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State v. Rondon

Court of Appeals of Ohio, Ninth District

September 25, 2013

STATE OF OHIO Appellee
v.
ISRAEL RONDON Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 09 09 2905

JEFFREY N. JAMES, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

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 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- 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 ...

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