[Cite as State v. Martinez, 2012-Ohio-3750.]




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



STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-11-32

        v.

JUAN MARTINEZ, JR.,                                       OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 13-11-21

        v.

JUAN MARTINEZ, JR.,                                       OPINION

        DEFENDANT-APPELLANT.



                 Appeals from Seneca County Common Pleas Court
                            Trial Court No. 03-CR-0116

                                     Judgments Affirmed

                            Date of Decision:   August 20, 2012
Case Nos. 13-11-32 and 13-11-21


APPEARANCES:

      Deborah Kovac Rump for Appellant

      Ken Egbert, Jr. for Appellee



PRESTON, J.

      {¶1} Defendant-appellant, Juan M. Martinez, Jr., appeals the Seneca

County Court of Common Pleas’ sentence of 15 years imprisonment following his

conviction by jury trial on two counts of possession of marijuana and one count of

possession of cocaine. Martinez contends that the trial court abused its discretion

by imposing a 15-year sentence, violated his right to a timely resentencing, and

abused its discretion by not resentencing him after the original trial judge’s

voluntary recusal. For the reasons that follow, we affirm.

      {¶2} On April 10, 2003, a Seneca County grand jury indicted Martinez on

one count of possession of cocaine in violation of R.C. 2925.11(A)(C)(4)(d), a

felony of the second degree (count one), one count of possession of marijuana in

violation of R.C. 2925.11(A)(C)(3)(c), a felony of the third degree (count two),

and one count of possession of marijuana in violation of R.C. 2925.11(A)(C)(3)(f),

a felony of the second degree (count three). (Doc. No. 1). Count three contained

three specifications seeking forfeiture of a freezer, a .22 caliber firearm, and

$2,542 that Martinez allegedly used in the commission of the offense. (Id.).


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Case Nos. 13-11-32 and 13-11-21


       {¶3} The trial court held an arraignment hearing on May 23, 2003. (Doc.

No. 13). Martinez entered a plea of not guilty to the charges. (Id.).

       {¶4} The trial court held a jury trial from August 16 through August 18,

2004. (Doc. No. 146). The jury found Martinez guilty of count one, possession of

cocaine, and further found that Martinez possessed cocaine exceeding 100 grams

but less than 500 grams; guilty of count two, possession of marijuana, and further

found that the amount of marijuana exceeded 5,000 grams but was less than

20,000 grams; and guilty of count three, possession of marijuana, and further

found that the amount of marijuana exceeded 20,000 grams. (Id.).

       {¶5} On October 18, 2004, the trial court held a sentencing hearing. (Doc.

No. 158).    The trial court sentenced Martinez to a mandatory seven years

imprisonment on count one, two years imprisonment on count two, and a

mandatory eight years imprisonment on count three. (Id.). The trial court ordered

Martinez to serve counts two and three concurrent to each other but consecutive to

count one, for a total of 15 years imprisonment. (Id.).

       {¶6} On November 12, 2004, Martinez filed a notice of appeal. (Doc. No.

166). On April 24, 2006, this Court affirmed Martinez’s convictions but found

Martinez’s sentence was void because it was based upon unconstitutional statutes

following State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. State v. Martinez, 3d




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Dist. No. 13-04-49, 2006-Ohio-2002.            This Court remanded the case for

resentencing in accordance with Foster. Id. at ¶ 21-22.

       {¶7} On May 2, 2006, the trial court issued a warrant ordering the Seneca

County Sheriff to transport Martinez to the trial court for a resentencing hearing.

(Doc. No. 179). On May 8, 2006 the Seneca County Sheriff returned the warrant

to the trial court because he had been unable to serve Martinez. (Doc. No. 181).

       {¶8} On May 24, 2011, the trial court held a resentencing hearing where it

imposed the same sentence of 15 years imprisonment. (Doc. No. 187). During the

hearing, Martinez made an oral motion to dismiss the case for lack of subject

matter jurisdiction. (May 24, 2011 Tr. at 2-3).

       {¶9} On May 26, 2011, Martinez filed a motion to dismiss the case because

the trial court lacked jurisdiction. (Doc. No. 188). The trial court set a hearing on

the motion for July 12, 2011. (Doc. No. 194).

       {¶10} On June 17, 2011, Martinez filed a notice of appeal on the trial

court’s judgment entry from the resentencing hearing. (Doc. No. 198).

       {¶11} On June 21, 2011, the State filed its brief in response to Martinez’s

motion to dismiss. (Doc. No. 202). On July 5, 2011, the State also filed a motion

to dismiss Martinez’s motion because the trial court no longer had jurisdiction due

to Martinez’s appeal. (Doc. No. 205).




