State v. ReyesState v. Reyes
Jamie Reyes, Appellant
Matthew K. Fox for Appellee
{¶1} Defendant-Appellant, Jamie Reyes, aka Jaime Reyes, aka Andres Flores, aka Andres Flores Calvario, aka Gordo (hereinafter “Appellant“), pro se, appeals the judgment of the Mercer County Court of Common Pleas denying Appellant‘s motion to vacate his sentence for failure to properly notify him of post-release control and also denying his motion to withdraw his guilty plea. For the reasons set forth below, the judgment is affirmed in part and reversed in part.
{¶2} In February 2002, the Mercer County Grand Jury returned a seven-count indictment against Appellant for trafficking in drugs and possession of drugs, namely cocaine and methamphetamine. Pursuant to a negotiated plea agreement, Appellant pled guilty to the following three counts: two counts of trafficking in drugs pursuant to
{¶3} On September 24, 2003, Appellant filed a motion to withdraw his plea or remand for resentencing, but withdrew it on June 14, 2006, with permission to re-file at a future date.2 In August of 2007, Appellant filed a motion for delayed appeal with this Court, which we denied on September 27, 2007. (Mercer App. No. 10-07-18.) Appellant pursued a discretionary appeal to the Ohio Supreme court, which was not accepted for review. See State v. Reyes, 116 Ohio St.3d 1507, 2008-Ohio-381, 880 N.E.2d 483.
{¶4} On January 17, 2008, Appellant re-filed his motion to withdraw his guilty plea and the court denied the motion by journal entry, dated January 18, 2008. Appellant did not appeal that decision.
{¶5} On August 12, 2010, Appellant moved to vacate sentence and to withdraw his guilty plea. The trial court denied these motions on November 22, 2010. It is from this decision that Appellant now appeals, raising the following two assignments of error for our review.
A sentence that does not include the statutorily mandated term of postrelease control is void, is not precluded from appellate review by principles of res judicata, and may be reviewed at any time, on direct appeal or by collateral attack. Thus the trial court violated Appellant‘s due process rights when it imposed an illegal sentence upon the Appellant.
Second Assignment of Error
The trial court committed prejudicial error to the Appellant by overruling Appellant‘s motion to withdraw his guilty plea, thereby denying his rights to due process of law.
{¶6} In his first assignment of error, Appellant contends that the trial court erred when it completely omitted any reference to post-release control, either at his sentencing hearing or in his judgment entry of sentencing. Appellant points out that it is mandatory for a sentencing court to notify an offender that a period of post-release control will be imposed for the commission of certain felonies, such as in this case. See e.g., State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at paragraph one of the syllabus, superseded by statute on other grounds (“When sentencing a felony offender to a term of imprisonment, a trial court is required to notify the offender at the sentencing hearing about postrelease control and is further required to incorporate that notice into its journal entry imposing sentence.“)
{¶8} Appellant is correct, and the State agrees, that the trial court erred in omitting any reference to the inclusion of post-release control as a part of Appellant‘s sentence, as well as failing to inform him concerning what penalties might be imposed if there is a violation of the terms of post-release control. However, it is only that part of the sentence pertaining to post-release control that is void and the new sentencing hearing to which Appellant is entitled is limited to the proper imposition of post-release control. Id. at paragraph three of the syllabus. Res judicata still applies to the other aspects of the merits of the conviction, including the determination of guilt and the lawful elements of the sentence. Id at ¶40.
{¶10} Appellant‘s first assignment of error is well-taken and is sustained. Therefore, we remand this matter for further proceedings consistent with this decision.
{¶11} In his second assignment of error, Appellant asserts that the trial court erred when it denied his motion to withdraw his guilty plea. Appellant complains that his plea was not knowingly, intelligently, and voluntarily made because the trial court did not comply with the
{¶12}
{¶13} Furthermore, we find that the trial court correctly denied Appellant‘s motion to withdraw his plea on the basis of res judicata. “Res judicata bars the assertion of claims against a valid, final judgment of conviction that have been
{¶14} Appellant was sentenced in September of 2002, but he did not appeal even though his claimed errors were readily apparent on the record at that time. Appellant then filed a motion to withdraw his guilty plea in 2003, although he subsequently withdrew it after obtaining the trial court‘s permission to re-file at a later date. (See fn. 1.) Appellant then filed his motion to withdraw his guilty plea in January of 2008. The trial court denied his motion, and Appellant did not appeal this decision. In August of 2010, Appellant filed another motion to withdraw his guilty plea, setting forth essentially the same arguments that he made in his 2008 motion. Because this issue was already decided by the trial court‘s January 18, 2008 judgment entry, and that decision was never challenged on appeal, Appellant is precluded from bringing subsequent motions to withdraw his
{¶15} Having found no error prejudicial to the Appellant herein in the particulars assigned and argued in Assignment of Error Two, we affirm the judgment of the trial court as to that assignment of error. However, we find that Assignment of Error One has merit, and we hereby remand the matter to the trial court for further proceedings consistent with this opinion.
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
ROGERS, P.J. and PRESTON, J., concur.
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