[Cite as State v. Madden,
2025-Ohio-4891.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
CASE NO. CA2024-10-125
Appellee, :
OPINION AND
vs. : JUDGMENT ENTRY
10/27/2025
TOBY L. MADDEN, :
Appellant. :
:
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2022-12-1675
Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant
Prosecuting Attorney, for appellee.
Christopher J. Pagan, and Repper-Pagan Law Firm, for appellant.
____________
OPINION
SIEBERT, J.
{¶ 1} Toby L. Madden appeals the judgment and sentence imposed by the Butler
County Court of Common Pleas after being found guilty of purposeful murder, felony
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murder, and two counts of felonious assault. On appeal, Madden asserts three
assignments of error. First, Madden argues the trial court erred committed several errors
when imposing a "repeat violent offender" ("RVO") sentence enhancement. Second,
Madden asserts the trial court erred when it denied his request to represent himself at
trial. Finally, Madden claims the trial court erred in permitting his daughter to remain in
the courtroom as a victim's representative when she also testified at trial.
{¶ 2} Upon review, we overrule each assignment of error and conclude: (1) the
trial court properly imposed an RVO sentence enhancement; (2) the trial court correctly
found Madden's request for self-representation to be "involuntary"; and (3) the trial court
committed no error, plain or otherwise, in permitting Madden's daughter to be the victim's
representative, remain in the courtroom, and to testify at trial.
Background
{¶ 3} In December of 2022, Madden was indicted for the murder of his girlfriend,
Jane Smith,1 whose body had 55 stab wounds. Madden pled not guilty to the charges.
The pretrial proceedings were marked by the repeated withdrawal of appointed public
defenders. In March of 2024, the trial court appointed Madden's sixth public defender and
set trial for September 23, 2024.
{¶ 4} At the beginning of September, Madden's attorney filed a motion to
withdraw and to allow Madden to represent himself. During a lengthy hearing, the court
discussed with Madden his right to and the benefits of having an attorney represent him
at trial. Madden stated he understood these rights and benefits while also voicing various
grievances he had with his appointed attorneys and with trying to review discovery.
1. Jane Smith is a pseudonym adopted for this opinion to protect the privacy of the victim and her family.
See State v. Cansler, 2025-Ohio-2558, ¶ 1, fn. 1 (12th Dist.), Supreme Court of Ohio Writing Manual 115
(3rd Ed. 2024).
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{¶ 5} However, when Madden brought up the prospect of a continuance to
evaluate his discovery and consult experts, the trial court made clear no continuance
would be granted as the case had been proceeding for years and had been previously
continued. When Madden stated he wouldn't have enough time to prepare without a
continuance, the trial court asked Madden if he would like to withdraw his motion to
represent himself. Madden replied "Yes, ma'am," and the trial court entered an order on
September 16, 2023, memorializing Madden's withdrawal of his motion.
{¶ 6} The matter proceeded to a jury trial as scheduled on September 23, 2024.
Madden and Smith's daughter attended the trial as a victim's representative. Madden's
counsel raised a non-specific objection to this, but the trial court found there would be
little to no prejudice because she would be the first witness to testify. Nonetheless, trial
court left the door open to further consideration of the matter should issues arise.
Madden's counsel raised no further objection regarding her attendance. She was the first
witness to testify and did not take the stand again during trial.
{¶ 7} The jury returned guilty verdicts on all counts of the indictment. At
sentencing, the State elected to merge the purposeful murder count with the other
offenses for sentencing purposes as they were all allied offenses of similar import. R.C.
2941.25(A). The trial court imposed a sentence of 15 years to life in prison.
{¶ 8} The State also introduced—without any objection from Madden—a 1988
sentencing entry from when Madden was 15 years old to prove his RVO status. That
sentencing entry listed four violent offenses and four corresponding gun specifications,
all within a single case number. Madden's counsel stated to the trial court, "I believe the
RVO specification and any sentence on that would be discretionary as opposed to
mandatory . . ." to which the trial court replied, "[a]ll right. All right." The prosecutor did not
argue otherwise.
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{¶ 9} The trial court found Madden guilty of the RVO specification and sentenced
Madden to a 10 year prison term consecutive to the underlying sentence for murder. The
trial court stated it, "impose[d] the maximum of ten years because this offense was quite
frankly so gruesome . . . [and Madden] is a danger to the public." The trial court did not
state whether it imposed the RVO sentence enhancement in its discretion or as a matter
of law.
{¶ 10} Madden's appeal followed.
First Assignment of Error – RVO Sentence Enhancement
{¶ 11} In his first assignment of error, Madden asserts the trial court erred in
multiple respects when the trial court convicted him of the RVO and imposed an "unlawful"
RVO sentence enhancement of 10 years. We disagree.
