[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

v. Maldonado, Slip Opinion No. 2024-Ohio-2652.]

 

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2024-OHIO-2652

THE STATE OF OHIO, APPELLEE, v. MALDONADO, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. Maldonado, Slip Opinion No. 2024-Ohio-2652.]

Appellate procedure—App.R. 26(A)(2) requires that a panel decision precede en 

banc consideration—Court of appeals erred in conducting en banc review 

before panel decision was released—Appellant failed to show he was 

prejudiced by court of appeals’ error—Court of appeals’ judgment 

affirmed.

(No. 2023-0480—Submitted January 9, 2024—Decided July 16, 2024.)

APPEAL from the Court of Appeals for Cuyahoga County,

No. 110655, 2023-Ohio-522.

__________________

DETERS, J., authored the opinion of the court, which KENNEDY, C.J., and 

DEWINE and BRUNNER, JJ., joined. STEWART, J., concurred in judgment only. 

FISCHER, J., dissented, with an opinion joined by DONNELLY, J. 
SUPREME COURT OF OHIO

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DETERS, J.

{¶ 1} Elvin Maldonado successfully challenged the imposition of a 

sentence for a gun specification and his designation as a violent offender. When 

his case was remanded to the trial court for vacation of the gun-specification 

sentence and the violent-offender registration requirement, Maldonado sought a

hearing. The common pleas court refused to hold a hearing and issued a sentencing 

entry as directed by the court of appeals. Maldonado appealed to the Eighth District 

Court of Appeals. At issue was whether Maldonado had a right to a hearing when 

his case was remanded to vacate a part of his sentence and whether he had been 

given the proper jail-time credit. His appeal was submitted to a panel of three 

judges. But before the panel issued its decision, the court of appeals determined 

that there was a conflict between two of its prior decisions—one from 2020 and 

one from 2006—on one of the issues raised by Maldonado, and it decided sua 

sponte to resolve the issue en banc. The en banc court held that a person in 

Maldonado’s position had no right to a resentencing hearing, and the panel affirmed 

the trial court’s judgment based on the en banc court’s decision.

{¶ 2} Maldonado contends that the court of appeals violated App.R. 

26(A)(2) when it decided the issue in his appeal en banc before the panel entered a 

judgment. We agree. The rule requires that a panel decision precede en banc 

consideration. Nevertheless, because Maldonado is unable to demonstrate that he 

was prejudiced by the court of appeals’ action, we affirm the judgment.

Maldonado is convicted and sentenced

{¶ 3} Following a jury trial in 2019, Maldonado was convicted on four 

counts of felonious assault, with an accompanying “drive-by-shooting” firearm 

specification for each count, and one count of discharging a firearm on or near 

prohibited premises, with an accompanying “drive-by-shooting” firearm 

specification. The trial court imposed an aggregate sentence of nine years and 

ordered Maldonado to register as a violent offender.
January Term, 2024

3

{¶ 4} Maldonado appealed to the Eighth District, which concluded that the 

trial court erred when it convicted Maldonado of the drive-by-shooting 

specification accompanying the discharging-a-firearm count and when it ordered 

Maldonado to register as a violent offender. State v. Maldonado, 2021-Ohio-1724, 

¶ 17, 52-54 (8th Dist.). The case was remanded to the trial court for resentencing

so that the specification and registration requirement could be vacated. Id. at ¶ 63.

{¶ 5} On remand, the trial court denied Maldonado’s request to appear for 

a resentencing hearing and issued a sentencing entry vacating the sentence for the 

drive-by-shooting firearm specification and the order that Maldonado register as a 

violent offender. In all other respects, the sentence remained the same.

{¶ 6} Maldonado again appealed to the Eighth District, this time arguing 

that the trial court erred when it resentenced him without holding a hearing and 

when it failed to include an updated calculation of jail-time credit in the entry. 

2023-Ohio-522, ¶ 18, 20.

