State v. Aguilar

[Cite as State v. Aguilar, 2011-Ohio-6008.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 10CA0051
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MELVIN AGUILAR COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE No. 10-CR-0264
DECISION AND JOURNAL ENTRY
Dated: November 21, 2011
MOORE, Judge.
{¶1} Appellant, Melvin Aguilar, appeals the decision of the Wayne County Court of
Common Pleas. This Court affirms.
I.
{¶2} On June 22, 2010, the Wayne County Grand Jury indicted Melvin Aguilar on two
counts of felonious assault in violation of R.C. 2903.11(A), each a felony of the second degree,
with accompanying firearm specifications. On September 17, 2010, Aguilar entered a change of
plea and pleaded guilty to one count of felonious assault with an accompanying firearm
specification. The second count and firearm specification were dismissed pursuant to the plea
agreement, and the State agreed not to oppose his request for the minimum sentence allowed by
law. A presentence investigation and victim impact statement were completed. The presentence
investigation acknowledged that Aguilar had felony charges pending in Cuyahoga County. On
October 19, 2010, the trial court sentenced Aguilar to five years of incarceration on the felonious
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assault count and to three years of incarceration on the firearm specification. It further ordered
that the sentences be served consecutively for a total of eight years of incarceration.
{¶3} Aguilar timely filed a notice of appeal. He raises three assignments of error for
our review.
II.
ASSIGNMENT OF ERROR I
“THE TRIAL COURT ERRED IN IMPOSING A SENTENCE OF EIGHT
YEARS (FIVE YEARS FOR FELONIOUS ASSAULT, PLUS A THREE YEAR
GUN SPECIFICATION) WHEN IT CONSIDERED AN IMPERMISSIBLE
FACTOR, THE NATURE OF AN UNADJUDICATED CHARGE IN
ANOTHER COUNTY.”
{¶4} In his first assignment of error, Aguilar argues that the trial court erred in
imposing an eight-year sentence of incarceration because it considered a charge pending in
another county. Specifically, he argues that the trial court violated his rights under the Sixth
Amendment to the United States Constitution.
{¶5} With respect to Aguilar’s contentions that his constitutional rights were violated,
he failed to preserve any objection on these issues at the trial court. “An appellate court need not
consider an error which a party complaining of the trial court’s judgment could have called, but
did not call, to the trial court’s attention at a time when such error could have been avoided or
corrected by the trial court.” State v. Williams (1977), 51 Ohio St. 2d 112, paragraph one of the
syllabus. Therefore, he forfeited these issues. Further, we do not reach the merits of his
contentions because he did not argue plain error to this Court. While a defendant who forfeits
such an argument still may argue plain error on appeal, this court will not sua sponte undertake a
plain-error analysis if a defendant fails to do so. See State v. Hairston, 9th Dist. No.
05CA008768, 2006-Ohio-4925, at ¶11.
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{¶6} Accordingly, we decline to address his first assignment of error.
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED IN ACCEPTING A GUILTY PLEA WHEN
[AGUILAR] ASKED A QUESTION ABOUT JUDICIAL RELEASE WHICH
WAS NOT ANSWERED AT THE PLEA HEARING.”
{¶7} In his second assignment of error, Aguilar argues that the trial court erred in
accepting his guilty plea because it had not answered his question about judicial release. We do
not agree.
{¶8} A defendant may seek to vacate his guilty plea either by filing a motion to
withdraw the plea in the trial court or upon direct appeal. State v. Sarkozy, 117 Ohio St. 3d 86,
2008-Ohio-509, paragraph one of the syllabus. A criminal plea must be entered knowingly,
voluntarily, and intelligently. Id. at ¶7. If it is not, enforcement of the plea is unconstitutional.
Id., quoting State v. Engle (1996), 74 Ohio St. 3d 525. In evaluating whether a right was violated,
strict compliance with Crim.R. 11 is preferred, but not required, provided that the court
substantially complied with the rule. State v. Nero (1990), 56 Ohio St. 3d 106, 108. “Substantial
compliance means that under the totality of the circumstances the defendant subjectively
understands the implications of his plea and the rights he is waiving.” Id. Furthermore, an error
involving a nonconstitutional right “will not invalidate a plea unless the defendant thereby
suffered prejudice.” Sarkozy at ¶20, quoting State v. Griggs, 103 Ohio St. 3d 85, 2004-Ohio-
4415, at ¶12. This requires a showing that, but for the error, the plea would not have been made.
Id. This Court, ordinarily, must review the totality of the circumstances surrounding the guilty
pleas to determine whether the defendant subjectively understood the effect of his pleas. Id.