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Case Nos. 13-11-32 and 13-11-21


      {¶12} On July 8, 2011, the trial court judge, Judge Kelbley, determined that

he had a potential conflict in presiding over the case and voluntarily recused

himself from further proceedings. (Doc. No. 206). On August 10, 2011, the

Supreme Court of Ohio assigned Judge Markus to preside over the case. (Doc.

No. 212).

      {¶13} On August 16, 2011, the State withdrew its motion to dismiss

Martinez’s motion because this Court stayed the appeal and remanded the case to

the trial court to consider Martinez’s motion. (Doc. No. 214).

      {¶14} After several continuances, Judge Markus held a hearing on

Martinez’s motion to dismiss on October 6, 2011. (Doc. No. 224). Judge Markus

denied Martinez’s motion to dismiss on October 11, 2011. (Id.).

      {¶15} On November 8, 2011, Martinez filed a notice of appeal. (Doc. No.

226). This Court consolidated the two appeals for the purposes of our review.

(Appellate Case No. 13-11-32, Doc. No. 6).            Martinez now raises three

assignments of error.

                           Assignment of Error No. I

      The trial court abused its discretion with the sentence that it
      imposed. Further, the sentence imposed constituted cruel and
      unusual punishment in violation of the Eighth Amendment of
      the U.S. Constitution.

      {¶16} In his first assignment of error, Martinez argues the trial court abused

its discretion by imposing a sentence of 15 years imprisonment.           Martinez

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Case Nos. 13-11-32 and 13-11-21


contends that he did not have any prior criminal convictions, did not have any

pending charges, was a non-violent offender, and has presented considerable

evidence that he is rehabilitated. Martinez argues that in light of these factors, the

trial court erred in sentencing him to 15 years imprisonment.

       {¶17} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record; the sentencing statutes’ procedure was not followed or

there was not a sufficient basis for the imposition of a prison term; or that the

sentence is contrary to law. State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767,

¶ 23 (the clear and convincing evidence standard of review set forth under R.C.

2953.08(G)(2) remains viable with respect to those cases appealed under the

applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes,

12th Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v. Tyson, 3d Dist. Nos.

1-04-38; 1-04-39, 2005-Ohio-1082, ¶ 19, citing R.C. 2953.08(G). 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.” Cross v.

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus; State v. Boshko,

139 Ohio App.3d 827, 835 (12th Dist.2000). An appellate court should not,

however, substitute its judgment for that of the trial court because the trial court is

‘“clearly in the better position to judge the defendant’s likelihood of recidivism


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Case Nos. 13-11-32 and 13-11-21


and to ascertain the effect of the crimes on the victims.”’ State v. Watkins, 3d Dist.

No. 2-04-08, 2004-Ohio-4809, ¶ 16, quoting State v. Jones, 93 Ohio St.3d 391,

400 (2001).1

        {¶18} The Supreme Court of Ohio determined that the sentencing statute

requiring judicial fact-finding prior to imposing consecutive sentences infringed

on a defendant’s Sixth Amendment right to a trial by jury in State v. Foster, 2006-

Ohio-856, paragraph one of the syllabus. Following that decision, the United

States Supreme Court decided that a state could require judicial findings of fact to

impose consecutive rather than concurrent sentences without infringing on a

defendant’s Sixth Amendment rights. Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711

(2009).      The Supreme Court of Ohio subsequently determined that Foster

remained valid after Ice and the judiciary was not required to make findings of fact

prior to imposing maximum or consecutive sentences in State v. Hodge, 128 Ohio

St.3d 1, 2010-Ohio-6320. However, the Supreme Court of Ohio decided the trial

court was still required to consider the sentencing purposes in R.C. 2929.11 and

the guidelines contained in R.C. 2929.12. Foster at ¶ 36-42.




1
  This Court notes that the Ohio Supreme Court has released a plurality opinion on the issue of whether a
clear and convincing standard or an abuse of discretion standard is proper for reviewing felony sentences
under R.C. 2953.08(G). State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. Although this Court used our
precedential clear and convincing standard, affirmed and adopted by Kalish’s three dissenting Justices, we
would have concluded that Martinez’s sentence was proper under the Kalish plurality’s two-step approach
as well.

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Case Nos. 13-11-32 and 13-11-21


       {¶19} According to R.C. 2929.11, the purposes of felony sentencing are “to

protect the public from future crime by the offender and others and to punish the

offender.”   Consequently, “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.” R.C. 2929.11(A). The sentence the court imposes must be

reasonably calculated to achieve these purposes, be consistent with the severity of

the offense while not demeaning the seriousness of the conduct and its impact on

the victim, and be similar to other sentences imposed for similar offenses. R.C.

