[Cite as State v. Martemus , 2019-Ohio-1116.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106327

_______________________________________ STATE OF OHIO

PLAINTIFF-APPELLEE

vs. RAYLAND MARTEMUS

DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Court of Common Pleas Case No. CR-17-618173-A Application for Reopening Motion No. 522947

RELEASE DATE: March 27, 2019FOR APPELLANT Rayland Martemus, pro se Inmate No. 702331 Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio 44901

ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor By: Carson Strang Assistant County Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113

RAYMOND C. HEADEN, J.: {¶1} Rayland Martemus has filed a timely application for re opening pursuant to App.R. 26(B). Martemus is attempting to reope n the appellate judg ment, rendered in State v. Martemus , 8th Dist. Cuyahoga No. 106327, 2018-Ohio-3277, that affirmed his convic tion and sentence for three counts of aggravated burglary, one count of burglary, three counts of aggravated robbery, four counts of robbery, tw o counts of felonious a ssault, and one count of having weapons while under disability. Each conviction, aside fro m the robbery and havi ng weapons while under disability convictions, containe d notices of prior convictions and repeat violent offender specifications. Martemus was al so convicted of one-year and th ree-year firearm specifications with regard to the offenses of aggravated burglar y, aggravated robbery, r obbery, felonious assault, and burglary. We decline to re open Martemus’s original appeal.I. Standard of Review Applicable to App.R. 26(B) Applic ation for Reopening {¶2} In order to establish a cla im of ineffective assistance of appellate counsel, Martemus is required to establish that the performance of his appellate counsel was deficient and the deficiency resulted in prejudice. Strickland v. Washington , 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied , 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990). {¶3} In Strickland , the United States Supreme Court he ld that a court’s scrutiny of an attorney’s work must be highly deferential. The court further stated that it is all too tempting for a defendant to second-guess his a ttorney after conviction and that it would be too easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Thus, a court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable pr ofessional assistance; that is, the defendant must overcome the presumption that, under the circum stances, the challenged action mig ht be considered sound trial

strategy. Strickland

. II. Improper Imposition of Consecutive Sentences {¶4} Martemus has raised three proposed a ssignments of error in support of his application for reopening. Ma rtemus’s first proposed assignment of error is that: The appellate counsel failed to raise the issue that th e trial court’s imposition of consecutive sentences did not comply with R.C. 2929.14(C) and Crim.R. 32(B) State v. Peltrey

. {¶5} Martemus, through his first proposed assign ment of error, ar gues his appellate counsel was ineffective for failing to argue on a ppeal that the trial court erred by imposing consecutive sentences of incarceration with regard to the two firearm specifications. At sentencing, the trial court imposed the following consecutive sentences:Counts 1, 2, 3 and 4 merge for purposes of sentencing. State elects to proceed on count 1. Counts 5, 6, 7, 8, 9, 10, 11 merge for purposes of senten cing. State elects to proceed in count 5. Counts 12 and 14 me rge for purposes of sentencing. State elects to proceed in count 12. Count 1. 1 a nd 3 year firearm specification merge. 3 year firearm specification in count 1 to run prior to and consecutive with 4 year sentence on underlying count. Count 5. 1 and 3 year firearm specification merge. 3 year firearm specification in count 5 to run prior to and consecutive with 4 year sentence on underlying count. Count 12. 1 a nd 3 year firearm specification merge. 3 year firearm specification in count 12 to run prior to and consecutive with 3 year sentence on underlying count. Count 16. 12 months. Firearm specification in count 1 and count 12 to run consecutive pursuant to R.C. 2929.14(b)(1)(g), firearm specification in count 5 to run concurrent to firearm specification in count 1 and 12. The underlying sentences in count 1, count 5, count 12 and count 16 to run concurrent, for an overall sentence of 10 y ears. The court considered all required factors of the law. The court finds that pr ison is consistent with the purpose of R.C. 2929.11. The court imposes a prison sentence at the Lorain Correctional Institution of 10 year(s). (Emphasis added.) {¶6} In addition, R.C. 2929.14(B)(1)(g) provides that: If an offender is convicted of or pleads gu ilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery , felonious assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a ) of this section for each of the two most serious specifications of which the offender is c onvicted or to which the offender pleads guilty and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications. R.C. 2929.14(B)(1)(g) allows for the imposition of multiple, consecutive firearm specifications. See, e.g., State v. Lawrence , 8th Dist. Cuyahoga Nos. 100371 and 100387, 2014-Ohio-4797, ¶ 12-16. A mandatory three-year firearm specificati on must be ordered to run not only consecutive to the prison term for the underlying felony, but also consecutive to any other mandatory firearm specification pursuant to R.C. 2929.14(B)(1)(g). State v. Parker , 8th Dist. Cuyahoga No. 106585, 2018-Ohio-3677. {¶7} In the case sub judice, Martem us was convicted of aggravated robbery with a one-year firearm specification and a three-year firearm specification and felonious assault with a one-yearfirearm specification and a three- year firearm specification. Pu rsuant to R.C. 2929.14(B)(1)(g), the trial court was required to run the three-year firearm specifications consecutive to each other.

