[Cite as State v. Ortiz, 2019-Ohio-822.]


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

STATE OF OHIO                                         C.A. No.       18CA011253

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
ADAM ORTIZ                                            COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   14CR089131

                                  DECISION AND JOURNAL ENTRY

Dated: March 11, 2019



        TEODOSIO, Judge.

        {¶1}     Defendant-Appellant, Adam Ortiz, appeals from his convictions in the Lorain

County Court of Common Pleas. This Court reverses.

                                                 I.

        {¶2}     In 2014, Mr. Ortiz was indicted on two counts of tampering with evidence, four

counts of obstructing justice, one count of possessing criminal tools, one count of abusing a

corpse, one firearm specification, and one forfeiture specification. The obstruction counts, in

particular, were charged as follows: (1) a third-degree felony in violation of R.C. 2921.32(A)(4);

(2) a third-degree felony in violation of R.C. 2921.32(A)(5); (3) a fifth-degree felony in violation

of R.C. 2921.32(A)(4); and (4) a fifth-degree felony in violation of R.C. 2921.32(A)(5). Mr.

Ortiz ultimately signed a written plea agreement, and the parties jointly recommended a sentence

to the trial court. The written plea agreement provided for a guilty plea on all four counts of

obstructing justice. At the plea hearing, however, the court only accepted Mr. Ortiz’ plea on two
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counts of obstructing justice. Neither the court, nor the parties addressed the remaining two

counts. The court then imposed the agreed upon sentence and ordered Mr. Ortiz to successfully

complete CBCF and five years of community control. His sentence further provided that, if he

violated its terms, he would be subject to nine years in prison. The court’s sentencing entry did

not address two counts of obstructing justice.

       {¶3}    Mr. Ortiz was unsuccessfully terminated from his CBCF program and, as a result,

was arrested for violating the conditions of his community control. The trial court held a hearing

and found him guilty of the community control violation. Due to the de minimus nature of the

violation, however, the court declined to impose a prison term. Instead, it ordered Mr. Ortiz to

serve thirty days in jail before commencing his five-year term of community control. The court

cautioned Mr. Ortiz that any further violation would result in a prison sentence.

       {¶4}    Mr. Ortiz was later charged with drug trafficking and came before the court on a

second community control violation. Following his hearing, the court sentenced him to prison.

In its sentencing entry, the court indicated that Mr. Ortiz had pleaded guilty to eight counts,

including four counts of obstructing justice. The court indicated that it was not imposing a

sentence on two of the counts of obstructing justice because those counts merged with the other

two counts of obstructing justice. Consistent with the terms of the agreed upon sentence, the trial

court sentenced Mr. Ortiz to nine years in prison.

       {¶5}    Mr. Ortiz now appeals from his convictions and raises two assignments of error.

Upon review, we consolidate his assignments of error.

                                                 II.

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED TO THE DETRIMENT OF [] ORTIZ BY
       SENTENCING HIM TO CONSECUTIVE SENTENCES, WHICH WAS
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       CONTRARY TO R.C. § 2941.25 SINCE ORTIZ’S CONDUCT: (1) WAS OF
       SIMILAR IMPORT; (2) WAS COMMITTED AS A WHOLE DURING ONE
       SINGLE PERIOD; AND, (3) HAD ONE ANIMUS. THE AGREEMENT
       REACHED BY ORTIZ, THE COURT AND THE PARTIES WAS CONTRARY
       TO LAW AND THEREFORE VOID AND UNENFORCEABLE.

                              ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ERRED TO THE DETRIMENT OF ORTIZ WHEN THE
       COURT SENTENCED HIM TO NINE YEARS IN PRISON, WHICH IS
       CONTRARY TO R.C. § 2929.11 AS SHOWN BY CLEAR AND
       CONVINCING EVIDENCE.

       {¶6}    In his assignments of error, Mr. Ortiz asserts that his nine-year prison sentence is

contrary to law for a variety of reasons. Because this matter must be reversed on other grounds,

we cannot address the merits of his arguments.

       {¶7}    As previously noted, Mr. Ortiz was indicted on four counts of obstructing justice,

but only pleaded guilty to two counts. At his plea hearing, the court discussed and set forth the

penalties on two counts of obstructing justice,1 one of which it described as “a felony of the third

degree” and one of which it described as “a felony of the fifth degree.” Neither the court, nor the

parties discussed the conduct underlying those offenses, the elements of those offenses, or the

specific statutory subsections from which those offenses arose. Moreover, neither the court, nor

the parties called attention to the fact that Mr. Ortiz had been charged with four counts of

obstructing justice, not two. The sentencing entry that the court issued upon the plea provided

that Mr. Ortiz had pleaded guilty to “Obstructing Justice, a violation of R.C. 2921.32(A)(4), a

Third Degree Felony” and “Obstructing Justice, a violation of R.C. 2921.32(A)(5), a Fifth

Degree Felony.” The entry did not address the two remaining counts of obstructing justice.




