State v. Rondon ( 2013 )

[Cite as State v. Rondon, 2013-Ohio-4175.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26637
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ISRAEL RONDON COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 09 09 2905
DECISION AND JOURNAL ENTRY
Dated: September 25, 2013
CARR, Judge.
{¶1} Appellant, Israel Rondon, appeals the judgment of the Summit County Court of
Common Pleas. This Court reverses and remands for further proceedings.
I.
{¶2} On October 1, 2009, the Summit County Grand Jury returned an indictment
charging Rondon with one count of carrying a concealed weapon in violation of R.C.
2923.12(A)(2), a felony of the fourth degree; one count of carrying a concealed weapon in
violation of R.C. 2923.12(A)(1), a misdemeanor of the first degree; one count of operating a
vehicle without a valid license, a misdemeanor of the fourth degree; and one count of speeding, a
minor misdemeanor. Rondon initially pleaded not guilty to the charges at arraignment. Rondon
subsequently appeared for a change of plea hearing, where the State indicated that Rondon
would be entering a no contest plea in order to preserve a constitutional challenge for appeal.
After entering his no contest plea, Rondon then proffered his constitutional argument with the
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understanding that he was preserving that issue for appeal. Rondon was then sentenced to an
aggregate prison term of twelve months, which was suspended on the condition that he complete
two years of community control.
{¶3} On appeal, this Court determined that Rondon was erroneously led to believe that
by proffering his constitutional argument subsequent to entering his no contest plea, he had
adequately preserved that issue to appeal. State v. Rondon, 9th Dist. Summit No. 25447, 2011-
Ohio-4938. After concluding that Rondon had not entered his plea knowingly, intelligently, and
voluntarily, this Court vacated his plea and remanded the matter for further proceedings. Id. at ¶
6.
{¶4} On remand, Rondon informed the trial court of his intention to proceed pro se in
this matter. On July 27, 2012, the trial court issued an order indicating that Rondon would be
acting pro se, and appointed stand by counsel. On August 22, 2012, stand by counsel filed a
motion to dismiss count one of the indictment on the basis that several of Ohio’s handgun laws
violated the United States Constitution. That same day, the trial court held a hearing where stand
by counsel offered oral arguments in support of the motion. The trial court denied the motion on
the record, and conducted a plea colloquy. At several points during the plea colloquy, Rondon
spoke out and offered arguments in support of the motion to dismiss. At one point, Rondon
stated, “I[’d] like to clarify that I was not carrying a weapon.” When asked for his plea on the
first count of carrying a concealed weapon, Rondon twice responded “Don’t want [to] do it.”
Subsequently, when asked how he intended to plead to each of the four counts in the indictment,
Rondon responded, “No contest under coercion.” After the trial court accepted Rondon’s pleas
and found him guilty, he was sentenced to an aggregate prison term of eighteen months, a six-
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month driver’s license suspension, and a fine. The sentence was stayed pending appeal. The
trial court journalized its sentencing entry on September 6, 2012.
{¶5} Subsequently, on September 18, 2012, the trial court held another hearing on the
motion to dismiss.1 At the outset of the hearing, stand by counsel indicated that on the same day
as the hearing on the motion to dismiss, this Court issued its decision in State v. Shover, 9th Dist.
Summit No. 25944, 2012-Ohio-3788, which pertained to the Second Amendment. Stand by
counsel stated, “In light of that [decision], it’s my understanding that the Court wanted to, at this
point, bring Mr. Rondon back before the Court to be more specific in addressing the motion that
I had filed on August 22nd.” The trial judge once again denied the motion, but stated, “I want
the record to reflect that I do find the motion implicates the second amendment of the
constitution. In denying the motion, [] I'm applying the intermediate level of scrutiny[.]”
{¶6} Rondon filed a notice of appeal from the trial court’s September 6, 2012
sentencing entry. On appeal, Rondon raises two assignments of error.
II.
ASSIGNMENT OF ERROR I
OHIO’S PROHIBITION AGAINST CARRYING A FIREARM UNDER [R.C.]
2923.12 IS UNCONSTITUTIONAL IN THAT IT VIOLATES THE SECOND
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
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While both parties indicate that the trial court applied intermediate scrutiny in ruling on the
motion to dismiss, we note that the September 18, 2012 hearing occurred after the trial court had
issued a final judgment in this matter. Thus, to the extent the trial court reconsidered its prior
ruling on the motion, that ruling was a nullity. State v. Papczun, 9th Dist. Summit No. 26560,
2013-Ohio-1162, ¶ 8.
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ASSIGNMENT OF ERROR II
OHIO’S PROVISIONS FOR LICENSING TO PERMIT THE CARRYING OF A
CONCEALED WEAPON ARE UNCONSTITUTIONAL IN THAT THEY
VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT.
