[Cite as State v. Martin,
2024-Ohio-2633.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 113177
v. :
CARLOS MARTIN, SR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: July 11, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-670954-A
Appearances:
Edward F. Borokowski, Jr., for appellant.
LISA B. FORBES, P.J.:
Defendant-appellant, Carlos Martin (“Martin”), appeals his sentence
following his guilty plea. Martin’s assigned appellate counsel filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), and now seeks leave to withdraw as
appellate counsel. After thoroughly reviewing the record, we grant counsel’s motion
to withdraw and dismiss the appeal.
I. Facts and Procedural History
In Cuyahoga C.P. CR-22-670954-A, on August 1, 2022, a grand jury
named Martin in an 11-count indictment charging him with one count of having a
weapons while under disability, four counts of drug trafficking, three counts of drug
possession, two counts of receiving stolen property, and one count of possessing
criminal tools. All the trafficking and drug possession counts had one-year firearm
and schoolyard specifications.
On July 31, 2023, Martin entered into a plea agreement with the
State. Martin pled guilty to one count of having weapons while under disability, a
third-degree felony; one count of trafficking, a second-degree felony; two counts of
trafficking, third-degree felonies, both of which had schoolyard specifications; and,
two counts of receiving stolen property, fourth-degree felonies. All other counts
were dismissed.
At the plea hearing, the trial court engaged in the Crim.R. 11 colloquy
with Martin. The trial court advised Martin of his right to a bench or jury trial, his
right to confront witnesses against him, the right to compulsory process, the right to
have the prosecution prove him guilty beyond a reasonable doubt, and the right
against self-incrimination. The trial court informed Martin of the maximum
penalties for each count, including an explanation of the Regan Tokes sentencing
range and the mandatory postrelease control. Throughout the hearing, every time
the court asked Martin if had any questions he replied, “No,” and indicated that he
understood what the court was saying to him. The court then found Martin’s plea
to be made knowingly, intelligently, and voluntarily, and accepted his guilty plea.
On August 30, 2023, Martin was sentenced. As noted, the court
stated it considered the oral statements made by Martin and the State, and looked
at the purposes and principles of sentencing pursuant to R.C. 2929.11, the
seriousness and recidivism factors relevant to the offense and offender, pursuant to
R.C. 2929.12, and the need for deterrence, incapacitation, rehabilitation, and
restitution. The court found Martin was not amenable to community-control
sanctions. The court found after considering the factors in R.C. 2929.12 that a prison
term is commensurate with the seriousness of Martin’s conduct, his impact on the
victims, and that it is reasonably necessary to deter the offender in order to protect
the public from future crimes.
After considering the foregoing, the trial court then sentenced Martin
as follows: Count 1, having weapons while under disability, two years in prison;
Count 2, trafficking, five years in prison, with a possible indefinite term up to seven
and a half years; Count 4 trafficking, two years; Count 6, trafficking, two years;
Count 9, receiving stolen property, one year; and Count 10, receiving stolen
property, one year. The court ordered the prison terms to be served concurrently
for a total of five to seven and a half years. The court emphasized the mandatory-
prison time of five years and imposed costs, but waived fines.
Counsel appointed to represent Martin in the instant appeal filed a
brief pursuant to Anders, 386 U.S. 738, and requested leave to withdraw as counsel.
Anders held that where, after a conscientious examination of the case, appellate
counsel is unable to find any meritorious issues for review, counsel may inform the
court and request permission to withdraw from the case.
Id. at 744; see also State
v. Plozay,
2023-Ohio-4128, ¶ 2 (8th Dist.). In addition, the request must be
accompanied by a brief referring to anything in the record that might
arguably support the appeal. A copy of counsel’s brief should be
furnished the indigent and time allowed him to raise any points that he
chooses; the court — not counsel — then proceeds, after a full
examination of all the proceedings, to decide whether the case is wholly
frivolous. If it so finds it may grant counsel’s request to withdraw and
dismiss the appeal.
Id. If this court determines that one or more legal points have merit, the defendant
will be afforded counsel to argue the appeal.
Id.
II. Discussion of Potential Assignments of Error
Martin’s counsel identifies three potential assignments of error, but
explains the errors are not prejudicial or meritorious upon review. The three
potential issues for appeal are:
Potential Issue 1: Whether the trial court complied with Crim.R. 11
Potential Issue 2: Whether the sentence imposed is contrary to law
Potential Issue 3: Whether the indefinite sentence violated Appellant’s
rights
After a thorough independent review of the record, we grant counsel’s motion to
withdraw and dismiss this appeal.
A. Potential Issue 1 — Crim.R. 11 Compliance
Martin’s first potential assignment of error alleges that the trial court
failed to comply with Crim.R. 11, such that Martin’s plea was not knowingly,
intelligently, and voluntarily entered. We disagree.
