State v. Rondon ( 2011 )

[Cite as State v. Rondon, 2011-Ohio-4938.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 25447
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 28, 2011
BELFANCE, Presiding Judge.
{¶1} Defendant-Appellant Israel Rondon appeals from the judgment of the Summit
County Court of Common Pleas. For the reasons set forth below, we sustain his assignments of
error in part, and remand the matter for proceedings consistent with this opinion.
I.
{¶2} In October 2009, Mr. Rondon was indicted on one count of carrying concealed
weapons in violation of R.C. 2923.12(A)(2), one count of carrying concealed weapons in
violation of R.C. 2923.12(A)(1), one count of operating without a valid license in violation of
R.C. 4510.12, and one count of speeding in violation of R.C. 4511.21. At the change of plea
hearing, the State indicated that Mr. Rondon was entering a no contest plea in order to preserve a
constitutional challenge for appeal. The trial court, the State, and Mr. Rondon’s standby counsel
led Mr. Rondon to believe that he would preserve the issue for appeal by proffering his argument
following his plea. Thus, Mr. Rondon pleaded no contest to the charges, proffered his
2
constitutional challenge, and was then sentenced to an aggregate term of twelve months, which
was suspended on the condition that Mr. Rondon complete two years of community control.
{¶3} Mr. Rondon has appealed, raising two assignments of error for our review, which
we will address together.
II.
ASSIGNMENT OF ERROR I
“OHIO’S PROHIBITION AGAINST CARRYING A FIREARM UNDER OHIO
REVISED CODE SECTION 2923.12 IS UNCONSTITUTIONAL IN THAT IT
VIOLATES THE SECOND AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.”
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.”
{¶4} Mr. Rondon asserts in his first assignment of error that R.C. 2923.12 is
unconstitutional as it violates the Second and Fourteenth Amendments to the United States
Constitution. Mr. Rondon asserts in his second assignment of error that R.C. 2923.125 violates
the Fourteenth Amendment as it does not contain a provision whereby indigent persons can have
the licensing fee or the cost of taking the necessary classes waived. As Mr. Rondon has failed to
preserve these issues for appeal for the reasons detailed below, we decline to further address the
merits of these arguments.
{¶5} “It is well established that ‘an appellate court should not consider questions which
have not been properly raised in the trial court and upon which the trial court has had no
opportunity to pass.’” State v. Holmes, 9th Dist. No. 22938, 2006-Ohio-2175, at ¶4, quoting
State v. Long (1978), 53 Ohio St.2d 91, 95. In the instant matter, Mr. Rondon did not challenge
3
the constitutionality of either statute in the trial court. Instead, it is clear from the record that Mr.
Rondon pleaded no contest with the mistaken understanding that he could challenge the
constitutionality of the statutes for the first time on appeal. Mr. Rondon at no point requested or
received a ruling from the trial court on the constitutionality of the statutes he now challenges.
Accordingly, there is no decision on the constitutionality of these statutes for this Court to
review. Thus, Mr. Rondon has not preserved this argument for appeal, nor has he argued plain
error. See, e.g., State v. Smiley, 9th Dist. No. 23815, 2008-Ohio-1915, at ¶28.
{¶6} Nonetheless, while Mr. Rondon has not preserved his constitutional argument,
because the trial court, the State, and his standby counsel led him to believe his no contest plea
along with his proffered argument following his plea preserved the issue, we must sustain his
assignments of error in part. See State v. Smith, 9th Dist. No. 08CA009338, 2008-Ohio-6942, at
¶¶10-12. Here, it is clear that Mr. Rondon pleaded no contest because he believed that, by
proffering his argument following his plea without actually seeking a ruling from the trial court,
he still could raise the issue on appeal. Further, it is equally clear that Mr. Rondon possessed this
belief because the State, his standby counsel, and the trial court either reinforced that belief or
failed to correct it. Thus, Mr. Rondon’s plea was not knowingly and intelligently made. See id.
at ¶8, citing State v. Engle (1996), 74 Ohio St.3d 525. Therefore, “[t]his Court has no choice but
to vacate the conviction and plea, and remand this case to the trial court. [Mr. Rondon] shall
have the option of proceeding to trial or entering a new plea, fully advised of his rights.” Smith
at ¶11.
{¶7} Mr. Rondon’s “assignment[s] of error [are] sustained, insofar as the trial court
convicted him upon this erroneously conditioned no contest plea.” Id. at ¶12.
4
III.
{¶8} In light of the foregoing, Mr. Rondon’s assignments of error are sustained in part.
The judgment of the Summit County Court of Common Pleas is reversed, and the matter is
remanded for proceedings consistent with this opinion.
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.
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(E). 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.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR
5
APPEARANCES:
JEFFREY N. JAMES, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.