State v. GonzalezState v. Gonzalez
Dated: November 2, 2009
MOORE, Presiding Judge.
{¶1} Appellant, Jose Gonzalez, appeals from the decision of the Lоrain County Court of Common Pleas. This Court vacates his sentence and remands for resentencing.
I.
{¶2} On October 29, 2003, Jose Gоnzalez was indicted for aggravated trafficking in marijuana, a first-degree felony, in violation of
{¶3} On October 17, 2005, Gonzalez pled guilty to the charges. On October 28, 2005, Gonzalez was sentenced to a total of ten years of inсarceration. On March 10, 2008, Gonzalez filed a pro se motion to withdraw his plea. On October 22, 2008, with the assistance of counsel,
II.
ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED WHEN IT DENIED [GONZALEZ‘S] MOTION TO WITHDRAW HIS GUILTY PLEA.”
{¶4} In his sole assignmеnt of error, Gonzalez contends that the trial court erred when it denied his motion to withdraw his guilty plea. Although Gonzalez has not raised the issue on appeal, this Court concludes that his sentence must be vacated as a result of an error in the trial court‘s sentencing entry with respect to its imposition of post-release control.
{¶5} In State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, the defеndant moved to vacate his plea based on a sentence that failed to include mandatory post-release control. In that case, the Supreme Court concluded that “[a] motion to withdraw a plea of guilty *** made by a defendant who has been given a void sentence must be considered as a presentence motion under
{¶6} This Court recently examined Ohio Supreme Court precedent regarding void and voidable sentences. See State v. Holcomb, 9th Dist. No. 24287, 2009-Ohio-3187. In Boswell, supra, the Ohio Supreme Court held that “[d]espite the lack of a motion for resentencing, we still must vacate the sentence and remand for a resentencing hearing in the trial court. Because the original sentence is actually considered a nullity, a court cannot ignore the sentence and instead must vacate it and order resentencing.” Id. at ¶12.
{¶8} Gоnzalez was convicted of, and sentenced to, one count of aggravated trafficking in marijuana, a felony of the first degree. Pursuant to
{¶9} “‘Because a sentence that does not conform to statutory mandates requiring thе imposition of postrelease control is a nullity and void, it must be vacated[,] *** plac[ing] the parties in the same position they would have been in had there been no sentence.‘” Boswell, at ¶8, quoting State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, at ¶22. Accordingly, when “[a] motion to withdraw a рlea of guilty *** [is] made by a defendant who has been given a void sentence [it] must *** be considered as a presentence motion under
III.
{¶11} Because Gonzalez‘s sentenсe is void, this Court cannot address his assignment of error. Gonzalez‘s sentence is vacated, and the cause is remаnded for proceedings consistent with this opinion.
Sentence vacated, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, direсting the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy оf this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall cоnstitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the periоd 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.
CARLA MOORE
FOR THE COURT
DICKINSON, J.
BELFANCE, J.
CONCUR
APPEARANCES:
KENNETH N. ORTNER, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and BILLIE JO BELCHER, Assistant Prosecuting Attorney, for Appellee.