All other counts were orde red to be run concurrent to each ot her. Thus, Martemus has failed to establish any prejudice through his firs t proposed assignment of error.

III. Defective Indictment {¶8} Martemus’s second proposed assi gnment of error is that: The appellate counsel faile d to raise the issue of defective indictment. {¶9} Martemus, through his second proposed assign ment of error, ar gues his appellate counsel was ineffective for failing to argue on app eal that the indictment brought against him was defective. Specifically, Martemus argues that the indictment was defective because it failed to furnish him with a detailed description of the charged offenses and failed to identify any culpable

mental state. {¶10} The Supreme Court of Ohio has established that: In contrast, “[t]he purposes of an indictme nt are to give an accused adequate notice of the charge, and enable an accused to pr otect himself or herself from any future prosecutions for the same incident.” State v. Buehner , 110 Ohio St.3d 403, 2006-Ohio-4707, ¶ 7, 853 N.E.2d 1162. “[W]e have recognized that even when an indictment fails to charge the mens rea of the offense, it is not defective as long as it ‘tracks the language of the criminal statute describing the offense,’ because that suffices to ‘provide[ ] the defendant with adequate notice of the charges against him.” (Brackets sic.) State v. Wesson , 137 Ohio St. 3d 309, 2013-Ohio-4575, ¶ 24, 999 N.E.2d 557, quoting State v. Horner , 126 Ohio St.3d 466, 2010-Ohio-3830, ¶ 45, 935 N.E.2d 26. Similarly, “[a]n indictment th at tracks the language of the chargedoffense and identifies a predicate offense by reference to the statute number need not also include each element of a predicate offense.” Buehner at the syllabus.

State v. Sowell , 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, ¶ 127. {¶11} We find that the indictment was not def ective and properly identified the statute numbers associated with the charged offenses, tr acked the language of the charged offenses, and

included the elements associated with the offenses of aggravated burglary, burglary, aggravated robbery, robbery, felonious assa ult, and having weapons while under disability. Martemus, through his second proposed assignment of error, has failed to demonstr ate that the performance of his appellate counsel was deficient and th at he was prejudiced. IV. Trial Court Lacked Subject Matter Jurisdiction {¶12} Martemus’s third proposed assi gnment of error is that: The appellate counsel failed to raise the question of subject matter jurisdiction pursuant to Crim.R. 3. {¶13} Martemus, through his third proposed assignme nt of error, states that his appellate counsel was ineffective on appeal by failing to ar gue that the trial court did not possess subject matter jurisdiction over his criminal case. Pursuant to R.C. 2931.03, the Cuyahoga County Court of Common Pleas possesses subject matter jurisdiction of criminal cases. The Cuyahoga County Common Pleas Court has original jurisdic tion in felony cases and its jurisdiction is invoked by the return of an indictment. Click v. Eckle , 174 Ohio St. 88, 186 N.E.2d 731 (1962).

{¶14} Herein, the indictment charge d Martemus with 16 felonies alleged to have occurred in Cuyahoga County, Ohio. The Cuyahoga County Court of Common Pleas, therefore, possessed subject matter jurisdiction over appellant’s case. State ex rel. Frett v. Sutula , 8th Dist. CuyahogaNo. 101983, 2015-Ohio-21; State v. Orr , 8th Dist. Cuyahoga No. 100841, 2014-Ohio-4680. Martemus, through his third proposed assignment of error, has failed to demonstrate that the performance of his appellate counsel was deficient a nd that he was prejudiced.

{¶15} Accordingly, the application for reopening is denied.

RAYMOND C. HEADEN, JUDGE SEAN C. GALLAGHER, P.J., and EILEEN A. GALLAGHER, J., CONCUR