{¶ 7} The appeal was assigned to a three-judge panel and was scheduled to 

be considered by the court on March 1, 2022. On February 23, 2023, the court of 

appeals issued a judgment entry announcing:

Sua sponte, the court considered the panel’s proposed 

decision in this case to resolve a conflict between State v. Howard, 

8th Dist. Cuyahoga No. 87490, 2006-Ohio-6412, and State v. 

Jarmon, 8th Dist. Cuyahoga No. 108248, 2020-Ohio-101. 

Accordingly, the court accepted this matter en banc with respect to 

the issue of whether a defendant has a right to be present at a hearing, 

or other proceedings, under Crim.R. 43(A), when a case is remanded 

for resentencing to vacate and delete any aspect of a sentence.
SUPREME COURT OF OHIO

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That same day, the court of appeals entered a decision en banc, confirming the rule 

set forth in Howard that “[u]nder Crim.R. 43(A), a defendant’s presence is not 

required at any proceeding solely intended to vacate or delete any portion of a 

sentence, punishment, penalty, or other criminal sanction upon remand from a 

direct appeal” and overruling Jarmon. 2023-Ohio-522 at ¶ 13.

{¶ 8} Immediately below the en banc decision was the decision of the threejudge panel that had been assigned Maldonado’s appeal. See id. at ¶ 14-26. Based 

on the reasoning set forth in the en banc decision, the panel overruled Maldonado’s 

assignment of error that claimed the trial court erred when it did not conduct a 

sentencing hearing at which Maldonado’s presence was required. Id. at ¶ 19. It 

also overruled Maldonado’s assignment of error regarding the calculation of jailtime credit. Id. at ¶ 24.

{¶ 9} Maldonado appealed to this court, and we accepted the following 

proposition of law: “A court of appeals may not consider a case en banc until after 

a decision has been released by a three-judge panel of the court.” See 2023-Ohio2348.

1

The Eighth District did not follow the procedure of App.R. 26(A)(2)

{¶ 10} “Courts of appeals have discretion to determine whether an 

intradistrict conflict exists; if the judges of a court of appeals determine that two or 

more decisions of the court on which they sit are in conflict, they must convene en 

banc to resolve the conflict.” McFadden v. Cleveland State Univ., 2008-Ohio4914, paragraph two of the syllabus. At the time McFadden was decided, there was

no rule for how en banc proceedings were to be initiated and conducted, but this 

court has since promulgated App.R. 26(A)(2).

{¶ 11} Maldonado maintains that the court of appeals improperly 

considered the issue in his case en banc without the assigned panel’s having first 

1. We declined jurisdiction over Maldonado’s two other propositions, which challenged the merits 

of the en banc decision.
January Term, 2024

5

entered a judgment. In response, the state points to App.R. 26(A)(2)(a), which 

provides: “Upon a determination that two or more decisions of the court on which 

they sit are in conflict, a majority of the en banc court may order that an appeal or 

other proceedings be considered en banc.” The state takes the view that the only 

prerequisite to ordering en banc review is a determination that two or more 

decisions of the court conflict. So, the state argues, once the court of appeals 

determined that Howard and Jarmon were in conflict, it could order en banc review 

to resolve the conflict and then apply that resolution to Maldonado’s appeal. But 

that single sentence in App.R. 26(A)(2)(a) must be considered in the context of the 

entire rule. See generally State v. Everette, 2011-Ohio-2856, ¶ 26 (in which this

court applied tenets of statutory construction to construe App.R. 9(A) “as a 

whole”).

{¶ 12} App.R. 26(A)(2)(b) provides two ways for an en banc review of an 

appeal to be initiated: the court can order en banc review sua sponte or a party can 

make an application for en banc review. If a party makes an application for en banc 

review, it “must explain how the panel’s decision conflicts with a prior panel’s 

decision on a dispositive issue and why consideration by the court en banc is 

necessary to secure and maintain uniformity of the court’s decisions.” App.R. 