2929.11(B). Furthermore, R.C. 2929.12 provides that the sentencing court must

consider several factors as an indication that the defendant’s conduct is more

serious than conduct typical of the offense, including whether “[t]he offender

committed the offense for hire or as a part of an organized criminal activity.”

       {¶20} The evidence presented at trial and prior to sentencing demonstrates

that Martinez’s conduct was more serious than conduct normally constituting the

offense. According to the presentence investigation, Martinez has a history of

drug and alcohol abuse, including the use of alcohol, marijuana, LSD, ecstasy, and

cocaine. (PSI). During the presentence investigation, Martinez’s girlfriend, Alice

Torres, informed officers that she assisted Martinez in possessing cocaine and

marijuana in her home because he threatened and beat her when she attempted to


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Case Nos. 13-11-32 and 13-11-21


leave the home with their children. (PSI). Mark Apple, a special agent with the

Bureau of Criminal Investigations, testified that the marijuana found in the house

was worth around $50,000. (Aug. 16, 2004 Tr. at 262-263). During the search of

the house, officers also discovered Martinez’s semi-automatic firearm. (Aug. 17,

2004 Tr. at 312-313). Furthermore, on the day of Martinez’s arrest, David Ysassi,

Martinez’s cousin, purchased 20 pounds of marijuana from Martinez. (Aug. 16,

2004 Tr. at 208-209).      Ysassi testified that he obtained the marijuana from

Martinez’s house and that he would pay Martinez for the marijuana and then keep

whatever he charged beyond that amount. (Id.). Ysassi was planning on making

$2,000 for selling the 20 pounds of marijuana he obtained from Martinez. (Id.).

Ysassi was arrested and convicted of trafficking when he sold the marijuana to a

confidential informant. (Id.). Michael Ackley, a Wood County Deputy Sheriff,

testified that the purpose of the investigation that led to Martinez was to find the

source of the drugs, “as high as we can go within the organization.” (Aug. 16,

2004 Tr. at 195). In light of the large amount of cocaine and marijuana Martinez

possessed, his threats and violence towards his girlfriend, and his criminal activity

with Ysassi, we cannot find that Martinez has demonstrated by clear and

convincing evidence that his 15 year sentence is unsupported by the record.

       {¶21} Martinez’s first assignment of error is, therefore, overruled.




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Case Nos. 13-11-32 and 13-11-21


                            Assignment of Error No. II

       The trial court abused its discretion when it denied Martinez’
       motion to dismiss. By waiting more than 5 years, Martinez’
       rights to a timely resentencing were violated.

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

abused its discretion when it denied his motion to dismiss because the trial court

no longer had subject matter jurisdiction due to the delay in his resentencing.

Martinez contends that the five-year delay between his first appeal and his

resentencing violated Crim.R. 32 and his Sixth Amendment right to a speedy trial.

Martinez argues that since the trial court did not have subject matter jurisdiction to

resentence him, this Court should vacate the remainder of his prison sentence.

       {¶23} A trial court’s decision granting or denying a motion to dismiss for

lack of subject-matter jurisdiction is reviewed de novo. State ex rel. Bush v.

Spurlock, 42 Ohio St.3d 77, 80 (1989). Crim.R. 32(A) states that a sentence “shall

be imposed without unnecessary delay.” However, Crim.R. 32(A) does not apply

to resentencing cases. State v. Feagan, 5th Dist. No. 10CA46, 2011-Ohio-2025, ¶

16; State v. King, 8th Dist. No. 95233, 2011-Ohio-1079, ¶ 7; State v. Jones, 9th

Dist. No. 25032, 2010-Ohio-4455, ¶ 9; State v. Easley, 10th Dist. No. 10AP-352,

2011-Ohio-2867, ¶ 10. Thus, the only question before this Court is whether the

delay violated Martinez’s constitutional rights.




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Case Nos. 13-11-32 and 13-11-21


      {¶24} When reviewing a delay in resentencing, the appellate court must

consider whether the delay prejudiced the defendant. State v. McQueen, 8th Dist.

No. 91370, 2009-Ohio-1085, ¶ 5. Whether the defendant suffered prejudice as a

result of the delay depends on the facts of the case. See id. For example, the

Eighth District found prejudice when the defendant was released on bond during

the delay and was then ordered to return to prison to serve an additional two

months after the length of his sentence had lapsed. Euclid v. Brackis, 135 Ohio

App.3d 729 (8th Dist.1999). However, the Ninth District did not find prejudice

where the defendant was incarcerated during the length of the delay and would not

have been eligible for release during that time period. State v. Huber, 9th Dist.

No. 85082, 2005-Ohio-2625.

      {¶25} In the present case, this Court previously affirmed Martinez’s

convictions. Martinez, 2006-Ohio-2002. Martinez was convicted of possession in

violation of R.C. 2925.11(A)(C)(3)(f), which requires the trial court to “impose as

mandatory the maximum prison term for a felony of the second degree.” (Doc.

