State v. Rodriguez
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[Cite as State v. Rodrigues, 2002-Ohio-5489.] IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee vs. : : C.A. CASE NO. 01CA0062 T.C. CASE NO. 97-CR-0215 ALFREDO VENEGAS RODRIGUEZ* : Defendant-Appellant : . . . . . . . . . DECISION AND ENTRY Rendered on the 11th day of September, 2002. . . . . . . . . . PER CURIAM: {¶1} This matter is before the court on App.R. 25 motion to certify a conflict that was filed by the State. The motion argues that our decision of July 12, 2002, reversing Defendant Rodriguez s conviction, is in conflict with the holdings of two other appellate districts; State v. Abuhilwa (Mar. 29, 1995), Summit App. No. 16787, and State v. Reeder (April 14, 1994), Cuyahoga App. No. 65782. {¶2} Motions filed pursuant to App.R. 25 must be filed within ten days after announcement of the court s decision, at the latest. Applications for reopening filed pursuant to App.R. 26(A) be must filed within the same time. That form of application is appropriate when the court s decision contains an obvious error. * Columbus v. Hodge (1987), 37 Ohio App.3d 68. Reporter s Note: For earlier opinion, see State v. Rodriguez, 2002-Ohio-3568. 2 Because we find that our decision herein contains an obvious error on the issue of law presented, we shall consider the motion that the State filed on July 22, 2002, within ten days after our decision of July 12, 2002, as an App.R. 26(A) application for reconsideration. {¶3} Abuhilwa and Reeder hold that the relief available to a defendant for required by the R.C. trial court s 2943.031(A) failure is that to give the provided by advice R.C. 2943.031(D), which is to set aside the defendant s conviction upon the filing of a Crim.R. 32.1 motion to withdraw a guilty plea and the showing that R.C. 2943.031(D) requires concerning citizenship and the potential for deportation. also so held. This court has See State v. McDargh (Nov. 2, 2001), Clark App. No. 00CA94, 2001-Ohio-1703, citing Abuhilwa and Reeder. {¶4} As the basis for our decision herein, we relied on our decision in State v. Mason (Feb. 15, 2001), Greene App. No. 01CA113, 2002-Ohio-930, and we construed Mason to have modified McDargh. Upon further review, we find that it did not, because in Mason the defendant had sought the relief for which R.C. 2943.031(D) provides and appealed after being denied that relief. Therefore, our decision in McDargh remains authoritative, and governs the holding in this appeal. {¶5} Defendant-Appellant Rodriguez did not ask the trial court to set aside his conviction pursuant to R.C. 2943.031(D), and instead filed a direct appeal from his conviction, assigning as error the trial court s failure to comply 2943.031(A) when it accepted his guilty pleas. with R.C. Per McDargh, 3 Abuhilwa, and Reeder, Defendant-Appellant prosecuting that error on appeal. (Mar. 21, 1991), Greene App. was barred from (Also see State v. Thompson No. 90-CA-90.) Therefore, Defendant-Appellant s single assignment of error should have been overruled, not sustained. {¶6} Upon reconsideration, we vacate our decision of July 12, 2002, and instead overrule Defendant-Appellant s assignment of error. Therefore, on the error presented, his conviction and sentence are affirmed. So Ordered. ___________________________________ MIKE FAIN, JUDGE ___________________________________ THOMAS J. GRADY, JUDGE ___________________________________ FREDERICK N. YOUNG, JUDGE Copies mailed to: Andrew P. Pickering Asst. Pros. Attorney 50 East Columbia Street Springfield, Ohio 45502 S. Todd Brecount, Esq. P.O. Box 913 Urbana, Ohio 43078 Hon. Gerald F. Lorig 101 N. Limestone Street Springfield, Ohio 45502
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