STATE OF OHIO, Plaintiff-Appellee, vs. RODOLFO JOSE TEMAJ-FELIX, Defendant-Appellant.
APPEAL NO. C-140138
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
September 30, 2015
[Cite as State v. Temaj-Felix, 2015-Ohio-3967.]
Criminal Appeal From: Hamilton County Court of Common Pleas; TRIAL NO. B-1102150; Judgment Appealed From Is: Affirmed
Roger W. Kirk, for Defendant-Appellant.
Please note: we hаve removed this case from the accelerated calendar.
O P I N I O N.
{¶1} Defendant-appellant Rodolfo Jose Temaj-Felix has taken this apрeal from the Hamilton County Common Pleas Court’s judgment overruling his “Motion for a New Trial.” We affirm the court’s judgment.
{¶2} Temaj-Felix was convicted in November 2011 upon guilty plеas to aggravated vehicular homicide, aggravated vehicular assault, and two counts of failure to stop after an accident. He was sentеnced to consecutive prison terms totaling 18 years. On appeal of that 2011 conviction, we affirmed the judgment of the trial court except for the sentences imposed for the two failure-to-stop offenses, charged in Counts 5 and 6 of the indictment, and remanded for resentencing on either Count 5 or Cоunt 6 in conformity with the multiple-counts statute,
{¶3} On remand, the trial court conducted a resentencing hearing and, on January 21, 2014, journalized a judgment of conviction.1
{¶4} After his resentencing hearing, Temaj-Felix filed with the trial court a motion captioned “Motion for a New Trial.” The court overruled the motion, and this appeal followed.
{¶5} This appeal was not consolidated with Temaj-Felix’s direct appeal in the case numbered C-140052 from his 2014 judgment of conviction. Nevertheless, the appeals were briefed, argued, and submitted together. In his brief, Temaj-Felix presents eight assignments of error. In this appeal, we decide his fourth and eighth assignments of error only as they challenge the denial of the relief sought in his “Motion for a New Trial.”
{¶6} In his motion, Temaj-Felix invoked
{¶7} A
{¶8} A common pleas court, confronted with a postconviction motion invoking a rule or statute that does not afford the relief sought, “may recast [the] motion[] into whatever category necessary to identify and establish the criteria by which the motion should be judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12, citing Bush, supra, and State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1999). To the extent that Temaj-Felix, in his motion, sought to withdraw his guilty pleas on the ground that there had been agreement cоncerning
{¶9}
Relief Was Properly Denied
{¶10} Temaj-Felix’s fourth and eight assignments of error, read together, challenge the denial of the relief sought in his January 2014 motion. We find no merit to this challenge.
{¶11} Crim.R. 32.1 motion to withdraw guilty pleas. We conclude that the common pleas court properly declined to grant Temaj-Felix relief under
{¶12} In seeking to withdraw his guilty pleas, Temaj-Felix asserted that he and the state had “had a plea agreement for a sentence of no more than 15 years incarceration,” but that the trial court had “not agree[d] with a 15 year prison sentence” and had instead imposed consecutive prison sentences totaling 18 years. The record does not show that his pleas were other than knowing, voluntary, and intelligent. The record clearly demonstrates that there were discussions about a possible plea agreement. However, the record is also clear that no agreement as to sentencing was reached between the state and Temaj-Felix. In any event, the trial court did not agree to any such proposed plea agreement, and is not bound to any proposed plea agreement. See State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6. Thus, we can only concur with thе common pleas court’s conclusion, implicit in its judgment overruling his motion, that Temaj-Felix failed to sustain his burden of demonstrating that withdrawing his pleas was necessary to correct a manifest injustice. Accordingly, we hold that the court, in denying withdrawal of his pleas, did not abuse its discretion.
{¶13} Postconviction relief. Nor did the court err in denying Temaj-Felix рostconviction relief in the form of resentencing based on the lack of consecutive-sentencing findings. A postconviction petition must be filed with the common pleas court within 180 days after the transcript of the proceedings is filed in the direct appeal. Temaj-Felix’s postconviction motion was filed well after the time prescribed by
{¶14} The record does not, as it could not, demonstrate that but for the alleged sentencing error, “no reasonable factfinder would have found [Temaj-Felix] guilty of the offense[s] of which [he] was convicted.” See
The Judgment is Affirmed
{¶15} The common pleas court properly denied the relief sought in Temaj-Felix’s postconviction motion. Accordingly, we overrule the assignments of error and affirm the court’s judgment.
Judgment affirmed.
CUNNINGHAM, P.J., and MOCK, J., concur.
The court has recorded its own entry this date.