{¶7} In his first assignment of error, Rondon argues that R.C. 2923.12 violates the
Second and Fourteenth Amendments of the United States Constitution. In his second assignment
of error, Rondon argues that R.C. 2923.125, the statute which sets forth the requirements to
obtain a license to carry a concealed handgun, violates the Fourteenth Amendment of the United
States Constitution.
{¶8} The Supreme Court of Ohio has held that while a criminal defendant has, “the
right to either appear pro se or to have counsel, he has no corresponding right to act as co-
counsel on his own behalf.” State v. Thompson, 33 Ohio St.3d 1, 6-7 (1987). “The right to
counsel and the implied right to appear pro se are independent of each other and may not be
asserted simultaneously.” State v. Jackson, 9th Dist. Summit Nos. 24463, 24501, 2009-Ohio-
4336, ¶ 13, citing State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 32. In explaining the
inherent problems with hybrid representation, the Supreme Court noted that “situations may arise
in a hybrid representation environment where the accused and his ‘co-counsel’ disagree on
strategy,” and where difficult “management issues [arise] for the trial judge[.]” Martin at ¶ 33.
The most pressing concern, however, is that it is impossible to know “who was actually
responsible for the conduct of the defense[.]” Id. at ¶ 34.
{¶9} Here, the trial court issued a journal entry on July 27, 2012, indicating that
Rondon would be proceeding pro se, and that stand by counsel had been appointed. On August
22, 2012, stand by counsel filed a motion to dismiss on behalf of Rondon, and also took
responsibility for arguing the merits of the motion at a hearing that same day. While stand by
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counsel stated at the hearing that Rondon “would consent” to the appointment of stand by
counsel as defense counsel, Rondon never made an affirmative statement that he wished to
terminate his pro se representation. Moreover, the trial court did not inquire whether Rondon
wished to terminate his right to self-representation, nor did it issue an order formally stating that
Rondon had waived the right to self-representation that he had previously asserted.
{¶10} Subsequently, Rondon and stand by counsel appeared to sharply disagree
regarding whether Rondon was willing to plead no contest. Stand by counsel stated, “My
understanding * * * is my client * * * would plead no contest. He does not challenge the factual
basis of the charges -- of the factual basis leading to the charges in the indictment. He just
simply challenges the validity. For that reason he would plead no contest, if the court would
accept that plea. I think in doing so he understands all the rights that he is waiving and giving up
in entering a no contest plea, and he knows that the court will inquire of him at this point[.]” In
response to this statement by stand by counsel, Rondon replied, “Objection. Would you please
read me my rights that I’m waiving?” Moreover, Rondon did, in fact, dispute the factual nature
of the charges, stating, “I[‘d] like to clarify that I was not carrying a weapon.” When initially
asked how he intended to plead to the charge of carrying a concealed handgun, Rondon
responded that he did not want to enter a plea. Rondon subsequently entered pleas of “No
contest under coercion” to each count in the indictment.
{¶11} Much like the circumstances the Supreme Court confronted in Martin, this case
presents a scenario where it is difficult to decipher “who was actually responsible for the conduct
of the defense[.]” Martin at ¶ 34. As noted above, the right to counsel and the right to proceed
pro se with stand by counsel are “two rights [] independent of each other and may not be asserted
simultaneously.” Martin at ¶ 32. Despite the fact that the trial court had issued an order stating
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that Rondon had invoked his right to self-representation, it was stand by counsel who filed the
motion to dismiss and argued its merits before the trial court. Because stand by counsel was no
longer the counsel of record, however, the motion filed on Rondon’s behalf was not properly
before the trial court. Moreover, while stand by counsel indicated that Rondon intended to plead
no contest to the charges in the indictment, Rondon challenged the factual basis of the charges
and stated that he was pleading no contest “under coercion.” This Court has previously held that
when it is unmistakably apparent on the face of the record that the integrity of the plea process
was undermined, the plea cannot be deemed knowing, intelligent, and voluntary and it is
appropriate for this Court to sua sponte vacate the plea and remand for further proceedings. See,
e.g., State v. Palm, 9th Dist. Summit No. 22298, 2005-Ohio-1637; State v. Smith, 9th Dist.
Lorain No. 08CA009338, 2008-Ohio-6942; Rondon, 2011-Ohio-4938. Thus, under the
circumstances of this case, where Rondon’s plea was not entered knowingly, intelligently, and
voluntarily, Rondon’s plea must be vacated, and this matter must be remanded.
III.
{¶12} The judgment of the Summit County Court of Common Pleas is reversed and the
caused remanded for further proceedings consistent with this decision.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
MOORE, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
JEFFREY N. JAMES, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.