State v. Zarlengo
| Decision Date | 15 December 2021 |
| Docket Number | 20 MA 0036 |
| Citation | 182 N.E.3d 458 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Manny ZARLENGO, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Atty. Ralph Rivera, Assistant Chief, Criminal Division, Office of the Mahoning County Prosecutor, 21 West. Boardman St., 6th Floor, Youngstown, Ohio 44503, Atty. Edward A. Czopur, Assistant Mahoning County Prosecutor, Mahoning County Prosecutor's Office, 21 West Boardman Street, Youngstown, Ohio 44503, for Plaintiff-Appellee.
Atty. James R. Wise, Hartford & Wise, Co., LPA, 91 W. Taggart, PO Box 85, East Palestine, Ohio 44413, for Defendant-Appellant.
BEFORE: Carol Ann Robb, Cheryl L. Waite, Judges. Michael D. Hess, Judge of the Fourth District Court of Appeals, Sitting by Assignment.
OPINION AND JUDGMENT ENTRY
{¶1} Defendant-Appellant Manny Zarlengo appeals after an agreed sentence was imposed in the Mahoning County Common Pleas Court following his guilty plea to multiple counts of aggravated robbery with firearm specifications. Appellant challenges the juvenile court's mandatory bindover decision by arguing the state's probable cause evidence was insufficient to prove his identity as a participant in each of the robberies and lacked credibility. We agree with the state's assertion that these probable cause arguments are non-jurisdictional and are thus waived when a defendant pleads guilty. The trial court's final judgment imposing sentence is therefore affirmed.
{¶2} Appellant was charged in the juvenile court with eleven counts of aggravated robbery with firearm specifications for armed robberies occurring at five Youngstown stores in October 2013. To accomplish mandatory bindover for trial as an adult, the preliminary hearing to determine probable cause was held on June 10, 2014. The child stipulated he was sixteen at the time of the alleged acts. The state presented testimony from a detective, some of the store employees, a neighbor to a store, and a juvenile who was one of Appellant's co-defendants (J.M.).
{¶3} On October 4, 2013, the police were advised Dollar General on McGuffey Road was robbed by two men with guns while a driver of a gold vehicle waited for them. According to a detective's testimony, the manager opened the safe for the robbers. (Tr. 147-148). The store's video portrayed the two robbers pointing guns at the manager and filling a black bag. J.M. testified he traveled with Appellant and "Slim" to a location near Dollar General on the east side in Slim's "tannish" colored Chevy (with Slim driving). (Tr. 110-111). They had a plan to rob the Dollar General. (Tr. 111-112). He said Slim and Appellant both had guns, and he was unsure which direction they went when they exited the car. (Tr. 111-113). J.M. drove them away from the scene after they ran back to the car with a black bag. (Tr. 111-112). When they returned to his house, he observed money in the bag which he believed came from Dollar General "because that was the plan." (Tr. 112). J.M. claimed he did not know Slim's real name. (Tr. 110).
{¶4} On October 8, 2013, the police were advised Family Dollar was robbed by two men with guns and bandanas on their faces. The store's video confirmed there were two men. The detective testified: a shot was fired down an aisle; a bullet was recovered from a cooler; and a neighbor informed the police a gold or tan Chevy had been parked in a lot behind the store. (Tr. 147). J.M. testified Appellant fired a .32 caliber revolver into the air after they entered Family Dollar. (Tr. 119-121). J.M. admitted they took money from the register and the safe. (Tr. 120). He also confirmed they fled to Slim's car which was on a side street but claimed Slim was not waiting in the car.
{¶5} On cross-examination, defense counsel asked J.M. if he told the police there was a third individual waiting in the car and J.M. alternatively said: he did not say this; he did not remember so stating; and this portion of his statement was untrue. (Tr. 125-126, 131-133). A neighbor (who was the block watch captain) testified an older goldish car (similar to a Chevy Nova) aroused his suspicions due to where it was parked (at the lot where he mowed). He testified two young and unfamiliar males walked past him while he was going to cut grass and a third male remained in the vehicle. He soon heard sirens and reported the sighting when the police asked if he saw anything suspicious. (Tr. 84-89).
