STATE OF OHIO v. JULIO E. COLON
No. 104944
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 9, 2017
[Cite as State v. Colon, 2017-Ohio-8478.]
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-592449-B
BEFORE: Blackmon, J., McCormack, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: November 9, 2017
ATTORNEYS FOR APPELLANT
Mark A. Stanton
Cuyahoga County Public Defender
By: John T. Martin
Assistant County Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Amy Venesile
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{1} Julio Colon (“Colon“) appeals from the order of the trial court denying his motion to vacate his guilty plea to three counts of sexual battery.1 He assigns the following error for our review:
The trial court erred by denying [Colon‘s] motion to withdraw his plea without conducting a hearing.
{2} Having reviewed the record and pertinent law, we affirm the decision of the trial court.
{3} In February 2015, Colon was indicted on seven counts of rape and two counts of kidnapping, all with sexually violent predator specifications, in connection with allegations that he and codefendant Philip Gordon molested two mentally disabled brothers. In April 2015, the trial court granted the defendant‘s motion for an independent psychiatric assessment of the brothers. The record indicates that the findings “were not favorable to the defense.” Colon subsequently pled guilty to three counts of sexual battery in violation of
determined that Colon had committed “the worst form of the offense,” and sentenced him to three consecutive five-year terms of incarceration on each count, and also designated that he is a Tier III sex offender.
{5} On February 12, 2016, during the pendency of his appeal, Colon filed a motion to withdraw his guilty pleas. He maintained that his trial counsel did not warn him of the constitutional defects of
Motion to Vacate
{6} On appeal, Colon complains that the trial court erred in denying his motion to vacate his guilty plea without holding a hearing because he was deprived of the effective assistance of counsel in entering the plea.
{7} Under
{8} A hearing on a postsentence motion to withdraw a guilty plea is not mandated if the facts alleged by the defendant and accepted as true by the trial court would not require the court to permit the withdrawal of the plea. State v. Blatnik, 17 Ohio App.3d 201, 204, 478 N.E.2d 1016 (6th Dist.1984); State v. Wynn, 131 Ohio App.3d 725, 728, 723 N.E.2d 627 (8th Dist.1998).
{9} The determination of whether a defendant has demonstrated a manifest injustice is addressed to the sound discretion of the trial court. Blatnik at 202; State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph two of syllabus. Jaber at ¶ 17. On appeal, the ruling is reviewed for an abuse of discretion. Blatnik at 202.
Ineffective Assistance
{10} Ineffective assistance of counsel may constitute manifest injustice requiring postsentence withdrawal of a guilty plea. State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, 793 N.E.2d 509 (10th Dist.), ¶ 18; State v. Hamed, 63 Ohio App.3d 5, 7, 577 N.E.2d 1111 (8th Dist.1989). To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate: (1) deficient performance by counsel, i.e., that counsel‘s performance fell below an objective standard of reasonable representation; and (2) that counsel‘s errors prejudiced the defendant,
Constitutional Challenges
{11} We next consider Colon‘s claims advanced in the motion to vacate, i.e., whether he was deprived of the effective assistance of counsel because “there is a substantial question as to whether either of the victims are impaired,” and whether
sexual conduct even though they were “willing to participate in such conduct,” and from “reproducing unless married.”
{12} A facial challenge to a statute permits the statute to be attacked for its effect on conduct other than the conduct for which the defendant is charged. State v. Beckley, 5 Ohio St.3d 4, 6, 448 N.E.2d 1147 (1983); an as-applied challenge requires clear and convincing evidence of a presently existing set of facts that makes the statute unconstitutional when applied to the defendant on those facts. Id.
{13} With regard to Colon‘s as-applied challenge, we note, as an initial matter, that it is not entirely clear to this court that Colon has standing to raise this particular challenge. In a similar case, the court concluded that the defendant lacked standing to assert such a challenge since he is not asserting his own constitutional rights, but the rights of impaired individuals such as his victims, and he is not in a special relationship or a relationship of confidence or advocacy with them. See State v. Phillips, 575 So.2d 1313, 1314 (Fla. 4th Dist.). The Phillips court stated:
While there is some evidence which respondents claim support a defense of consent, it was the victim herself who reported the sexual battery and testified against the respondents at the bond hearing. Based on the foregoing we can hardly say that the victim could be looking to the respondents to assert her right of privacy. Similarly, the impact of such litigation on third party interests, namely the right of all minors to engage in consensual sexual activity, is not vindicated in a criminal prosecution where the minor victim is maintaining a lack of consent.
Therefore, we hold that the respondents had no standing to challenge the constitutionality of section 800.04, Florida Statutes (1989), on the asserted ground of the right of sexual privacy of the minor victim. We also note that this is consistent with the holding of other courts who have addressed this issue. See Ferris v. Santa Clara County, 891 F.2d 715, 717 n. 3 (9th
Cir. 1989); Anderson v. State, 562 P.2d 351 (Alaska 1977). Because we hold that the respondents lacked standing to assert the minor‘s right to sexual privacy, we do not address the statute‘s constitutionality on those grounds.
Id. at 1314-1315.
{14} Similarly, in this matter, Colon did not assert his own constitutional interests and he is not in a special relationship or relationship of confidence or advocacy with the victims. To the contrary, the record
{15} In any event, we note that a guilty plea is a complete admission of the facts set forth in the indictment. State v. Greathouse, 158 Ohio App.3d 135, 2004-Ohio-3402, 814 N.E.2d 502, ¶ 7 (2d Dist.); State v. Stumpf, 32 Ohio St.3d 95, 104, 512 N.E.2d 598 (1987);
{16} Here, Colon pled guilty to sexual battery in violation of
{17} Accordingly, we find no clear and convincing evidence that the statute is unconstitutional as applied in this matter.
{18} With regard to Colon‘s facial due process and equal protection challenges, we note that a guilty plea does not bar assertion of constitutional violations that go to the right and power of the state to place the defendant on trial. See Blackledge v. Perry, 417 U.S. 21, 31, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). However, “[a]ll statutes have a strong presumption of constitutionality. * * * Before a court may declare unconstitutional an enactment of the legislative branch, ‘it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible.‘” Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 25, quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus.
{19} Further, in the 1974 Committee Comment to
This section forbids sexual conduct with a person other than the offender‘s spouse in a variety of situations where the offender takes unconscionable advantage of the victim.
{20} The statute withstood equal protection and due process challenges in State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512 (
{21} We recognize that the Ohio Supreme Court recently held that
is substantially impaired. Conversely, Mole‘s convictions under
{22} In accordance with all of the foregoing, we are unable to conclude that Colon‘s guilty plea was the result of deficient performance. The first required showing under Strickland has not been established. Therefore the claim of ineffectiveness of counsel failed as a matter of law.
{23} Moreover, since the claim of ineffectiveness of counsel was not meritorious, the trial court did not abuse its discretion in denying Colon‘s postsentence motion to vacate his guilty pleas. Additionally, the court was not required to hold a hearing.
{24} The assigned error is without merit.
{25} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, JUDGE
TIM MCCORMACK, P.J., and MELODY J. STEWART, J., CONCUR