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State v. Marton

Court of Appeals of Ohio, Eighth District

August 8, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
EDWARD MARTON DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-561521

ATTORNEY FOR APPELLANT David L. Doughten.

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor BY John Hanley, Joseph J. Ricotta Assistant Prosecuting Attorneys.

BEFORE Rocco, J., Stewart, A.J., and E.A. Gallagher, J.

JOURNAL ENTRY AND OPINION

KENNETH A. ROCCO, JUDGE.

{¶1} Defendant-appellant Edward Marton appeals from the six-year sentence he received after he pleaded guilty to 28 counts of pandering sexually oriented matter involving a minor (hereinafter referred to as "child pornography") and one count of possession of criminal tools ("PCT").

{¶2} Marton presents two assignments of error. He asserts that the trial court failed to adequately comply with statutory requirements when imposing consecutive terms on two of the counts. The state conceded Marton's claim of error at oral argument; therefore, his first assignment of error is sustained.

{¶3} Marton also asserts that his trial counsel rendered ineffective assistance for failing to object to the consecutive terms. Upon review of the record, this court finds that trial counsel's conduct did not fall below an objective standard of reasonable performance.

{¶4} Marton's sentences are reversed. In addition, the journal entry that memorializes Marton's guilty pleas is flawed. Therefore, this case is remanded for resentencing and correction of the journal entry to reflect what occurred on the record at the change-of-plea hearing.

{¶5} Marton originally was indicted in this case on 70 counts that were alleged to have taken place over a four-year period. Counts 1 through 68 charged Marton with child pornography in violation of R.C. 2907.322(A)(1) and (2). Count 69 charged Marton with illegal use of a minor in nudity-oriented material or performance in violation of R.C. 2907.323(A)(1). Count 70 charged him with PCT, to wit: two computers, a hard drive, and CDs and DVDs. Marton entered not guilty pleas to the charges.

{¶6} The record reflects Marton's retained defense counsel attended numerous pretrial hearings, filed several motions on his client's behalf, and obtained an expert report regarding the contents of Marton's computers. Nearly six months after Marton's indictment, the prosecutor informed the trial court that a plea agreement had been reached.

{¶7} As outlined by the prosecutor, in exchange for the state's dismissal of the remaining counts and the state's amendment of Count 69 to a child pornography charge, Marton would enter guilty pleas to 29 counts, i.e., Counts 11, 23, 24, 29, 34, 36, 37, 39, 43, 47, 49, 50, 52 through 62, 64, 65, 67, 68, amended 69, and 70. The record reflects the parties presented the trial court with a written plea agreement to that effect.[1] After the court accepted Marton's pleas, the court referred him for a presentence investigation report and set a date for sentencing.

{¶8} When the sentencing hearing commenced, the prosecutor presented a factual basis for the pleas, and the court informed Marton of his duties to register as a sexual offender. Defense counsel at that time pointed out that in conducting the plea colloquy, the trial court had neglected to mention Count 65 and the amendment to Count 69.

{¶9} With the agreement of all the parties, the trial court simply reopened the plea hearing only to correct the oversight and the mistake. Marton entered guilty pleas to Count 65 and an amended Count 69. The trial court accepted the pleas, noted that the correction did not affect "the presentence report or anything, " and proceeded to the sentencing hearing. However, the trial court thereafter ...


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