State v. RiveraState v. Rivera
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Juliа R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.
Charles S. Rowell, Jr., for appellant.
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PIETRYKOWSKI, J.
{¶ 1} Juan Rivera, appellant, appeals а December 2, 2011 judgment of the Lucas County Court of Common Pleas. The judgment resentenced appellant with respect to postrelease control.
{¶ 2} On October 3, 2005, appellant entered Alford guilty pleas (pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)) tо two counts of rape and two counts of gross sexual imposition. The rape counts charged violations of
{¶ 3} The trial court conducted a sentencing hearing on November 2, 2005. The court’s sentencing judgment was journalized on November 7, 2005. The court sentenced appellant to serve a one year prison term on both gross sexual imposition convictions with the sentences to run concurrently to each other and to the sentences for rape. The court sentenced appellant to a term of seven years imprisonment on both rape convictions, with the sentences ordered to run consecutively to each other. This resulted in a total aggregate sentence of imрrisonment for 14 years.
{¶ 4} Appellant filed a direct appeal to this court and challenged the constitutionality of his sentencing. In State v. Rivera, 6th Dist. L-05-1356, 2006-Ohio-3185, we reversed and remandеd for resentencing, based upon the Ohio Supreme Court’s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
{¶ 5} On remand, the trial court conducted a resentencing hearing on August 30, 2006, and filed a resentencing judgment. The judgment was journalized on September 1, 2006. In the judgment, the trial court resentenced appellant to serve the identical term of
{¶ 6} On August 29, 2007, appellant filed a pro se “Motion to Vacate Voidable Sentence Civil Rule 60(B).” Thе motion challenged appellant’s resentencing under Foster on constitutional grounds. In an October 19, 2007 judgment, the trial court denied the motion, holding that the motion constituted a petition for postconviction relief and was untimely under
{¶ 7} On May 21, 2009, appellant filed a motion to vacate judgment pursuant to
Motion to Vacate Sentence on Postrelease Control Grounds and Crim.R. 32.1 Motion to Withdraw Guilty Plea
{¶ 8} On January 14, 2011, appellant filed a motion to vacate sentence. In the motion, appеllant argued that the trial court failed to provide statutorily mandated notices of postrelease control at sentencing in 2005 and in the sentencing judgment. Appellant argued that the sentence was void. Appellant also argued that a de novo resentencing hearing was required. While the motion challenging sеntencing on postrelease control grounds remained pending, appellant also filed a
{¶ 10} The resentenсing hearing proceeded on December 2, 2011. The trial court also filed its resentencing judgment on that date. Appellant filed a notice of appеal from the December 2, 2011 resentencing judgment. Appellant asserts one assignment of error on appeal:
Assignment of Error No. 1: The trial court erred in accepting appellant’s plea of guilty pursuant to North Carolina v. Alford.
{¶ 11} Under the sole assignment of error, appellant argues that his guilty plea is invalid because the trial court failed to make the necessary inquiry, before accepting his plea, pursuant to North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). As we agree with the state’s contention that this issue is barred under the dоctrine of res judicata, we affirm.
{¶ 12} We considered the nature of Alford pleas and the standard to judge their validity in State v. Gonzalez, 193 Ohio App.3d 385, 397, 2011-Ohio-1542, 952 N.E.2d 502, ¶ 59-60 (6th Dist.):
A plea made pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, is a type of guilty plea in which a defendant
pleads guilty while maintaining innocence. State v. Ware, 6th Dist. No. L-08-1050, 2008-Ohio-6944, 2008 WL 5412393, ¶ 11; State v. Hopkins, 6th Dist. No. L-05-1012, 2006-Ohio-967, 2006 WL 513956, ¶ 14. There is no “express admission of guilt” in an Alford plea. Alford at 37. Validity of such a plea is judged by the standard of “whether the plea reprеsents a voluntary and intelligent choice among the alternative courses of action open to defendant.” Alford at 31; see State v. Lacumsky, 6th Dist. No. OT-08-060, 2009-Ohio-3214, 2009 WL 1875231, ¶ 7. In State v. Piacella (1971), 27 Ohio St.2d 92, 96, 56 O.O.2d 52, 271 N.E.2d 852, the Ohio Supreme Court considered an Alford plea and held that “where the record affirmatively discloses that: (1) a guilty plea was not the result of coercion, deception or intimidation; (2) counsel was present at the time of the plea; (3) his advice was competent in light of the circumstances surrounding the plea; (4) the plea was made with the understanding of the nature of the charges; and, (5) the plea was motivated either by a desire to seek a lesser penalty or a fear of the consequences of a jury trial, or both, the guilty рlea has been voluntarily and intelligently made.”
{¶ 13} Appellant argues that the trial court, before accepting the plea, failed to conduct the necessary inquiry to ascertain whether appellant’s Alford plea was motivated either by a desire to seek a lesser penalty or by a fear of the сonsequences of a jury trial, or both. He also claims that the trial court failed to provide notice of the effect of the plea
{¶ 14} The doctrine of res judicata bars consideration of issues that were raised or could have been raised on direct appeal. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus; State v. Bryukhanova, 6th Dist. No. F-10-002, 2010-Ohio-5504, ¶ 12; State v. Faust, 6th Dist. No. L-97-1343, 1998 WL 161221, * 2 (Mar. 31, 1998). In State v. Perry, the Ohio Supreme Court addressed the nature and scope of the bar of res judicata:
Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.
{¶ 15} The Ninth District Court of Appeals considered a similar challenge to an Alford plea in State v. Houser, 9th Dist. No. 21555, 2003-Ohio-6811. The appellant in the case claimed that the trial court’s plea colloquy at the plea hearing was insufficient under North Carolina v. Alford to detеrmine whether the plea was made knowingly and intelligently. Id. at ¶ 22.
{¶ 16} The court of appeals held in Houser that whether a trial court conducted the necessary inquiry at the plea hearing before accepting an Alford plea is a matter that an
{¶ 17} We agree with the reasoning of the Ninth District Court of Appeals in Houser and find it applicable here. Appellаnt’s claim that the trial court erred in accepting appellant’s Alford plea did not require consideration of evidence outside of the record оn direct appeal. We conclude appellant is barred by res judicata from raising the issue in a subsequent
{¶ 18} Justice having been provided the party complaining, we affirm the judgment of the Lucas County Court of Common Pleas. We order appellant to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________ JUDGE
Arlene Singer, P.J. _______________________________ JUDGE
Thomas J. Osowik, J. CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.