Standard of Review
{¶ 12} When reviewing the imposition of a felony sentence, this court must
determine whether the sentence is "contrary to law." R.C. 2953.08(G)(2)(b). If the
sentence is contrary to law, or the trial court failed to make required findings, appellate
courts have the ability to "increase, reduce, or otherwise modify [the] sentence." Id. at
(G)(1).
RVO Specifications and Sentencing
{¶ 13} An RVO, as pertinent to this appeal, is a person being sentenced for
aggravated murder or murder who has previously been convicted of a qualifying violent
felony offense. See R.C. 2929.01(CC)(1), (2). To impose any RVO sentence
enhancement, the underlying indictment must have included an RVO specification. R.C.
2941.149(A). Moreover, the determination of whether a person is an RVO is made by the
sentencing court, not the jury, and the trial court must state its reasoning for imposing an
RVO sentence enhancement. R.C. 2941.149(B). Depending on the circumstances of the
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case, the imposition of an additional prison term (of one to ten years in one-year
increments) to an RVO's sentence may be either discretionary or mandatory. See R.C.
2929.14(B)(2).
Discretionary RVO Sentence
{¶ 14} In summary, Ohio law gives the trial court discretion to impose an additional
prison term upon RVOs when:
(1) the defendant is convicted of an RVO specification;
(2) the defendant is currently convicted of a violent felony of
the first or second degree (including murder) or a violent
felony in the second degree;2
(3) the court imposed the maximum prison term (but not life
imprisonment without parole) or longest minimum term for the
offense;
(4) the court finds that the prison terms imposed are
"inadequate to punish the offender and protect the public from
future crime" after considering and weighing statutory factors
assessing the defendant's likelihood of recidivism (R.C.
2929.12); [ the "Inadequacy Findings"] and
(5) the court finds that the prison terms imposed are
"demeaning to the seriousness of the offense," after
considering the same statutory factors considering and
weighing the seriousness factors of R.C. 2929.12. [the
"Demeaning Findings"].
See R.C. 2929.14(B)(2)(a) (the "Discretionary RVO Enhancement").
Mandatory RVO Sentence
{¶ 15} The trial court must impose an additional prison term upon an RVO when:
(1) the defendant is convicted of an RVO specification;
(2) the defendant was convicted of three qualifying violent
offenses in the preceding 20 years (with offenses committed
2. For a violent felony of the second degree, there must be a finding that the offense involved an attempt
to cause or threaten serious physical harm to a person or actually resulted in that serious physical harm.
R.C. 2929.14(B)(2)(a)(ii).
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simultaneously, constituting only a single offense);3 and
(3) the defendant is currently convicted of a violent felony of
the first or second degree (including murder) or a violent
felony in the second degree.4
See R.C. 2929.14(B)(2)(b) (the "Mandatory RVO Enhancement").
Analysis
{¶ 16} Madden argues three specific issues regarding the trial court's imposition
of a RVO sentence. We will discuss each in turn.
{¶ 17} Issue 1: Madden asserts his RVO sentence was improper because the trial
court did not specify whether it was imposing a Discretionary RVO Enhancement or a
Mandatory RVO Enhancement. We disagree the trial court needed to make such a
specification.
{¶ 18} First, Madden cites no statute or authority requiring the trial court to state
whether its imposition of an RVO sentence enhancement was mandatory or discretionary,
and the relevant statutes cited above do not require such findings. This court will not
rewrite a statute to "say something it does not." State v. Babyak, 2020-Ohio-325, ¶ 13
(12th Dist.). Second, Madden's prior conviction supporting the RVO specification
occurred in 1988. The Mandatory Enhancement Statute requires three qualifying
convictions in the preceding 20 years. R.C. 2929.14(B)(2)(b)(ii). Convictions from 1988—
34 years prior to the murder—could never support a mandatory RVO enhancement.
Third, Madden's trial counsel stated at sentencing that an RVO sentence enhancement
would be discretionary and did not object or ask for clarification when the trial court did
3. Such offenses are "[a]ggravated murder, murder, any felony of the first or second degree that is an
offense of violence, or an attempt to commit any of these offenses if the attempt is a felony of the first or
second degree . . ." R.C. 2929.01(CC)(1)(b).
4. The same "serious physical harm" findings discussed in fn. 2 also apply here. R.C. 2929.14(B)(2)(b)(iii).
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not specify during sentencing whether the enhancement was discretionary or mandatory.
{¶ 19} We therefore conclude the trial court did not err in imposing a Discretionary
RVO Enhancement.
{¶ 20} Issue 2: Next, Madden argues the trial court engaged in impermissible
judicial fact-finding when imposing his RVO enhancement by stating Madden's crime was
"quite frankly so gruesome . . . [and Madden] is a danger to the public." Madden argues
the trial court was constitutionally prohibited from making these findings.