{¶9} Aguilar argues that his plea was not entered knowingly because the trial court
failed to answer a question he had asked. The trial court inquired about the change of plea form
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and asked Aguilar if he was able to read and understand the form. Through an interpreter, he
answered in the affirmative. The court also asked if he had any questions about the form he had
signed. He stated, “It talks about judicial release in there. My question is would [I] be able to
take that chance?” The court asked, “Release, did you say release?” Aguilar’s trial counsel
clarified that the form has “a section on post release control” and that he had told Aguilar that he
was “more likely than not going to be deported because he’s a non citizen. However, if for some
reason he [were] allowed to remain in the U.S. he [would] be subject to post release control[.]”
The court clarified that this decision would be made by parole authority. The court asked, “Does
that answer his question?” Aguilar responded, “I have one more question.” He then asked if he
would be able to apply for a “TPS permit” while incarcerated, and he was told that it was an
immigration matter.
{¶10} Aguilar was then asked if he understood the charges, and he responded that he
did. The trial court asked him if he understood that the “sentence for felonious assault is two,
three, four, five, six, seven or eight years” and he responded that his lawyer had explained that to
him, and that he understood that the court could impose any one of those sentences. In addition,
he was subject to a mandatory three year sentence because of the weapon specification. Aguilar
replied, “I do understand the minimum sentence.” The court further clarified that the minimum
sentence it could impose was five years, and the maximum was eleven years. When asked if he
had any questions about that, he responded that he did not.
{¶11} The court also informed Aguilar that he would be subject to a mandatory three-
year period of postrelease control. He again responded that he understood. The court clarified
that because he was not a citizen of the United States, federal authorities may decide to deport
him, in which case he would not be subject to postrelease control. In addition, the conviction for
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which he was pleading guilty could have the consequences of deportation, exclusion from
admission to the United States, or denial of naturalization pursuant to the laws of the United
States. When asked if he had any questions about that, he responded that he did not. At this
point, Aguilar again raised a question regarding deportation and whether or not the trial court
could do anything to delay it. He was told that it was a federal law issue. The trial court went on
to inform Aguilar that “by pleading guilty today you give up certain Constitutional Rights.” This
includes the right to have a jury trial, the requirement that the State prove guilt beyond a
reasonable doubt, the right to confront witnesses, the right to have compulsory process for
obtaining witnesses in his favor, and the right not to testify against himself. He was asked about
each of these rights individually, and he responded to each that he understood. Aguilar affirmed
that he had not been promised anything in exchange for his plea, and that no one was forcing him
to plead guilty. Finally, the court said: “[H]aving been advised of your rights, having been
advised of the penalty you face, having been advised of post release control, and about the
possibility of deportation, do you still wish to plead guilty?” Aguilar responded that he did.
{¶12} The record suggests that the trial court and counsel understood Aguilar’s question
to relate to postrelease control, as opposed to judicial release, and the court answered the
question regarding postrelease control. When the court finished its explanation, Aguilar did not
follow up with a question redirecting the court to the subject of judicial release. Rather, he went
on to a question with a completely different subject matter. That would have suggested to the
court and to his attorney that he was satisfied with the answer previously given by the court.
More importantly, Aguilar “is incorrect that a trial court must discuss judicial release as part of a
plea agreement. ‘[T]he trial court need not inform a defendant about his eligibility for judicial
release unless it is incorporated into a plea bargain.’ State v. Simmons, 1st Dist. No. C-050817,
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2006-Ohio-5760, ¶13, citing State v. Mitchell, 11th Dist. No. 2004-T-0139, 2006-Ohio-618, and
State v. Cline, 10th Dist. No. 05AP-869, 2006-Ohio-4782.” State v. Gibson, 7th Dist. No. 07
MA 98, 2008-Ohio-4518, at ¶9. The record does not indicate that judicial release was a part of
Aguilar’s plea agreement. Thus, the court did not err in failing to discuss judicial release before
accepting his plea.
{¶13} Given the totality of the circumstances, particularly the fact that the trial court
complied with Crim.R. 11 and R.C. 2943.031, and was not required to discuss judicial release,
Aguilar has not demonstrated that “but for the error” in the trial court not addressing judicial
release, he would not have entered the guilty plea. Sarkozy at ¶20. Notably, he makes no
argument that he would not have otherwise entered the guilty plea. Accordingly, Aguilar’s
second assignment of error is overruled.
