor.”

       {¶ 27} Martinez argues that his plea was not knowingly and voluntarily made

because he did not knowingly waive his right to a defective indictment.      Martinez has

failed to show how the addition of a second victim’s name to Count 5 actually constituted

a defect or how it prejudiced him in any way. Having originally been charged with three

counts of child endangering (Counts 5, 6, 7), with three separately identified victims,

Martinez was fully advised of all material details regarding his charges. Simply adding

the name of one victim to one of the other counts, in light of the remaining two child

endangering charges being nolled, does not warrant vacating his plea.

       {¶ 28} Moreover, after a recitation of the plea agreement, the trial court directly

addressed Martinez prior to accepting his plea and asked if he understood everything that

had been said.   Martinez responded affirmatively, without questioning the waiver or the

amendment despite having the opportunity to raise the issue if he had been confused.

       {¶ 29} The record shows that Martinez’s plea was properly taken and that the trial

court adhered to all the requirements of       Crim.R. 11(C).    Counsel’s waiver of any

defect in the original indictment did not invalidate Martinez’s plea.

       {¶ 30} Accordingly, this assignment of error is overruled.

                                Ineffective Assistance of Counsel
                                            10

       {¶ 31} In his second pro se assignment of error, Martinez argues that he was

denied effective assistance of counsel.

       {¶ 32} To reverse a conviction for ineffective assistance of counsel, the defendant

must prove “(1) that counsel’s performance fell below an objective standard of

reasonableness, and (2) that counsel’s deficient performance prejudiced the defendant

resulting in an unreliable or fundamentally unfair outcome of the proceeding.” State v.

Madrigal, 87 Ohio St.3d 378, 388-389, 2000-Ohio-448, 721 N.E.2d 52, citing Strickland

v. Washington (1984), 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674.

       {¶ 33} As to the second element of the test, the defendant must establish “that there

exists a reasonable probability that, were it not for counsel’s errors, the result of the trial

would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d

373, paragraph three of the syllabus; Strickland at 686.           In evaluating whether a

petitioner has been denied effective assistance of counsel, the Ohio Supreme Court held

that the test is “whether the accused, under all the circumstances, had a fair trial and

substantial justice was done.” State v. Hester (1976), 45 Ohio St.2d 71, 341 N.E.2d 304,

paragraph four of the syllabus.

       {¶ 34} This court must presume that a licensed attorney is competent and that the

challenged action is the product of sound trial strategy and falls within the wide range of

professional assistance.     Strickland at 689.      Courts must generally refrain from

second-guessing trial counsel’s strategy, even where that strategy is questionable, and
                                           11

appellate counsel claims that a different strategy would have been more effective. State

v. Jalowiec, 91 Ohio St.3d 220, 237, 2001-Ohio-26, 744 N.E.2d 163.

       {¶ 35} Martinez alleges that he was denied effective assistance of counsel when his

attorney waived any defect in the indictment.      Having found that no error occurred in

waiving any “defect”     in the original indictment, we therefore find no merit to this

argument.

       {¶ 36} Martinez also argues that the original indictment constituted double

jeopardy.   The Fifth Amendment’s Double Jeopardy Clause precludes successive

prosecutions and successive punishments for the same criminal offense.      United States v.

Dixon (1993), 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556, citing N. Carolina v.

Pearce (1969) 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. Regardless of the lack of

successive prosecutions in the instant case, “[i]f proof of an additional element is required

to sustain a conviction for one of the offenses, then the accused may be prosecuted for

both offenses without violating the protection [recognized] by the Double Jeopardy

Clause.” State v. Beard (June 5, 1991), 12th Dist. No. CA98-02-019, at ¶13, citing State

v. Tolbert (1991), 60 Ohio St.3d 89, 91, 573 N.E.2d 617.

       {¶ 37} Martinez’s indictment charged him with two counts of aggravated vehicular

assault under two different statutes, R.C. 2903.08(A)(1)(a) and 2903.08(A)(2)(b). Thus,

two separate charges with different elements in regard to the same act do not constitute

double jeopardy.
                                           12

      {¶ 38} Accordingly, this assignment of error is overruled.

      Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

PATRICIA ANN BLACKMON, P.J., CONCURS;
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY
