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1 IN THE SUPREME COURT OF OHIO ^. ^4^^ ^T^ STATE OF OHIO, APPELLEE, -VS- JUAN M. MARTINEZ, JR. APPELLANT. Case No On Appeal from the Seneca County Court of Appeals Third Appeilate District Case #13-1i-21 # MEMORANDUM IN OPPOSITION OF JURISDICTION OF APPELLEE STATE OF OHIO Juan M. Martinez, Jr. # Marion Correcti.onal Institution Post Office Box 57 ^ Marion, Ohio PRO SE FOR FOR DEFENDANT -- APPELLANT DEREK W. DeVINE (# ) Seneca County Prosecutor HEATHER N. JANS (# ) (Counsel of Record) Assistant Prosecuting Attorney 71 South Washington Street, Suite 1204' Tiffin, Ohio (419) COUNSEL F R STATE OF OHIO - APPELLEE G^L^^C`^'o ^"^D ^^^^^ 01 za7z CLERK OF COURT SUPRE(^^ duurt OE OHIO - i^'^^:. i^,i71 ^^ Yg ij ^! ^^^ ^.;^_^^tk^vf ^`,(lul^i S^JPK^.I^1^ CCIUft-^ UF UHl^

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS COURT SHOULD DECLINE JURISDICTION...1 STATEMENT OF THE CASE AND FACTS...1 ^< RESPONSE TO PROPOSITION OF LAW NO. ONE...4 RESPONSE TO PROPOSITION OF LAW NO. TWO... 6 RESPONSE TO PROPOSITION OF LAW NO. THREE AND FOUR...6 CONCLUSION CERTIFiCATE OF SERVICE...10

3 :, EXPLANATION OF WHY THIS COURT SHOULD DECLINE JURISDICTION This Honorable Court should decline jurisdiction in State v. Martinez, 2012-Ohio- 3750, because the case does not involve a substantial constitutional question, and is not of pubiic or great general interest. Appellant alleges a split in the circuits between the Seventh District and the Third District Court of Appeals concerning a Judge's voluntary recusal. On the contrary, there is no conflict between the appellate courts. Furthermore, the additional issues raised by Appellant are either prohibited by res judicata and do not demonstrate a compelling reason to review Apellant's case. Therefore Appellee respectfully requests this Honorable Court decline jurisdiction. STATEMENT OF THE CASE AND FACTS On May 7, 2003, Appel,lant was charged in a three count indictment for Possession of Cocaine in an amount exceeding 100 grams but less than 500 grams in violation of R.C (A),(C)(4)(d), a felony of the second degree (Count One); Possession of Marihuana in an amount exceeding 5,000 grams but less than 20,000 grams in violation of R.C (A),(C)(3)(e), a felony of the third degree (Count Two); and Possession of Marihuana in an amount exceeding 20,000 grams in violation of R.C (A),(C)(3)(f), a felony of the second degree (Count Three). The third count also included three specifications seeking forfeiture of a freezer in which marihuana was stored, a.22 caliber firearm found in Appellant's bedroom, and $2,542 that Appellant had used in the commission of the offense. The charges principally arose as a result of an undercover drug buy of twentytwo pounds of marihuana from Appellant's home and subsequent search warrant executed on April 10, 2003 of Appellant's home and vehicle located in Seneca County, 1

4 Ohio. Police discovered more than 133 grams of cocaine in Appellant's home, more than 6,000 grams of marihuana in Appellant's car, and additional marihuana in Appellant's home exceeding 22,000 grams. After a three day jury trial on August 18, 2004, Appellant was found guilty as charged of all three counts in the indictment with specifications. A sentencing hearing was held on October 18, 2004 in which the Appellant was sentenced to a mandatory prison term of l years on Count One, a non-mandatory prison term of 2 years on Count Two, and a mandatory maximum prison term of 8 years on Count Three. Counts Two and Three were to run concurrent to each other but consecutive to Count One for a total stated prison term of 15 years. Appellant appealed. On April 24, 2006 the Third District Court of Appeals affirmed the judgment of the trial court but vacated the Appellant's sentence. The sole reason the court of appeals vacated the sentence and remanded to the trial court was due to this Court's decision in State v. Foster. Martinez l, at 21, citing State v. Foster (2006), 109 Ohio St.3d 1. Appellant's sentence was deemed void as it was based upon unconstitutional statutes thus necessitating that the case be remanded to the trial court for re-sentencing. Shortly after this Court's decision in Appellant's case, the Trial Court attempted to return Appellant for a re-sentencing hearing scheduled for May 11, The trial court issued a warrant to return the Appellant to the court for resentencing, "but the sheriff returned the warrant as unserved because the Appellant was then `in federal prison"'. (Jug. Entry Oct. 11, 2011, p. 2). Appellant had also been indicted in a separate federal court drug case. On August 24, 2006, the trial court reviewed Appellant's file and again found that Appellant was unavailable for re-sentencing since he was still in the custody 2

5 of the federal government. lo'. On December 19; 2006, Appellant was sentenced to 37 months in prison in his federal case to be served concurrent to his state court sentence. After Appellant was sentenced in his federal case, there was no report to the Seneca County Prosecutor's Office or the Seneca County Court of Common Pleas to indicate that Appellant was available for re-sentencing. On April 21, 2011 Appellant sent a letter to the trial court requesting a re-sentencing hearing at which time the court appointed counsel and scheduled re-sentencing. On May 24, 2011, the trial court held a resentencing hearing where it imposed the same sentence of 15 years imprisonment. At that hearing Appellant made an oral motion to dismiss the case for lack of subject matter jurisdiction and followed up with a `^ written motion two days later. A hearing was set for the new motion on July 12, On June 17, 2011, Appeltant filed a notice of appeaf to the Third District appealing the court's resentencing hearing. The State filed a response to Appellant's motion for lack of subject matter jurisdiction on June 21, 2011 and subsequently filed a motion to dismiss Appellant's jurisdictional motion on July 5, 2011 because the trial court no longer had jurisdiction once Appellant had appealed to the Third District. Due to a potential conflict in presiding over the case, the trial court judge, Judge Kelbley, voluntarily recused himself from further proceedings on July 8, Soon thereafter, this Honorable Court assigned Judge Markus to preside over the case at the trial court. Because the appeals court stayed the appeal and remanded the case to the trial court to consider Appellant's motion, the State withdrew its motion to dismiss Appellant's motion on August 16, ` 3

6 After several continuances for various reasons, Judge Markus held a hearing on Appellant's jurisdictional motion on October 6, That same day, Appellant orally requested that Judge Markus resentence him since Juc^ge Kelbley had recused himself. Judge Markus declined to resentence Appellant and on October 11, 2011 denied Appellant's motion to dismiss due to lack of subject matter jurisdiction. Appellant appealed Judge Markus' decision to the Third District Court of Appeals which consolidated the two appeals, upheld the decisions of the trial court, and overruled all of Appellants' assignments of error. ARGUMENTS IN OPPOSITION TO APPELLANT'S PROPOSITIONS OF LAW. Proposition of Law No. 1 Appellant alleges a conflict in the lower courts regarding whether an appellate court has jurisdiction to review a trial court judge's reason for voluntary recusal. However this is not the case. In Martinez ll, the pertinent issues before the Court were whether the visiting judge should have resentenced Appellant, and/or determined the basis for the conflict of interest causing the trial court judge to voluntarily recuse himself: The Court in Martinez ll correctly declined to inquire into the determination of why the trial court judge recused himself as "[a] judge's decision to voluntarily recuse himself is a matter of judicial discretion". State ex rel. Gomez v. Nau, 2008-Ohio-5685, 19, No. 08 NO 355 (7t" Dist. Oct. 29, 2008), citing State ex rel. Brady v. Russo, 8t" Dist. No , hio-3277, ^[22. Moreover, a determination of whether "a common pleas court judge is biased or prejudiced is within the exclusive jurisdiction of the Chief Justice of the Supreme Court of Ohio, or his designee". State v. Holdcroft, 3d Dist. No , 2010-Ohio-6262, 4

7 25, citing Jones v. Billingham (1995), 105 Ohio App. 3d 8. Appellant is attempting to take the decision out of context in order to create a conflict with the Seventh District Court of Appeals. The case which Appellant aileges as a conflict, State v. Ludt, involved a trial judge who conducted a bench trial, found defendant guilty, and five minutes later recused himself from sentencing defendant. State v. Ludt, 180 Ohio App.3d 672, Ohio-416. Thus the issue before that Court was not to determine the reasoning behind the judge's recusal, but whether there was a violation of Appellant's due process rights. Additionally, the Court specifically stated that "[a]ithough we have no jurisdiction to resolve whether or not a judge should recuse himself or herself, we do have the authority to review due-process errors". /d, at 1. Moreover, the Court later states, "[w]e must reiterate here that we will not review because we do not have the authority to review whether or not the trial judge should be disqualified from presiding over the case, or the propriety of the trial court's eventual decision to recuse". Id. at 17. Unlike in Ludt, in Appellant's case the voluntary recusal was not "immediately" after the resentencing hearing, but approximately two months later. Rather than conflicting with the Third District Court's conclusion, it confirms that the Court could not inquire into the reasoning behind a trial court judge's voluntary recusal Because there is no conflict, this Honorable Court should decline jurisdiction in this case. 5

8 Proposition of Law No. 2 Appellant's proposition of law number two is being raised for the first time and is therefore prohibited by res judicata. According to this Court's syllabus in State v. Perry, the doctrine of res judicata establishes that, "a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except on appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgrnent." State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, at 9 of the syllabus. Thus the issues that are now being raised by Appellant for the first time are prohibited from being ruled upon. These include Appellant's alleged Due Process violation, violations of "Fundamental Fairness", a conflicted judge, and the proper weight of mitigating factors. At no time did Appellant raise the issue of due process in the trial court or on appeal. Appellant is merely attempting to get a second bite at the apple because he did not win his appeal in the lower court. This argument is clearly for the benefit of the Appellant alone and is neither a significant constitutional issue nor a compelling case necessitating a review by this Court. Proposition of Law Nos. 3 and 4 As in Appellant's proposition of law number two, Appellant is attempting to get a second chance at an appeal and have this Court rehash what the appellate court already reviewed. There is nothing new or significant to review before this Court which would be helpful to the bench or bar and therefore jurisdiction should be declined. Proposition of Law No. Three raises the issue of the delay in resentencing which the Third District Court of Appeals considered in Assignment of Error No. II, and 6