ASSIGNMENT OF ERROR III
“IN NOT OBJECTING TO THE TRIAL COURT’S ERROR IN SETTING
FORTH IMPERMISSIBLE GROUNDS FOR ITS SENTENCE, AND IN
FAILING TO RESPOND TO A QUESTION RAISED BY [AGUILAR] AT THE
PLEA HEARING, TRIAL COUNSEL WAS INEFFECTIVE.”
{¶14} In order to show ineffective assistance of counsel, Appellant must satisfy a two-
prong test. Strickland v. Washington (1984), 466 U.S. 668, 669. First, the court must determine
whether there was a “substantial violation of any of defense counsel’s essential duties to his
client.” State v. Bradley (1989), 42 Ohio St. 3d 136, 141, quoting State v. Lytle (1976), 48 Ohio
St.2d 391, 396, vacated in part on other grounds. Second, the court must determine if prejudice
resulted to the defendant from counsel’s ineffectiveness. Bradley, 42 Ohio St. 3d at 141-142,
quoting Lytle, 48 Ohio St. 2d at 396-397, vacated in part on other grounds. “Prejudice exists
where there is a reasonable probability that the trial result would have been different but for the
alleged deficiencies of counsel.” State v. Velez, 9th Dist. No. 06CA008997, 2007-Ohio-5122, at
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¶37, citing Bradley, 42 Ohio St.3d at paragraph three of the syllabus. This Court need not
address both Strickland prongs if Appellant fails to prove either one. State v. Ray, 9th Dist. No.
22459, 2005-Ohio-4941, at ¶10. Defendant bears the burden of proof, and must show that
“counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” State v. Colon, 9th Dist. No. 20949, 2002-Ohio-3985, at ¶48, quoting Strickland, 446
U.S. at 687.
{¶15} Initially we note that Aguilar has not explained how he was prejudiced by the
alleged errors. See State v. Mundt, 115 Ohio St. 3d 22, 2007-Ohio-4836, at ¶62, citing
Strickland, 466 U.S. at 687-88. To demonstrate prejudice, Aguilar “must demonstrate that there
is a reasonable probability that, but for his counsel’s error, he would not have pleaded guilty and
would have insisted on going to trial.” State v. Evans, 9th Dist. No. 09CA0049-M, 2010-Ohio-
3545, at ¶4. Aguilar makes no such argument and, therefore, fails to meet the second prong of
the Strickland test. “If an argument exists that can support [Aguilar’s contentions], it is not this
court’s duty to root it out.” Cardone v. Cardone (May 6, 1998), 9th Dist. Nos. 18349, at *8.
Furthermore, Aguilar has failed to demonstrate that his trial counsel’s performance was deficient.
{¶16} Aguilar argues that trial counsel was deficient because he failed to object to the
trial court’s reliance on the fact that he had pending charges in another county when it sentenced
him. He fails to identify any law in support of his conclusion. The trial court’s consideration of
this fact was appropriate because it was contained in the presentence investigation report made
pursuant to R.C. 2951.03. Additionally, under R.C. 2929.12(D)(1), the trial court was required
to consider whether Aguilar was awaiting trial on other charges at the time of committing the
offense. As such, his trial counsel was not deficient for failing to object to information properly
before the court for consideration.
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{¶17} Aguilar further argues that his trial counsel was deficient because he did not
object to the trial court’s failure to answer Aguilar’s question about judicial release. Again, he
fails to identify any law in support of his conclusion. As discussed above, the plea agreement
form discussed only postrelease control. In the context of Aguilar’s question, it appears that he
was actually inquiring about postrelease control. After the trial court answered his question in
the context of postrelease control, it asked Aguilar if that answered his question. Aguilar
continued to ask a separate question. After answering the second question, the trial court
afforded Aguilar the opportunity to ask additional questions. He did not do so. Aguilar has
failed to demonstrate that his counsel’s performance was deficient for failing to object to the trial
court’s answer regarding post-release control rather than judicial release.
{¶18} Aguilar’s third assignment of error is overruled.
III.
{¶19} Aguilar’s assignments of error are overruled. The judgment of the Wayne County
Court of Common Pleas is affirmed.
Judgment affirmed.
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 Wayne, 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
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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 Appellant.
CARLA MOORE
FOR THE COURT
WHITMORE, P. J.
CONCURS
DICKINSON, J.
CONCURS, SAYING:
{¶20} I concur in the majority’s judgment and most of its opinion. I would, however,
reach the merits of Mr. Aguilar’s first assignment of error and conclude that the trial court did
not commit plain error by considering the charge pending against him in Cuyahoga County.
APPEARANCES:
GEORGE W. MACDONALD, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and LATECIA E. WILES, Assistant Prosecuting
Attorney, for Appellee.