{¶6} On October 12, 2013, the police were advised Taco Bell was robbed by two men with guns who were wearing bandanas on their faces. The detective said the initial report described a gold or tan Chevy. (Tr. 148). A Taco Bell employee testified there were three employees present when two males entered wearing bandanas up to the nose and hats; they appeared to be 16 to 20 years old. (Tr. 54). He saw a gun pointed at his manager and identified Appellant in court as the person who threatened to start shooting if the safe was not opened. (Tr. 55, 57-58). Taco Bell's assistant manager testified the robbery occurred at 2:40 p.m. He pointed out the perpetrators’ faces were visible from nose to forehead and one robber was wearing an orange Texas Longhorns hat. He immediately went to open the safe upon hearing the demand and noticed a gun in his peripheral vision. (Tr. 68-69). J.M. confirmed he and Appellant entered Taco Bell with masks on their faces with a joint plan to commit a robbery. (Tr. 114-115). He said Appellant used a .32 caliber revolver and Slim was not with them. (Tr. 115-116).
{¶7} On October 17, 2013, the police were advised of a robbery at Subway by two men with guns. The detective testified radio traffic reported a gold or tannish Chevy was involved. (Tr. 149). The owner of the store testified he was present with two employees and customers when two young males (aged 15 to 20 years old) entered the store with guns and their faces covered below the nose. (Tr. 30-31, 34, 40). The owner said he hit the silent panic button and then opened the register after a gun was pointed at his head. (Tr. 30-32). The perpetrators put the cash register drawer in a bag they brought with them. When they demanded the money in the safe, the owner informed them it was on a time delay. The perpetrators were upset and threatened to start shooting people; the owner saw a gun pointed at a female employee and "heard the gun click as if they pulled the trigger but it didn't fire." (Tr. 32). This female employee's testimony confirmed a perpetrator held a gun to her head while another retrieved the register drawer. (Tr. 44). She said threats were made to kill her if the safe was not opened. (Tr. 45). When the perpetrators realized the safe would not open, they robbed the customers at gunpoint. (Tr. 33).
{¶8} J.M. testified he and Appellant committed the Subway robbery, confirming they took wallets because the safe was taking too long. J.M. said he had a .32 caliber revolver during the robbery. (Tr. 118). He initially testified Slim was not involved; however, he later acknowledged Slim (who used his own gun for the Dollar General robbery) was involved as the driver for the Subway robbery.
{¶9} After the robbery, the owner of Subway found Appellant's Facebook page and concluded this was the individual who robbed him. (Tr. 37). He identified Appellant at the hearing and said having a gun pointed at his head helped imprint the memory; he said he recognized him by the eyes and nose, noting he could also see his forehead. (Tr. 33-34, 40). The store video confirmed a gun was pointed at the owner's face prior to the gun being pointed at the female employee's head.
{¶10} On October 18, 2013 (the day after the Subway robbery), witnesses reported to police at approximately 4:00 p.m. three individuals robbed McDonald's in a similar manner while another individual waited in a car fitting the description from the other robberies. The clothes and bandanas were also described as similar to the other robberies. (Tr. 150). J.M. testified he was not involved in the McDonald's robbery. (Tr. 118). The manager of McDonald's testified she was in the back room when the robbers entered the store. When she came out, a male came behind the counter, pointed a gun at her face, and demanded she open the safe. (Tr. 77). She kept her head down while waiting for the employee with the combination to open the safe. She noticed this gunman lowered his gun to put the drawers from the safe into a bag while he was yelling to his two accomplices about the other drawers. (Tr. 77-78). She noted customers in the parking lot called the police and employees said there was a fourth accomplice. (Tr. 78-79). She only saw one gun; she started to indicate others were armed but was not permitted to testify as to what she learned about other guns. (Tr. 80).
{¶11} The detective testified "wanted posters" were produced from the Family Dollar video, which generated tips providing various names, including Appellant's name; one of the other names also led the officers to a woman who identified Appellant. (Tr. 151). She said Appellant was staying with J.M. and directed the officers to a house on Midlothian Boulevard. (Tr. 152). A gold Chevy was parked in the drive of the house. Appellant, J.M., and Joseph Mascarella were in the house. The car was registered to Joseph Mascarella's relative, and J.M.’s testimony indicated the car belonged to Mascarella.
{¶12} J.M.’s mother gave the police consent to search the house. The police recovered hats and sweatshirts matching the clothing used in the robberies; they also discovered the cash drawers from all of the robberies. (Tr. 152). The three males were arrested. The detective testified that J.M. commented "we had gotten the right three guys." During an interview on October 19, 2013, J.M. refused to give a further statement against the other two males while admitting to his own participation in some of the robberies. (Tr. 130, 153).
{¶13} The detective opined Mascarella was the adult...
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...hearing is moot or cured after indictment and is not jurisdictional." State v. Zarlengo, 7th Dist. Mahoning No. 20 MA 0036, 2021-Ohio-4631, 182 N.E.3d 458, fn. 3. "The only purpose of a preliminary hearing is determine whether sufficient facts exist to warrant the court in binding the accus......