A defendant’s decision to enter a plea must be knowing, intelligent,
and voluntary because a no contest or guilty plea involves a waiver of constitutional
rights. State v. Dangler, 2020-Ohio-2765 ¶ 10, citing Parke v. Raley,
506 U.S. 20,
28-29 (1992); State v. Clark,
2008-Ohio-3748, ¶ 25. Enforcement of the plea is
unconstitutional where the plea was not made knowingly, intelligently, and
voluntarily.
Id., citing
id. In considering whether a criminal defendant knowingly,
intelligently, and voluntarily entered a guilty plea, we first review the record to
determine whether the trial court complied with Crim.R. 11(C). State v. Davner,
2017-Ohio-8862, ¶ 41 (8th Dist.), citing State v. Kelley,
57 Ohio St.3d 127, 128
(1991).
Crim.R. 11(C) sets forth certain constitutional and procedural
requirements, which a trial court must comply with prior to accepting a guilty plea.
Id. Under Crim.R. 11(C)(2), the trial court shall not accept a guilty plea in a felony
case without personally addressing the defendant and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum
penalty involved, and, if applicable, that the defendant is not eligible
for probation or for the imposition of community control sanctions at
the sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty …, and that the court, upon
acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury
trial, to confront witnesses against him or her, to have compulsory
process for obtaining witnesses in the defendant’s favor, and to require
the state to prove the defendant’s guilt beyond a reasonable doubt at a
trial at which the defendant cannot be compelled to testify against
himself or herself.
The Ohio Supreme Court recently summarized appellate review of
compliance with Crim.R. 11(C) as follows:
Properly understood, the questions to be answered are simply: (1) has
the trial court complied with the relevant provision of the rule? (2) if
the court has not complied fully with the rule, is the purported failure
of a type that excuses a defendant from the burden of demonstrating
prejudice? and (3) if a showing of prejudice is required, has the
defendant met that burden?
Dangler at ¶ 17. “If the plea was not made knowingly, intelligently, and voluntarily,
enforcement of that plea is unconstitutional.” Id. at ¶ 10.
The Dangler Court further explained that no demonstration of
prejudice is required in two limited circumstances. First, “[w]hen a trial court fails
to explain the constitutional rights that a defendant waives by pleading guilty or no
contest, we presume that the plea was entered involuntarily and unknowingly, and
no showing of prejudice is required.” Dangler, 2020-Ohio-2765, at ¶ 14. Second, “a
trial court’s complete failure to comply with a portion of Crim.R. 11(C) eliminates
the defendant’s burden to show prejudice.” Id. at ¶ 15; see also State v. Shields,
2023-Ohio-1971, ¶ 6-7 (8th Dist.).
The purpose of Crim.R. 11(C)(2) is to convey to the defendant certain
information so that he can make a voluntary and intelligent decision whether to
plead guilty. State v. Albright, 2019-Ohio-1998 (8th Dist.), citing State v. Woodall,
2016-Ohio-294, ¶ 12 (8th Dist.). Whether the trial court accepted a plea in
compliance with Crim.R. 11(C)(2) is subject to de novo review, based on the totality
of the circumstances. See, e.g., State v. Jackson,
2014-Ohio-706, ¶ 6 (8th Dist.);
State v. Sims,
2019-Ohio-4975, ¶ 72 (8th Dist.).
Our review of the record shows the trial court complied with
Crim.R. 11, so there is no need to conduct a Dangler prejudice analysis. Dangler at
¶ 17.
As discussed above, at the plea hearing, the trial court advised Martin
as to his right to a bench or jury trial, his right to confront witnesses against him, the
right to compulsory process, the right to have the prosecution prove him guilty
beyond a reasonable doubt, and the right against self-incrimination. The trial court
informed Martin of the maximum penalties of each count, including an explanation
of the Regan Tokes sentencing range and the mandatory postrelease control.
Throughout the hearing every time the court asked Martin if he had any questions
he replied, “No.” Martin repeatedly indicated that he understood what the court was
saying to him. After the aforementioned inquiries, and advisements, Martin entered
his guilty plea. Under these circumstances we find that the court complied with
Crim.R. 11 and that Martin made a knowing, intelligent, and voluntary decision to
withdraw his previous not guilty plea.
As a failure to comply with Crim.R. 11 has not been demonstrated,
Martin’s first potential assignment of error lacks merit.
B. Potential Issue Two — Sentence is Contrary to Law
Martin’s second potential assignment of error alleges that his
sentence is contrary to law. We disagree.