No. 146). As a result, the trial court was required to impose a mandatory sentence

of eight years imprisonment for that offense. R.C. 2929.14(A)(2). A five-year

delay elapsed between this Court’s remand and Martinez’s resentencing. (Doc.

No. 187). Although this Court agrees with Martinez that the delay was a serious

administrative lapse, we cannot find prejudice to Martinez given the facts of this


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Case Nos. 13-11-32 and 13-11-21


case. The trial court was required to resentence Martinez to a minimum of eight

years imprisonment based on his conviction, thus Martinez could not have been

released during the five-year delay. Consequently, this Court cannot find that the

trial court abused its discretion by denying Martinez’s motion to dismiss when

Martinez did not suffer prejudice.

       {¶26} Martinez’s second assignment of error is, therefore, overruled.

                          Assignment of Error No. III

       The trial court abused its discretion for not resentencing
       Martinez after the original trial judge recused himself for
       unspecified reasons. The visiting judge, at a minimum, should
       have determined the basis for the conflict of interest and
       determine whether it impacted the May 24, 2011 resentencing.

       {¶27} In his third assignment of error, Martinez argues the trial court erred

by not resentencing him after Judge Kelbley voluntarily recused himself.

Martinez contends that Judge Kelbley did not disclose the conflict that required his

recusal, and, as a result, the conflict may have affected his resentencing. Martinez

argues that even if the visiting judge, Judge Markus, chose not to resentence him,

Judge Markus should have determined the basis for Judge Kelbley’s recusal.

       {¶28} “[A] judge’s decision to voluntarily recuse himself is a matter of

judicial discretion.” State ex rel. Gomez v. Nau, 7th Dist. No. 08 NO 355, 2008-

Ohio-5685, ¶ 19, quoting State ex rel. Brady v. Russo, 8th Dist. No. 89552, 2007-

Ohio-3277, ¶ 22. Martinez does not offer any authority for his argument that


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Case Nos. 13-11-32 and 13-11-21


Judge Markus should have resentenced him after Judge Kelbley’s recusal, or that

Judge Markus should have determined the reason for the recusal. Furthermore,

Martinez did not raise any issues of bias or concerns of a conflict at the

resentencing hearing, when Judge Kelbley resentenced Martinez to the same term

of imprisonment originally imposed. This Court declines to inquire into matters of

judicial discretion regarding voluntary recusal or to require a visiting judge to

conduct such an inquiry. The determination of whether a common pleas judge is

biased is within the exclusive jurisdiction of the Supreme Court of Ohio. State v.

Holdcroft, 3d Dist. No. 16-10-04, 2010-Ohio-6262, ¶ 25.

       {¶29} Martinez’s third assignment of error is, therefore, overruled.

       {¶30} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

ROGERS, J., concurs.

/jlr



WILLAMOWSKI, J., Concurring Separately.

       {¶31} I concur fully with the judgment of the majority; however write

separately to emphasize the appropriate standards of review. The standard of

review for sentences was set forth in the plurality opinion of Kalish, supra. In


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Case Nos. 13-11-32 and 13-11-21


Kalish, four panel members noted that R.C. 2953.08(G) requires that appellants

must meet a clearly and convincingly contrary to law standard of review when

reviewing a sentence.2 For example, if the sentencing court imposed consecutive

sentences, the standard of review would be whether appellant has shown that the

sentence was clearly and convincingly contrary to law. However, if the appeal is

based upon alleged improper application of the factors in R.C. 2929.12, four panel

members in Kalish would require review using an abuse of discretion standard as

specifically set forth in R.C 2929.12.3

        {¶32} In his assignment of error, Martinez alleges that the trial court erred

by failing to properly consider and apply the felony sentencing guidelines set forth

in R.C. 2929.11 and 2929.12. Martinez’s appeal of his felony sentence challenges

both the consideration of the factors in R.C. 2929.11 and 2929.12 and the

application of the factors in R.C. 2929.12. As stated by the majority, Martinez has

not shown by clear and convincing evidence that the trial court failed to consider

the statutory factors. To the contrary, the evidence supported the ruling of the trial

court that the crime was more serious than the average possession of cocaine and

marijuana case due to the amounts of drugs found.                        Thus, the trial court’s

application of the factors was supported by some competent, credible evidence and


2
    Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment, all
reached this conclusion.
3
   Justices O’Connor, Moyer, O’Donnell, and Judge Willamowski, sitting by assignment, concurred in this
position, although the first three would use both standards of review in all cases.

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Case Nos. 13-11-32 and 13-11-21


its determinations were not an abuse of discretion. For this reason, I concur in the

judgment of the majority.




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