{¶ 21} Ohio's Supreme Court previously held the Inadequacy and Demeaning
Findings involved unconstitutional judicial fact finding in violation of an offender's Sixth
Amendment right to a jury trial. State v. Foster, 2006-Ohio-856, ¶ 99. The Supreme Court
therefore ordered these provisions be severed from the statute and that "[a]fter the
severance, judicial fact-finding is not required before imposition of additional penalties for
repeat-violent- offender and major-drug-offender specifications."
Id.
{¶ 22} However, the Supreme Court of the United States abrogated Foster, in part,
by holding the Sixth Amendment does not inhibit States from requiring judges, rather than
to juries, to make certain factual findings before imposing consecutive sentences for
multiple offenses. Oregon v. Ice, 555 U.S. 160, 171 (2009). The Ohio Supreme Court has
since held, "when designating an offender as a repeat violent offender . . . a trial court
does not violate the Sixth Amendment by considering relevant information about the
offender's prior conviction that is part of the judicial record." State v. Hunter, 2009-Ohio-
4147, ¶ 38
{¶ 23} Regardless of any confusion stemming from the Discretionary RVO
Enhancement and case law, we conclude the trial court did not make any impermissible
findings when it imposed an RVO sentence enhancement. The statute specifically grants
the trial court the authority to exercise discretion when deciding how long the sentence
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enhancement will be. R.C. 2929.14(B)(2). Judges exercise this kind of sentencing
discretion in many cases, and apply the same standards found in the Inadequacy and
Demeaning Findings when they do. This kind of exercise of discretionary authority to
determine a specific sentence within a range of available options is not unconstitutional
"judicial fact-finding." Upon review, it is evident that the trial court considered Madden's
risk of recidivism and the seriousness of his crime to explain why it imposed the maximum
RVO sentence, not to justify why it decided to impose an RVO sentence enhancement in
the first place.5
{¶ 24} Issue 3: Finally, Madden argues within his first assignment of error there
was insufficient evidence to show that a juvenile court relinquished jurisdiction to an adult
court for the 1988 conviction that served as the basis for his RVO sentence enhancement.
In support, Madden cites a prior decision from this court upholding the imposition of an
RVO sentence after finding, among other things, "that the [S]tate presented sufficient
evidence . . . the Kentucky juvenile court relinquished its jurisdiction" over the appellant's
case and that he was tried and convicted as an adult. State v. Sargent, 126 Ohio App.3d
557, 564 (12th Dist. 1998). Madden asserts his RVO sentence enhancement is improper
because the trial court made no such finding here.
{¶ 25} However, the Sargent court based its analysis on a prior version of the
relevant statutes. At the time of the appellant's underlying offense, the trial court could
use a conviction when the defendant was a juvenile in support of an RVO sentence
enhancement if "the juvenile court in which the person was adjudicated a delinquent child
made a specific finding that the adjudication should be considered a conviction for
purposes of a determination in the future pursuant to this chapter as to whether the person
5. In fact, the trial court expressly stated it relied on Madden's prior conviction when deciding whether to
impose a sentence enhancement at all.
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is a repeat violent offender." 1995 Am.Sub.H.B. No. 445.
{¶ 26} Today's definition of RVO, however, does not contain this language. See
generally, R.C. 2929.01(CC). Neither does the RVO sentence enhancement statute. See
generally, R.C. 2929.14(B)(2). In fact, "a court may consider the judgment rendered and
the disposition of a child under that judgment for purposes of determining whether the
child, for a future criminal conviction or guilty plea, is a repeat violent offender, as defined
in [R.C. 2929.01]. R.C. 2151.357(H). Ultimately, nothing in the current versions of the
relevant statutes leads us to conclude that there are any special requirements, including
a juvenile court "relinquishing" its jurisdiction of a juvenile defendant to an adult court, for
a conviction to serve as the basis of determining whether a defendant is an RVO. We
cannot (and will not) override the General Assembly's legislative choice by "judicial fiat"
to make any such requirement. (Cleaned up.) See State ex rel. Mobley v. Franklin Cty.
Bd. of Commrs., 2023-Ohio-3993, ¶ 13.
{¶ 27} Madden's first assignment of error is overruled in its entirety.
Second Assignment of Error - Request for Self-Representation
{¶ 28} Next, Madden asserts the trial court erred in denying his "unequivocal"
desire to represent himself at trial. Criminal defendants have a constitutional right to
represent themselves. State v. Jones, 2025-Ohio-1780, ¶ 11 (12th Dist.). However,
appellate courts must look to "the totality of the circumstances" to determine whether a
defendant "knowingly, intelligently, and voluntarily" decides to waive his or her
constitutional right to an attorney and pursue self-representation. Id. at ¶ 13.
