State v. Walker

[Cite as State v. Walker, 2022-Ohio-820.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 110640
v. :

MARTEZ WALKER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 17, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-654409-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jonathan Block, Assistant Prosecuting
Attorney, for appellee.

Ruth R. Fischbein-Cohen, for appellant.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Martez Walker, appeals his convictions and

sentence following a guilty plea. For the reasons that follow, we affirm.

In October 2020, Walker was named in a three-count indictment

charging him with one count each of falsification, theft, and forgery ─ all felonies of
the fifth degree. The charges stemmed from Walker giving a false name to

MetroHealth Medical Center while seeking emergency medical services after being

shot.

In June 2021, Walker entered into a plea agreement with the state. He

agreed to plead guilty to the falsification offense as charged, and the state would

dismiss the remaining counts.1 The trial court engaged in the requisite Crim.R. 11

colloquy, accepted Walker’s guilty plea, and imposed a sentence of 12 months in

prison ─ the maximum sentence for the offense.

Walker now appeals, raising three assignments of error.

I. Guilty Plea

In his first assignment of error, Walker contends that “the within

indictment and conviction is void.” He has not raised any argument that he did not

make a knowing, intelligent, and voluntary plea. Rather, Walker contends that it

was error for the trial court to convict him of falsification, a fifth-degree felony,

because the state did not specify in the indictment or prove the value of the services

and, therefore, he should be guilty only of a misdemeanor falsification offense.2

1Count 1 of the indictment charged Walker with falsification, in violation of R.C.
2329.13(A)(9), which alleged that Walker “did knowingly make a false statement * * *
when the statement was made with purpose to commit or facilitate the commission of a
theft offense.” Count 1 contained a furthermore clause that “the value of the property or
services stolen was [$1,000] or more but less than [$7,500].”
2 Walker also contends that because the state did not seek restitution, no crime was

committed. This argument is completely unreasonable. Whether restitution is sought
has no bearing on the commission of a crime. Moreover, and as the prosecutor noted
during sentencing, the hospital was able to correctly invoice Walker for the services it
rendered; any request for restitution would have been duplicative.
 However, Walker has waived any argument regarding any deficiency in

the indictment by failing to object to the indictment and by pleading guilty to the

offense. Crim.R. 12(C)(2) mandates that “[d]efenses and objections based on

defects in the indictment” must generally be raised “[p]rior to” trial. “‘Failure to

timely object to the allegedly defective indictment constitutes a waiver of the issues

involved.’” State v. Barton, 108 Ohio St.3d 402, 2006-Ohio-1324, 844 N.E.2d 307,

¶ 73, quoting State v. Biros, 78 Ohio St.3d 426, 436, 678 N.E.2d 891 (1997).

Moreover, Crim.R. 11(B)(1) states, “[t]he plea of guilty is a complete

admission of the defendant’s guilt.” State v. Colon, 2017-Ohio-8478, 99 N.E.3d

1197, ¶ 15 (8th Dist.). In this case, the trial court engaged in the requisite Crim.R. 11

colloquy with Walker and thoroughly explained the rights he would be waiving if he

pleaded guilty, one of which is the right “to require the state to prove the defendant’s

guilt beyond a reasonable doubt at a trial.” Crim.R. 11(B)(2)(c); see tr. 11. Walker

stated that the understood this right prior to entering his guilty plea to falsification,

a fifth-degree felony, as charged in the indictment.

Accordingly, Walker has waived any argument that the indictment was

defective or that the state did not prove the value of services stolen. His first

assignment of error is overruled.

II. Effective Assistance of Counsel

Walker contends in his second assignment of error that his right to

counsel was violated. Specifically, he contends he was deprived of effective

assistance of counsel because he had four different attorneys throughout the
proceedings. He also claims that his trial counsel who appeared at his plea hearing

and sentencing was ineffective for failing to (1) allow him to make a statement prior

to entering his plea; and (2) provide zealous advocacy at sentencing.

To establish ineffective assistance of counsel, a defendant must

demonstrate that counsel’s performance fell below an objective standard of

reasonable representation and that he was prejudiced by that performance. State v.

Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205, citing

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

Prejudice is established when the defendant demonstrates “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceedings would

have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland at 694. The failure to prove

either prong of the Strickland two-part test makes it unnecessary for a court to

consider the other prong. State v. Madrigal, 87 Ohio St.3d 378, 388-389, 721

N.E.2d 52 (2000), citing Strickland at 697.