A sentence is contrary to law if (1) the sentence falls outside the
statutory range for the particular degree of offense, or (2) the trial court
failed to consider the purposes and principles of felony sentencing set
forth in R.C. 2929.11 and the sentencing factors set forth in
R.C. 2929.12. … Courts have “full discretion” to impose a sentence
within the applicable statutory range. … Therefore, a sentence
imposed within the statutory range, after considering the sentencing
factors, is “presumptively valid.”
State v. Hinton, 2015-Ohio-4907, ¶ 10 (8th Dist.). This court has held that a trial
court “fulfills its duty under the statutes by indicating that it has considered the
relevant sentencing factors.” Id. at ¶ 11, quoting State v. Smith,
2014-Ohio-1520,
¶ 14 (8th Dist.), citing State v. Saunders,
2013-Ohio-490, ¶ 4 (8th Dist.). The trial
court “need not go through each factor on the record — it is sufficient that the court
acknowledges that it has complied with its statutory duty to consider the factors
without further elaboration.”
Smith at 14, citing State v. Pickens,
2008-Ohio-1407,
¶ 6 (8th Dist.).
Consideration of the appropriate factors set forth in R.C. 2929.11 and
2929.12 can be presumed unless the defendant affirmatively demonstrates to the
contrary. State v. Jones, 2014-Ohio-29, ¶ 13 (8th Dist.); State v. Clayton, 2014-
Ohio-112, ¶ 7 (8th Dist.) (“[W]here a criminal sentence is within the statutory limits,
an appellate court should accord the trial court the presumption that it considered
the statutory mitigating criteria in the absence of an affirmative showing that it
failed to do so”.).
In the instant case, each sentence imposed is within the statutory
frame work and, thereby, is not contrary to law, because the trial court had
discretion to impose any sentence within the applicable ranges. Martin was
convicted of one second-degree felony, three third-degree felonies, and two fourth-
degree felonies. Second-degree felonies are punishable by a prison term of two to
eight years; third-degree felonies by a term of 9 to 36 months; and, fourth-degree
felonies by a term of 6 to 18 months. R.C. 2929.14(A)(2)-(4). Martin was sentenced
to five years for the second-degree felony, 24 months for each third-degree felony,
and 12 months on each fourth-degree felony. As such, Martin’s sentences are not
contrary to law.
A review of the record also demonstrates that the trial court
appropriately considered R.C. 2929.11 and 2929.12. During the sentencing hearing,
the trial court expressly stated the following before sentencing Martin:
After consideration of the record, the oral statements made today,
looking at the purposes and principles of sentencing under Ohio
Revised Code Section 2929.11, the seriousness and recidivism factors
relevant to the offense and offender pursuant to Revised Code Section
2929.12, and the need for deterrence, incapacitation, rehabilitation,
and restitution, the Court finds that a prison term is consistent with the
purposes and principles of sentencing set forth in Section 2929.11 of
the Revised Code, and finds the offender is not amenable to an available
community control sanction.
Furthermore, the Court has considered the factors set forth in Section
2929.12, and finds that a prison term is commensurate with the
seriousness of the Defendant’s conduct, his impact on the victims, and
that it’s reasonably necessary to deter the offender in order to protect
the public from future crimes, and it would not place an unnecessary
burden on government resources.
Accordingly, because the sentences for Martin’s felony charges were
within the permissible statutory range and the trial court considered the required
factors of law, Martin’s sentence is not contrary to law.
Martin’s second potential assignment of error lacks merit.
C. Potential Issue 3 — Regan Tokes Indefinite Sentence
Martin’s last potential assignment of error argues the trial court erred
by violating Martin’s constitutional rights by when it imposed an indefinite prison
term on the second-degree felony pursuant to the Regan Tokes Law, R.C. 2967.271,
which “requires that for certain first- and second-degree felony offenses, a
sentencing court impose on the offender an indefinite sentence consisting of a
minimum and a maximum prison term.” State v. Hacker, 2023-Ohio-2535, ¶ 1. We
disagree.
As this court has previously explained, the Ohio Supreme Court has
rejected the arguments that the Regan Tokes Law violates any constitutional rights.
State v. McLoyd, 2023-Ohio-4306, ¶ 66 (8th Dist.) (“[T]he law does not violate the
separation-of-powers doctrine, the right to jury trial, or the right to due process.”),
citing
Hacker at ¶ 41. As such, Martin’s third potential assignment of error is
without merit and is overruled.
Following our independent review of the entire record, we find that
no meritorious arguments exist and that an appeal would be wholly frivolous.
Appellate counsel’s request to withdraw is granted, and the appeal is dismissed.
Appeal dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
____________________________
LISA B. FORBES, PRESIDING JUDGE
EMANUELLA D. GROVES, J., and
ANITA LASTER MAYS, J., CONCUR