26(A)(2)(b). While that portion of the rule does not apply to en banc review ordered

sua sponte by the court—likely because the court would not need to explain the 

conflict to itself—it does imply that the decision to order en banc review is tied to 

a case that was already submitted to and decided by a panel. A court of appeals 

cannot simply determine that two past decisions are in conflict and then attempt to 

resolve the conflict.

{¶ 13} The state points to this court’s decision in State v. Forrest, 2013-

Ohio-2409, in support of its argument that “it is a conflict between two or more 

decisions of the court, not the journalization and release of the panel opinion or an 

application of a party, which triggers review.” But Forrest is inapposite to the case 
SUPREME COURT OF OHIO

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before us. In Forrest, the issue was whether a party’s application for en banc 

consideration could be reviewed by only the three-judge panel, as opposed to the 

court en banc. Id. at ¶ 1. The case did not address whether en banc consideration 

could be ordered sua sponte absent the issuance of a decision by a panel.

{¶ 14} Subsections (c) and (d) of App.R. 26(A)(2) also make clear that a 

determination of a conflict must be tethered to a contemporaneous decision by a 

panel. App.R. 26(A)(2)(c) provides: “Any sua sponte order designating a case for 

en banc consideration must be entered no later than ten days after the clerk has both 

mailed the judgment or order in question and made a note on the docket of the 

mailing as required by App.R. 30(A).” (Emphasis added.) The rule presupposes 

that before an en banc review is ordered sua sponte, a judgment will have been 

made by an assigned panel. Other en banc decisions by appellate courts indicate 

that that is how the rule has been understood to operate. See, e.g., State v. Delvallie, 

2022-Ohio-470, ¶ 4 (8th Dist.); State v. Bergman, 2013-Ohio-5811, ¶ 1-4 (11th 

Dist.); State v. Porter, 2018-Ohio-3852, ¶ 1 (12th Dist.).

{¶ 15} Subsection (d) further demonstrates that a panel decision must 

precede any en banc consideration. Under App.R. 26(A)(2)(d), “[t]he decision of 

the en banc court shall become the decision of the court.” But if a majority of the 

court is unable to concur in a decision, “the decision of the original panel shall 

remain the decision in the case unless vacated under App.R. 26(A)(2)(c) and, if so 

vacated, shall be reentered.” App.R. 26(A)(2)(d). Under the state’s reading of the 

rule, a court can decide to hear a case en banc before a decision is made by the 

original panel. But if that were so, there would not be a decision to “remain the 

decision” if a majority of the en banc court were unable to agree on a decision.
January Term, 2024

7

{¶ 16} The state points out that in this case, the panel had circulated a 

“proposed decision.”2 So, the state argues, if the en banc court had been unable to 

reach agreement on the issue of resentencing hearings, “the merit panel’s proposed 

opinion would be submitted and filed.” Setting aside that a “proposed opinion” is,

by definition, not a final determination, the state’s argument is contrary to the rule’s 

prescription that a decision of the original panel “remain the decision.” To remain 

the decision, the opinion must already have been a “decision.” This means it must 

have been submitted and filed before en banc consideration.

{¶ 17} Just as the rule necessarily requires a panel decision that may 

“remain the decision,” so too does it require an en banc decision that could “become 

the decision of the case.” App.R. 26(A)(2)(d). And the en banc decision here fails 

that test. Notably, it did not even address Maldonado’s case. Instead, the panel’s 

decision (which did address the merits of Maldonado’s appeal) is tacked onto the 

end of the en banc court’s decision. Thus, the en banc decision could not have 

“become the decision of the case,” as provided in App.R. 26(A)(2)(d).

{¶ 18} The state maintains that the court of appeals’ “[utilization of] an 

informal en banc procedure” was permitted by App.R. 26(A)(2)(e), which provides 

that “[o]ther procedures governing the initiation, filing, briefing, rehearing, 

reconsideration, and determination of en banc proceedings may be prescribed by 

local rule or as otherwise ordered by the court.” But as the above discussion shows, 

the court of appeals’ procedure was inconsistent with the rule. And local rules

cannot conflict with the rules promulgated by this court. Ohio Const., art. IV, §

5(B).