Walker has failed to demonstrate that he was deprived of effective

assistance of counsel. His contention that he was prejudiced by multiple

substitutions of counsel is unfounded. The attorney who appeared with Walker

during arraignment withdrew for health concerns. His next appointed counsel

withdrew because he took a position with the prosecutor’s office. Walker’s third

appointed counsel did not withdraw as counsel, but another attorney from his office

appeared during the plea hearing. Walker raised no objection about the presence of
stand-in counsel, and in fact, admitted during the Crim.R. 11 plea colloquy that he

was satisfied with his attorney’s representation. (Tr. 9.). While we recognize that

continuity of counsel is preferred, multiple attorneys do not equate to ineffective

assistance of counsel.

We further find that counsel’s performance during the plea hearing

and at sentencing was not deficient. Walker alleges that his counsel acted

“abusively” by failing to allow him to make a statement prior to the plea. Our review

of the record reveals that counsel was not abusive, and in fact acted appropriately by

reminding Walker that his statements were on the record and anything he said could

be used against him. This caution was appropriate because Walker was making

incriminating statements about the commission of the offense before the plea

agreement was offered and accepted. Counsel was protecting her client from

potentially self-sabotaging any plea agreement the state was offering. Counsel’s

performance can hardly be seen as defective.

Walker next contends that his counsel failed to provide zealous

advocacy during sentencing, asserting that had counsel engaged in “diligent

sales talk” with the court, “a lesser sentence would have been accomplished.” The

record belies Walker’s assertions. The trial court was aware of the circumstances

surrounding the offense — that Walker gave hospital personnel a false name when

seeking treatment for gunshot wounds. Walker’s counsel offered a mitigation

presentation that included Walker’s justification for providing the false name — to

protect himself and his family from the individuals who shot him and that Walker
took responsibility for his actions. Nevertheless, the trial court reviewed Walker’s

lengthy criminal history, including that he was currently serving a sentence for

violating postrelease control, and concluded that he had a high risk of recidivism.

Accordingly, the record reveals that it was Walker’s own actions and criminal history

that resulted in the trial court imposing the maximum sentence; not counsel’s

inability to engage in “diligent sales talk” with the trial court. The second

assignment of error is overruled.

III. Sentence

In his third assignment of error, Walker contends that his sentence is

disproportionate to the offense based on the circumstances surrounding the offense

and the justification for why he provided a false name to medical personnel.

The Eighth Amendment to the United States Constitution applies to

the states pursuant to the Fourteenth Amendment. Robinson v. California, 370 U.S.

660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). The Eighth Amendment and Section 9,

Article I of the Ohio Constitution both provide: “[e]xcessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” “‘“The Eighth Amendment does not require strict proportionality

between crime and sentence. Rather, it forbids only extreme sentences that are

‘grossly disproportionate’ to the crime.”’” State v. Hairston, 118 Ohio St.3d 289,

2008-Ohio-2338, 888 N.E.2d 1073, ¶ 13, quoting State v. Weitbrecht, 86 Ohio St.3d

368, 372-373, 715 N.E.2d 167 (1999), quoting Harmelin v. Michigan, 501 U.S. 957,

1001, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring).
 In this case, Walker did not raise any proportionality argument in the

trial court. Moreover, he does not demonstrate on appeal how his sentence is

disproportionate to the offense, but only sets forth mitigating factors that the trial

court should have weighed in his favor. According to Walker, the record does not

support his sentence. We disagree.

We review felony sentences under the standard set forth in R.C.

2953.08(G)(2). See State v. Smith, 8th Dist. Cuyahoga No. 108793, 2020-Ohio-

3666, ¶ 18; State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.2d 1231,

¶ 21. Under R.C. 2953.08(G)(2), an appellate court may increase, reduce, or

otherwise modify a sentence or vacate a sentence and remand for resentencing, if it

clearly and convincingly finds that the record does not support the sentencing

court’s findings as required under the law, or the sentence is otherwise contrary to

law. A sentence is contrary to law if it falls outside the statutory range for the offense

or if the sentencing court fails to consider the purposes and principles of sentencing

set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v. Pawlak,

8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58.

