[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.
                                                 3


       {¶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
                                                 4


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
                                                 5


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,
                                                6


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
                                                  7


¶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.
                                                 8


       {¶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
                                                9


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.