{¶ 19} Finally, the state argues that interpreting the rule to require the 

issuance of a panel decision in a case before en banc consideration of the issue in 

2. As noted above, the court of appeals refers to a “proposed decision” in its February 2023 entry. 

The “proposed decision” is not part of the record, which demonstrates the problematic lack of 

transparency that resulted from the procedure used here.
SUPREME COURT OF OHIO

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the case when the court has a preexisting intradistrict conflict on the issue 

“frustrates the purpose of the rule.” In McFadden, we noted that the purpose of en 

banc proceedings was to allow a court of appeals “ ‘ “to secure uniformity and 

continuity in its decisions.” ’ ” McFadden, 2008-Ohio-4914, at ¶ 16, quoting 

United States v. American-Foreign Steamship Corp., 363 U.S. 685, 689-690 

(1960), quoting Maris, Hearing and Rehearing Cases In Banc, 14 F.R.D. 91, 96

(1954). The state does not explain how waiting for the issuance of a new conflicting 

decision by the panel before conducting en banc proceedings frustrates this

purpose. The state claims that the court of appeals “eliminated the inconsistency 

[between Howard and Jarmon] without hesitation.” But if eliminating the 

inconsistency quickly were a goal of the court of appeals, it could have sua sponte 

ordered en banc consideration in 2020 when Jarmon was released.

{¶ 20} We conclude that App.R. 26(A)(2) requires that a decision in a case 

be issued by a three-judge panel before the court of appeals can sua sponte order en 

banc consideration of an issue in that case.

Maldonado was not prejudiced by the court’s error

{¶ 21} We turn our consideration next to the question of prejudice. 

Notwithstanding our conclusion that the court of appeals erred in conducting an en 

banc review before the panel decision was released, the panel decision must stand 

unless Maldonado was prejudiced by the error. See Ohio Life Ins. & Trust Co. v. 

Goodin, 10 Ohio St. 557 (1860), paragraph one of the syllabus (“In order to justify 

the reversal of a judgment or decree upon error, the record must show affirmatively, 

not only that error intervened, but that it was to the prejudice of the party seeking 

to take advantage of it.”).

{¶ 22} Maldonado contends that the court of appeals’ action here amounted 

to structural error for which automatic reversal is appropriate. But “[a] structural 

error is a violation of the basic constitutional guarantees that define the framework 

of a criminal trial; it is a fundamental constitutional defect in the proceeding that is 
January Term, 2024

9

presumptively prejudicial and not susceptible to harmless-error review.”

(Emphasis in original.) State v. Jones, 2020-Ohio-3051, ¶ 2. There is no 

constitutional right at issue here. The court of appeals’ error was limited to 

violating a procedural rule.

{¶ 23} Maldonado also argues that he was prejudiced because had the court 

of appeals followed App.R. 26(A)(2), the original panel assigned to his appeal may 

not have rejected his argument that the trial court erred in failing to hold hearing on 

remand. In support, he points out that the two judges who dissented from the en 

banc decision had originally been on the panel assigned to his appeal. But his 

speculative argument does not take into account that en banc consideration of that 

decision would have resulted in the same resolution as the en banc decision 

resolving the conflict between Howard and Jarmon, since 10 of the 12 judges 

agreed with the en banc determination.

{¶ 24} In any event, Maldonado has not shown that had the result in the 

court of appeals been different, that is, had the court concluded that the trial court 

should have held a hearing, his ultimate outcome would be affected. Even if the 

trial court were ordered to conduct a hearing, Maldonado’s sentence would remain 

the same. Vacation of the drive-by-shooting specification did not change his 

aggregate sentence. And removal of the violent-offender registration requirement 

did not affect him negatively. In his brief in the court of appeals, Maldonado 

suggested that the trial court might have been persuaded to give him a lesser 

sentence, but that would have been contrary to the court of appeals’ mandate.

