[Cite as State v. Zazzara, 2019-Ohio-662.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.       18CA0007-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
RYAN ZAZZARA                                          COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   15CR0248

                                  DECISION AND JOURNAL ENTRY

Dated: February 25, 2019



        CARR, Judge.

        {¶1}     Appellant, Ryan Zazzara, appeals the judgment of the Medina County Court of

Common Pleas. This Court affirms.

                                                 I.

        {¶2}     In 2015, the Medina County Grand Jury indicted Zazzara on one count of trespass

in a habitation when a person is present or likely to be present, a felony of the fourth degree.

After initially pleading not guilty at arraignment, Zazzara ultimately pleaded guilty to the charge.

Zazzara and the State agreed on a jointly-recommended sentence of a nonresidential community

control sanction with a further recommendation that any violation would result in an 18-month

prison sentence. In its September 16, 2015 sentencing entry, the trial court imposed a three-year

community control sanction and outlined a number of conditions. The trial court further stated

that “[u]pon any violation of this sentence, the Court shall sentence [Zazzara] to a prison term of

eighteen (18) months.”
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       {¶3}    On January 27, 2017, Zazzara’s probation officer filed a complaint alleging that

Zazzara had violated the terms and conditions of his supervision. After initially denying the

allegation, Zazzara entered a plea of admission. The trial court ordered that Zazzara undergo an

evaluation for the Community Based Correctional Facility (“CBCF”) program. Subsequently,

upon recommendation of the Medina County Adult Probation Department, the trial court ordered

Zazzara to complete the CBCF program.

       {¶4}    On December 21, 2017, Zazzara’s probation officer filed another complaint

alleging that Zazzara had violated the terms and conditions of his supervision by failing to

complete his required community service hours. Zazzara entered a plea of admission. The trial

court imposed an 18-month prison sentence with credit for time served.

       {¶5}    On appeal, Zazzara raises three assignments of error.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE GRAND JURY INDICTMENT FAILED TO INCLUDE A FINDING OF
       PROBABLE CAUSE AND IS THEREFORE VOID HAVING FAILED ITS
       PRIMARY PURPOSE.

       {¶6}    In his first assignment of error, Zazzara contends that the indictment in this case is

void because it did not specifically state a finding of probable cause. This Court disagrees.

       {¶7}    Zazzara is barred from raising a challenge to the indictment at this time. “‘Under

the doctrine of res judicata, any issue that was or should have been litigated in a prior action

between the parties may not be relitigated.’” State v. Zhao, 9th Dist. Lorain No. 03CA008386,

2004-Ohio-3245, ¶ 7, quoting State v. Meek, 9th Dist. Lorain No. 03CA008315, 2004-Ohio-

1981, ¶ 9. Zazzara maintains that this Court may address the issue because it constitutes “a

fundamental and systematic error.” However, under similar circumstances where an appellant
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argued that the lack of a specific probable cause finding rendered an indictment void, this Court

noted that objections based on defects in the indictment must be raised prior to trial pursuant to

Crim.R. 12(C)(2). State v. Stevens, 9th Dist. Medina Nos. 16CA0033-M, 16CA0034-M, 2017-

Ohio-5482, ¶ 7. Here, Zazzara neither raised this issue in the trial court, nor did he attempt to

raise the issue in a direct appeal from the September 16, 2015 sentencing entry. Under these

circumstances, where Zazzara had an opportunity to raise the issue and he declined to do so, he

is now precluded from raising the issue under the doctrine of res judicata.

       {¶8}    Zazzara’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING
       APPELLANT TO THE MAXIMUM EIGHTEEN MONTHS IN PRISON ON
       HIS FIRST EVER FELONY CONVICTION AND HIS FIRST EVER PRISON
       SENTENCE, AND WHEN THE FACTS AND CIRCUMSTANCES OF HIS
       CRIME WERE NOT THE WORST LEVEL OF THE OFFENSE AND DID NOT
       WARRANT THE MAXIMUM PRISON SENTENCE.

       {¶9}    In his second assignment of error, Zazzara contends that the record is devoid of

clear and convincing evidence to support the trial court’s decision to impose a maximum 18-

month term of incarceration in this case. Zazzara maintains that he was a first-time felony

offender with a mental illness and that he did not commit the most serious form of the offense.

This Court disagrees.

       {¶10} Generally speaking, a defendant cannot challenge a jointly-recommended

sentence on appeal. State v. Deniro, 9th Dist. Summit No. 28263, 2017-Ohio-1025, ¶ 22. R.C.