{¶ 29} Upon review of the record, we agree that Madden unequivocally stated his
desire to represent himself—at least, that is—until the trial court made clear that a
continuance of his jury trial, scheduled for later that month (and previously continued
multiple times), would not be granted. At that point, Madden indicated that, in spite of his
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criticisms of his appointed counsel, he wished to withdraw his request to represent
himself. The trial court subsequently journalized an order memorializing Madden's
withdrawal of his request to represent himself.
{¶ 30} Madden's argument on appeal ignores these critical facts, and they alone
conclusively demonstrate that he "abandoned any intention to represent himself . . ." at
trial. State v. Beamon, 2019-Ohio-443, ¶ 17 (12th Dist.).6
{¶ 31} We overrule this assignment of error.
Third Assignment of Error – A Representative and Witness
{¶ 32} Finally, Madden argues the trial court erred in permitting his daughter, also
the daughter of Smith, to be a victim's representative present at trial when she also served
as the State's first witness.7 Madden contends this amounted to "structural error," an error
so "highly exceptional" that its "effects . . . are too difficult to measure" and "results in a
trial that is fundamentally unfair." State v. Montgomery, 2022-Ohio-2211, ¶28-29.
{¶ 33} The Ohio Constitution, through what is commonly known as "Marsy's Law,"
provides criminal victims with the right to be present during criminal proceedings. State v.
Bai, 2011-Ohio-2206, ¶ 137 (12th Dist.), citing Ohio Const., art. I, § 10(a); R.C. 2930.09;
Evid.R. 615. To that effect, while a trial court may generally order the separation of trial
witnesses "so that they cannot hear the testimony of other witnesses," a "victim" is
expressly exempted from this. Evid.R. 615(B)(4). In addition, the Ohio constitution
expressly states that a victim's representative "may assert the rights . . . afforded to the
victim by law." Ohio Const., art. I, § 10a(B).
{¶ 34} Madden asserts that Ohio law "excepts a victim, but not a victim's
6. Both parties reference circumstances surrounding the withdrawal of Madden’s previous five appointed
attorneys, but we do not need to reach the import, if any, those facts had on Madden's motion to selfrepresent because the record establishes that Madden abandoned the motion.
7. Madden does not argue that his daughter was improperly designated as the victim’s representative.
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representative, from a [witness] separation order[,]" making the presence of his daughter
in the courtroom as both a victim representative and a witness unlawful. However, a
victim's representative is entitled to assert all rights afforded to victims under Ohio law—
including the right to be present at trial.
{¶ 35} Madden also argues that Montgomery is analogous to this case. In
Montgomery, the Supreme Court held that designating a victim as the State's
representative and permitting her to sit at the prosecutor's table amounted to structural
error because it "eroded the presumption of innocence accorded [to] Montgomery and
violated his fundamental right to a fair trial" under the U.S. Constitution. Montgomery,
2022-Ohio-2211 at ¶ 25. The Supreme Court also observed that, "[t]he case before us . .
. does not involve a challenge to the alleged victim's right to be present in the courtroom."
Id. at ¶ 13. The Montgomery court found this distinction significant because while Marsy's
Law (as well as Evid.R. 615[B][4]) may exempt "a victim from an order of separation and
exclusion of witnesses, neither provision addresses allowing the victim to sit at the
prosecutor's table as the [S]tate's designated representative." Id. at ¶14. As a result, the trial
court found these provisions inapplicable to the question at hand. Id.
{¶ 36} Montgomery is easily (and significantly) distinguishable from this case.
Madden's case does involve a challenge to the victim (and by extension the victim's
representative) to be present in the courtroom. The plain language of Marsy's Law
granted Madden and Smith's daughter the same rights as Smith—including attending the
trial and being exempted from the trial witness separation evidentiary rule. Moreover, she
was not seated at the prosecution table at trial.
{¶ 37} We therefore conclude the trial court did not err (structurally or otherwise)
in allowing the daughter to be present at trial.
{¶ 38} Madden's final assignment of error is overruled.
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{¶ 39} Judgment affirmed.
PIPER, P.J., and M. POWELL, J., concur.
JUDGMENT ENTRY
The assignments of error properly before this court having been ruled upon, it is
the order of this court that the judgment or final order appealed from be, and the same
hereby is, affirmed.
It is further ordered that a mandate be sent to the Butler County Court of Common
Pleas for execution upon this judgment and that a certified copy of this Opinion and
Judgment Entry shall constitute the mandate pursuant to App.R. 27.
Costs to be taxed in compliance with App.R. 24.
/s/ Robin N. Piper, Presiding Judge
/s/ Mike Powell, Judge
/s/ Melena S. Siebert, Judge
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