Under R.C. 2929.11(A), the overriding purposes of felony sentencing

are to (1) protect the public from future crime by the offender and others, (2) punish

the offender, and (3) promote the effective rehabilitation of the offender using the

minimum sanctions that the court determines accomplish those purposes without

imposing an unnecessary burden on state or local government resources. A

sentence imposed for a felony should be reasonably calculated to achieve the three
overriding purposes of felony sentencing, and must be “commensurate with and not

demeaning to the seriousness of the offender’s conduct and its impact upon the

victim, and consistent with sentences imposed for similar crimes committed by

similar offenders.” R.C. 2929.11(B).

R.C. 2929.12 gives the sentencing court discretion to determine the

best way to comply with the purposes and principles of sentencing set forth in R.C.

2929.11 when imposing a sentence. State v. Switzer, 8th Dist. Cuyahoga No. 102175,

2015-Ohio-2954, ¶ 10. In exercising this discretion, the sentencing court must

consider a nonexhaustive list of factors relating to the seriousness of the offender’s

conduct and the likelihood of recidivism. Relevant to this appeal, these factors

include the economic harm suffered by the victim; the defendant’s prior criminal

record; whether the defendant shows any remorse; and any other factors relevant to

achieving the purposes and principles of sentencing. R.C. 2929.12(B) and (D). The

court must also consider any factors “indicating that the offender’s conduct is less

serious than conduct normally constituting the offense.” R.C. 2929.12(C).

A trial court is not required to make factual findings under R.C.

2929.11 or 2929.12. State v. Kronenberg, 8th Dist. Cuyahoga No. 101403, 2015-

Ohio-1020, ¶ 27. Indeed, consideration of the factors is presumed unless the

defendant affirmatively demonstrates otherwise. State v. Seith, 8th Dist. Cuyahoga

No. 104510, 2016-Ohio-8302, ¶ 12. This court has consistently found that a trial

court’s statement that it considered the required factors, without more, is sufficient

to fulfill its obligations under R.C. 2929.11 and 2929.12. Kronenberg at ¶ 27.
 Walker contends that his sentence should be reversed because it is

disproportionate to the seriousness of the offense based on the justification he

provided to the court. He contends that he should have been sentenced to

community-control sanctions or a lesser prison sentence. Essentially, Walker

contends that the record does not support the trial court’s findings under R.C.

2929.11 and 2929.12.

The Ohio Supreme Court has made clear, however, that R.C.

2953.08(G)(2) does not provide a basis for an appellate court to modify or vacate a

sentence based on a lack of support in the record for the trial court’s findings under

R.C. 2929.11 or 2929.12. See State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729,

169 N.E.3d 649, ¶ 29. “Nothing in R.C. 2953.08(G)(2) permits an appellate court to

independently weigh the evidence in the record and substitute its judgment for that

of the trial court concerning the sentence that best reflects compliance with R.C.

2929.11 and 2929.12.” Id. at ¶ 42. Accordingly, this court cannot review whether

the record supports the trial court’s application of the R.C. 2929.11 and 2929.12

factors. State v. Levinson, 8th Dist. Cuyahoga No. 110281, 2021-Ohio-3601, ¶ 21;

State v. Lashley, 8th Dist. Cuyahoga No. 110250, 2021-Ohio-3101, ¶ 19.

The trial court’s journal entry of sentencing states that it “considered

all required factors of the law,” and Walker has failed to affirmatively demonstrate

otherwise. Moreover, despite Walker’s contention that the trial court improperly

applied the R.C. 2929.11 and 2929.12 factors, the record reflects careful

consideration by the trial court of the principles and purposes of sentencing under
R.C. 2929.11 and the seriousness and recidivism factors of R.C. 2929.12. During the

sentencing hearing, the trial court specifically found that Walker has an extensive

criminal history and was already serving a sentence for violating postrelease control,

thus concluding that Walker has a high risk for recidivism.

We recognize that a 12-month sentence under the circumstances may

be harsh, but under our limited review of felony sentences, we are unable to modify

Walker’s sentence where the records supports that the trial court adequately

considered the purposes of sentencing set forth in R.C. 2929.11 and the seriousness

and recidivism factors in R.C. 2929.12. Accordingly, the assigned error is overruled

Judgment affirmed.

It is ordered that appellee recover from 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 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.

KATHLEEN ANN KEOUGH, JUDGE

ANITA LASTER MAYS, P.J., and
EMANUELLA D. GROVES, J., CONCUR