2953.08(D)(1) states that “[a] sentence imposed upon a defendant is not subject to review under

this section if the sentence is authorized by law, has been recommended jointly by the defendant

and the prosecution in the case, and is imposed by a sentencing judge.”            A sentence is

“authorized by law * * * only if it comports with all mandatory sentencing provisions.” State v.
                                                 4


Hamlin, 9th Dist. Summit No. 27650, 2016-Ohio-1196, ¶ 7, citing State v. Underwood, 124 Ohio

St.3d 365, 2010-Ohio-1, paragraph two of the syllabus.

       {¶11} A review of the transcript reveals that the sentence in this matter was jointly

recommended by the State and the defendant. When the parties appeared for the change-of-plea

hearing, the State set out the terms of the plea agreement and further stated that “we are agreeing

to join the Defense in recommending nonresidential community control sanctions, meaning

probation, without any incarceration at the time of sentencing. However, the parties are agreeing

that upon a violation, we are recommending that the Court say that upon a violation, [Zazzara]

would face an 18-month prison sentence.” Defense counsel subsequently confirmed that “[a]ll of

the specific terms that [the assistant prosecutor] has stated are the terms that we agreed upon.”

Zazzara then pleaded guilty to the charge of trespass in a habitation when a person is present or

likely to be present. The trial court accepted Zazzara’s guilty plea, found him guilty, and

proceeded to sentencing. The trial court indicated that it would adopt and impose the jointly-

recommended sentence. In its sentencing entry, the trial court imposed a three-year term of

nonresidential community control sanctions and further noted that it would impose an 18-month

prison sentence if Zazzara violated the terms of community control.

       {¶12} Under these circumstances, this Court is precluded from reaching the merits of

Zazzara’s assignment of error. Zazzara challenges his sentence on the basis that an 18-month

prison sentence is excessive in light of the record in this matter. However, in addition to the fact

that the parties jointly recommended the sentence in this matter, Zazzara acknowledges in his

merit brief that his sentence was not contrary to law. There is no dispute that the sentence was

imposed by a sentencing judge. Thus, while Zazzara maintains that his sentence was not
                                                5


supported by the record, this Court lacks authority to address the merits of his argument pursuant

to R.C. 2953.08(D)(1).

       {¶13} The second assignment of error is overruled.

                               ASSIGNMENT OF ERROR III

       IS A TRIAL COURT PERMITTED TO CONSIDER AND UTILIZE
       INFORMATION OUTSIDE THE FRAMEWORK OF SENTENCING
       HEARING, OUTSIDE AN OPEN COURT, AND WITHOUT DISCLOSING
       SUCH INFORMATION TO THE DEFENDANT IN SENTENCING
       DEFENDANT TO PRISON? (SIC)

       {¶14} In support of his final assignment of error, Zazzara notes that “[i]n all cases in the

mental health intervention court, the treatment team and probation officers meet separately and

privately with the judge to discuss cases and address issues from the mental diagnosis through

the allegations of the probation violation.” Zazzara further contends that the defendant is not

present at these meetings and that the discussion is not recorded for the purposes of appellate

review. Although Zazzara discusses the general practices in mental health intervention court, he

has not explained how the trial court’s procedure constituted reversible error in this case. An

appellant has the burden of affirmatively demonstrating error on appeal and providing the

relevant portions of the record evincing that error. State v. Figueroa, 9th Dist. Lorain No.

15CA010856, 2016-Ohio-6969, ¶ 8. Here, Zazzara has neither cited legal authority in support of

his argument pursuant to App.R. 16(A)(7), nor has he supported his position with citations to the

trial court record. This Court has often stated that “an appellant’s assignment of error provides

this Court with a roadmap to guide our review.” Akron v. Johnson, 9th Dist. Summit No. 26047,

2012-Ohio-1387, ¶ 3. Under circumstances such as this, where Zazzara has not identified in the

record the error on which the assignment of error is based, we decline to chart our own course.
                                                 6


Id. at ¶ 3, citing App.R. 12(A)(2).      It follows that Zazzara’s final assignment of error is

overruled.

                                                III.

       {¶15} Zazzara’s assignments of error are overruled.         The judgment of the Medina

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 Medina, 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(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 Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT



TEODOSIO, P. J.
HENSAL, J.
CONCUR.
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APPEARANCES:

MICHAEL J. CALLOW, Attorney at Law, for Appellant.

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.