Absent a demonstration that Maldonado was prejudiced by the court of appeals’ 

actions, we will not reverse its judgment.

Conclusion

{¶ 25} Read in its entirety, App.R. 26(A)(2) makes clear that a panel 

decision in a case must precede en banc consideration of an issue in that case by 

the court of appeals. The Eighth District ignored this procedure when it considered 
SUPREME COURT OF OHIO

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an issue in Maldonado’s case en banc before the three-judge panel issued a 

decision. But because Maldonado has suffered no prejudice, we affirm the 

judgment of the Eighth District Court of Appeals.

Judgment affirmed.

_________________

FISCHER, J., dissenting.

{¶ 26} I fully agree with the holding set forth in the majority opinion that 

“App.R. 26(A)(2) makes clear that a panel decision in a case must precede en banc 

consideration of an issue in that case by the court of appeals.” Majority opinion, 

¶ 22. Because I disagree with the majority opinion’s application of that holding to 

the facts of this case, I must respectfully dissent from the court’s judgment 

affirming the Eighth District Court of Appeals.

{¶ 27} As noted in the majority opinion, appellant, Elvin Maldonado, 

argues that the improper procedure used by the Eighth District amounted to 

structural error. See id. at ¶ 22. This argument is rejected in the majority opinion 

on the basis that no constitutional right is at issue in this case. Id.

{¶ 28} In my view, the improper procedure used by the Eighth District in 

this case amounts to a constitutional violation. Article IV, Section 3 of the Ohio 

Constitution provides: “In districts having [more than three appellate-court judges], 

three judges shall participate in the hearing and disposition of each case.” 

Maldonado’s appeal of his resentencing was assigned to a three-judge panel, but no 

panel decision was announced before the Eighth District decided sua sponte to 

conduct an en banc review and released its en banc decision. Although a threejudge panel ultimately issued a decision in this case, that decision followed the en 

banc decision. Given the procedure followed by the court of appeals in this case, 

it seems to me that the case was disposed of not by the three-judge panel but by the 

en banc court. This was a clear violation of Maldonado’s right under the Ohio 

Constitution to have his appeal disposed of by the three-judge panel that was 
January Term, 2024

11

assigned to his case, and I believe that this violation constitutes structural error that 

requires this court to reverse the judgment of the Eighth District.

{¶ 29} Moreover, the error of the court of appeals places this court in an 

untenable position. Any review by this court of the decision of the en banc panel 

would be purely advisory, as that decision was improperly issued in violation of the 

Rules of Appellate Procedure. But in affirming the judgment of the Eighth District, 

the majority opinion allows that improperly issued en banc decision not only to 

stand but to act as controlling law in the Eighth District. In affirming the Eighth 

District’s judgment, this court effectively ties its own hands, as it precludes itself 

from considering the underlying legal issue—whether a defendant is entitled to be 

present at a hearing under Crim.R. 43(A) when a case has been remanded for 

resentencing to vacate or delete any aspect of a sentence—an issue that the Eighth 

District chose to consider en banc because conflicting Eighth District appellate 

decisions exist on that issue. The more prudent approach for this court to take in 

this case would be to reverse the Eighth District’s judgment and remand the case to 

the court of appeals. If this court were to reverse and remand, then Maldonado’s 

case could proceed by the book and this court would have an opportunity to address 

an unsettled issue of law, in the event that on remand, the Eighth District issued a 

proper decision on the issue and this court chose to accept jurisdiction over an 

appeal.

{¶ 30} For these reasons, I respectfully dissent from the judgment affirming 

the judgment of the Eighth District.

_________________

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Tasha 

L. Forchione, Assistant Prosecuting Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin, 

Assistant Public Defender, for appellant.

_________________