State of Ohio v. Jacob Zambrano
Court of Appeals No. L-19-1224
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
June 4, 2021
[Cite as State v. Zambrano, 2021-Ohio-1906.]
ZMUDA, P.J.
Trial Court No. CR0201901627
Decided: June 4, 2021
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Julia R. Bates, Lucas County Prosecuting Attorney, and Kevin M. Pituch, Assistant Prosecuting Attorney, for appellee.
Adam H. Houser, for appellant.
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ZMUDA, P.J.
I. Introduction
{¶ 1} This appeal challenges the validity of a no contest plea to an amended count of attempted, aggravated arson in violation of
II. Background and Procedural History
{¶ 2} After an incident at his girlfriends’ home on March 31, 2019, appellant was indicted on three counts of aggravated arson in violation of
{¶ 3} As part of the hearing on appellant‘s no contest plea, the trial court thoroughly explained the application of
Trial Court: It‘s a lot of language, a lot of code sections, but, in general, lay terms, they are going to have to consider releasing you at the minimum term, looking at your behavior, looking at other things that they
consider to be something that they can rebut, which means get past, the presumption that you get out and then at no point can they keep you past the maximum term; do you understand that?
Appellant indicated he understood, and after the trial court went through the required
{¶ 4} The trial court imposed the agreed-upon sentence of a minimum of three years and a maximum of four and a half years, as provided by
{¶ 5} Appellant filed a timely appeal.
III. Assignments of Error
{¶ 6} Appellant now challenges the judgment, assigning the following as error:
- Appellant‘s Due Process Rights Were Violated As The Plea Was Not Knowingly And Voluntarily Made as the Court Did Not Comply With Criminal Rule 11.
- The Trial Court Committed Plan [sic.] Error When It Allowed Appellant To Be Sentenced Under An Unconstitutionally Vague Law.
Appellant Received Ineffective Assistance of Counsel as His Trial Counsel Failed to Object to Appellant Being Sentenced in Violation of Due Process and to an Unconstitutionally Vague Law.
IV. Analysis
{¶ 7} In his first assignment of error, appellant argues his plea was not knowing, intelligent, and voluntary, because he could not possibly understand the application of minimum and maximum terms under
{¶ 8} Appellant did not seek to withdraw his plea or otherwise raise a challenge in the trial court. His failure to raise the issue, however, is not waiver, but forfeiture by failing to preserve an objection. Forfeiture “does not extinguish a claim of plain error under
{¶ 9} “When a criminal defendant seeks to have his conviction reversed on appeal, the traditional rule is that he must establish that an error occurred in the trial-court proceedings and that he was prejudiced by that error.” Dangler at ¶ 13, citing State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 14-15 (additional citations omitted.). However, an appellant need not demonstrate prejudice in challenging a criminal plea when a trial court fails to address the constitutional rights set forth in
{¶ 10} Here, appellant argues the trial court failed to ensure understanding of the maximum penalty, as required by
{¶ 11} Based on the written plea and the trial court‘s thorough explanation of the minimum and maximum sentence, pursuant to
{¶ 12} In arguing his plea was not knowingly, intelligently, or voluntarily made, appellant challenges only the trial court‘s lack of certainty regarding how the minimum and maximum sentences might ultimately be imposed, or how earned time credit might
{¶ 13} In his second and third assignments of error, appellant challenges the enforceability of
{¶ 14} In Maddox, we found both issues not ripe for review, with this decision in conflict with decisions of the Second and Twelfth District Appellate Courts and accepted by the Ohio Supreme Court for review. In addition to Maddox, we have addressed multiple constitutional challenges and found the issue not ripe for review in Velliquette; State v. Montgomery, 6th Dist. Lucas No. L-19-1202, 2020-Ohio-5552; State v. Sawyer, 2020-Ohio-6980, 165 N.E.3d 844 (6th Dist.); State v. Acosta, 6th Dist. Lucas Nos. L-20-1068, L-20-1069, 2021-Ohio-757; State v. Bothuel, 6th Dist. Lucas No. L-20-1053, 2021-Ohio-875; State v. Savage, 6th Dist. Lucas No. L-20-1073, 2021-Ohio-1549; and State v. Crenshaw Rottman, 6th Dist. Lucas No. L-20-1061, 2021-Ohio-1618. In Velliquette, we noted that the “possibility” of an extended prison term might never be realized, and that ripeness issue remains pending with the Ohio Supreme Court.
{¶ 15} Appellant attempts to avoid this precedent by arguing his case is distinguishable, because
{¶ 16} As in Maddox, the issue is not ripe for review because appellant “has not yet been subject to the application of these provisions, as he has not yet served his minimum term, and therefore has not been denied release at the expiration of his minimum term of incarceration.” Maddox at ¶ 7. Furthermore, as the issue is not ripe for review, appellant‘s trial counsel could not be ineffective in failing to raise a premature and therefore meritless objection. See State v. Conkright, 6th Dist. Lucas No. L-06-1107, 2007-Ohio-5315, ¶ 50 (no ineffective assistance in failing to file a meritless motion).
{¶ 17} Accordingly, based on our precedent, we find appellant‘s second and third assignments of error not well-taken as they present issue not yet ripe for review.
{¶ 18} For the forgoing reasons, we affirm the judgment of the Lucas County Court of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
JUDGE
Christine E. Mayle, J.
JUDGE
Gene A. Zmuda, P.J. CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.