1
  The court consistently referred to the counts as counts of obstructing official business, rather
than counts of obstructing justice. Mr. Ortiz, however, was never charged with obstructing
official business under R.C. 2921.31.
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       {¶8}       Upon Mr. Ortiz’ second community control violation, the court conducted another

hearing. At the hearing, the parties argued about the appropriate sentence to impose upon Mr.

Ortiz. It was the State’s position that the court ought to impose the agreed upon sentence of nine

years in prison. It was Mr. Ortiz’ position that a nine-year sentence would be contrary to law

because all of his offenses were subject to merger. Throughout the hearing, both the parties and

the court only referred to the six counts to which Mr. Ortiz had pleaded guilty. There was no

discussion of the two additional, indicted counts for obstructing justice. Moreover, the State

confirmed that merger was never discussed at or before the original sentencing hearing. After

listening to both parties, the court found that none of Mr. Ortiz’ six counts were subject to

merger. It then announced that it would sentence Mr. Ortiz to a total of nine years in prison on

his six counts.

       {¶9}       When the trial court issued its sentencing entry on Mr. Ortiz’ second community

control violation, it included in the entry all four indicted counts of obstructing justice. The court

indicated that Mr. Ortiz had been found guilty of all four counts as a result of his guilty plea. It

then sentenced him on two of those counts and ordered the other two counts to merge as allied

offenses of similar import. The court sentenced Mr. Ortiz to a total of nine years in prison.

       {¶10} Upon an initial review of the record, it became apparent to this Court that the trial

court had found Mr. Ortiz guilty of two counts of obstructing justice in the absence of a guilty

plea or guilty verdict on those counts. We, therefore, asked the parties to brief that issue. See

State v. Ortiz, 9th Dist. Lorain No. 18CA011253 (Jan. 17, 2019). Both parties complied, and

thus, have been afforded the opportunity to brief an issue that neither party initially raised on

appeal. See State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, ¶ 21.
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       {¶11} A conviction may arise in one of four manners: “[a] guilty plea, a no-contest plea

upon which the court has made a finding of guilt, a finding of guilt based upon a bench trial, or a

guilty verdict resulting from a jury trial * * *.” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-

5204, ¶ 12. At its core, a conviction represents “the legal ascertainment of guilt.” State v.

Henderson, 58 Ohio St.2d 171, 174 (1979). Thus, whatever the manner of conviction, it is

axiomatic that a defendant’s guilt must be “legally adjudicated [] before an appropriate penalty

or treatment is determined.” Id. at 178. An accused has a constitutionally-protected “right to

have the [S]tate prove guilt beyond a reasonable doubt * * *,” State v. Veney, 120 Ohio St.3d

176, 2008-Ohio-5200, ¶ 21, and “to have [a] jury, rather than the judge, reach the requisite

finding of ‘guilty.’” Sullivan v. Louisiana, 508 U.S. 275, 277 (1993). Absent a valid waiver of

those rights (e.g., a plea or a waiver of one’s right to a jury trial), a complete denial of those

rights “unquestionably qualifies as ‘structural error.’” Id. at 281-282.

       {¶12} The record reflects that, at the time of his second community control violation, the

trial court found Mr. Ortiz guilty of two counts of obstructing justice in the absence of a “legal

ascertainment of [his] guilt” on those counts. Henderson at 174. The court never discussed

those counts at the original plea hearing, so Mr. Ortiz never pleaded guilty to those counts.

Likewise, no jury or bench trial ever occurred in this matter. By finding Mr. Ortiz guilty on

those two counts in the absence of a plea or a trial at which the State proved his guilt beyond a

reasonable doubt, the court denied Mr. Ortiz his constitutionally-protected rights and committed

a structural error. Sullivan at 281-282. Pursuant to that determination, Mr. Ortiz’ sentence is

vacated, and the matter is remanded for further proceedings consistent with the foregoing

opinion.
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                                                III.

       {¶13} This Court cannot address the merits of Mr. Ortiz’ assignments of error. For the

reasons outlined above, the judgment of the Lorain County Court of Common Pleas is reversed,

and the cause is remanded for further proceedings consistent with the foregoing opinion.

                                                                             Judgment reversed,
                                                                            and cause remanded.




       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 Lorain, 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 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 Appellee.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT



SCHAFER, P. J.
CALLAHAN, J.
CONCUR.
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APPEARANCES:

KENNETH N. ORTNER, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.