9 correctly overruled. The relevant inquiry was whether the trial court abused its discretion by denying Appellant's motion to dismiss. In Martinez l, the Court remanded solely for the purpose of resentencing Appellant due to a void sentence as proscribed in State v. Foster. This Court has determined that a trial court retains continuing jurisdiction in order to correct a void sentence. State ex rel Cruzado v. Zaleski (2006), 111 Ohio St.3d 353, 356, 2006-Ohio- 5795, citing State v. Beasley (1984), 14 Ohio St.3d 74, 75. In reviewing Appellarit's case, the appellate court determined that Appellant had suffered no prejudice in the delay in resentencing. Pursuant to the mandatory sentencing requirement in R.C (C)(3)(f) for Appellant's conviction, the Court had no discretion to sentence Appellant to anything but a mandatory prison term of eight years. R.C (C)(3)(f) circa May As such, the mandatory eight year prison term Appellant was serving for Count Three had not yet expired prior to his resentencing hearing. While the delay in resentencing was lengthy, it was not deliberate. The delay was for a lesser period than even the mandatory minimum prison term to which Appellant was sentenced. Appellant was not prejudiced by the delay, as (1) he received the same sentence as at the original sentencing, (2) he did not have to serve any additional time in prison as a result of the delay, (3) the delay did not have any effect on his pretrial incarceration, and (4) as the delay occurred after the jury trial in the case at bar it did not affect any defense he could have presented at the jury trial. Additionally, the Appellate Court had already upheld his conviction so there was no further issue with regard to the merits of Appellant's case. 7

10 Therefore, the Third District's decision was correct and Appellant's third proposition of law should be declined. In proposition of law four, Appellant contends that the sentencing court abused its discretion by not properly weighing mitigating factors under R.C /Vhile this issue was not specifically addressed at the appellate level (which would also indicate it should be denied under the theory of res judicata), Appeltant did argue that the resentencing constituted cruel and unusual punishment and was an abuse of discretion in his assignment of error number one. These issues are similar to the issue Appellant now raises with this Court. As the Third District noted in Martinez 1l, Appellant's conduct as evidenced during trial and the first sentencing hearing demonstrated that Appellant's conduct was more serious than conduct normally constituting the offense. Although Appellant had not been previously caught and charged criminally as an adult, he admitted in his presentence report that he had a history of drug and alcohol abuse, including the use of alcohol, marihuana, LSD, ecstasy and cocaine. His girlfriend had indicated that she had assisted the Appellant in possessing cocaine and marihuana in the home because the Appeilant threatened and beat her. A firearm was found in Appellant's bedroom along with a bag of cocaine which was later forfeited to the State. Testimony at trial indicated that Appellant was in the business of trafficking in drugs and in fact the investigation had originated with a purchase from Appellant's home of 22 pounds of marihuana at the price of $25,000. Additionally, this case was the most serious of any "similar" offense Seneca County had ever seen as it was the largest amount of illegal drugs ever seized. Moreover, the sentences were all within the range specified by the revised code and 8

11 Count Two was run concurrent with Count Three. Furthermore, the trial court judge who proceeded over the resentencing, was the same judge who proceeded over Appellant's trial and original sentencing. Thus the trial court judge was in the best position to determine the^appropriate sentence for AppelJant as he had personal knowledge of the entire record. Lastly, while Appellant alleged during resentencing that he had been rehabilitated, the information presented was primarily from religious activities. Ironically, during Appellant's original sentence he brought a Bible to the sentencing and quoted from it claiming that the tria! court judge did not have authority to judge and sentence him because only God was capable of doing this. Clearfy Appellant's religious proclivities were present at the original sentencing and not due to rehabilitation. CONCLUSION For the foregoing reasons, Appellee respectfully requests this Honorable Court decline jurisdiction as the' case at bar does not present questions of substantial constitutional issues nor does it involve any issue of public or great general interest to warrant further review by this Court. Respectfully Submitted: DEREK W. DeVINE PROSECUTING ATTORNEY BY: d^,u^^s^'^.?i^ l^ ^ I^eather N. Jans Assistant Prosecuting Attorney Reg. # S. Washington St., #1204 Tiffin, Ohio Telephone (419) Counsel for Plaintiff-Appellee 9

12 CERTIFICATE OF SERVICE i hereby certify that a true and accurate copy of the foregoing instrument was served upon Appellant, Juan M. Martinez, Pro Se For Defendant-Appellant, # , Marion Correctional Institution, Post Office Box 57, Marion, Ohio , this,^tn day of October, 2012.,1 ^ ^/l 1 ^l i^ ^ ^GIM A I-^eather N. Jans Assistant Prosecuting Attorney #