[Cite as State v. Rondon,

.]

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 2

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- 3

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,

, 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.

1 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,

. 4

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,

(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,

,

, ¶ 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 5

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 6

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,

; State v. Smith, 9th Dist.

Lorain No. 08CA009338,

; Rondon,

. 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. 7

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.