State v. Razo

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[Cite as State v. Razo, 2009-Ohio-3405.] STATE OF OHIO COUNTY OF LORAIN ) )ss: ) IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT STATE OF OHIO C. A. No. 08CA009509 Appellee v. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 02CR059992 RANULFO RAZO Appellant DECISION AND JOURNAL ENTRY Dated: July 13, 2009 MOORE, Presiding Judge. {¶1} Appellant, Ranulfo Razo, appeals from the decision of the Lorain County Court of Common Pleas. This Court affirms. I {¶2} On March 20, 2002, the Lorain County Grand Jury indicted Appellant, Ranulfo Razo, on ten counts of rape, in violation of R.C. 2907.02(A)(1)(b); each count of rape carried a sexually violent predator specification. Razo withdrew his previously entered plea of not guilty to the charges and entered a plea of guilty to every count contained in the indictment. The trial court classified Razo as a sexual predator, and sentenced him to an agreed, aggregate eighteen years of incarceration. Razo appealed his sentence. This Court affirmed Razo s conviction and sentence on June 30, 2004. {¶3} On December 20, 2004, Razo filed a motion to withdraw his guilty plea. The trial court denied the motion on January 6, 2005. On July 27, 2005, this Court affirmed the trial 2 court s denial of Razo s motion to withdraw his guilty plea. On July 21, 2008, Razo filed a motion for resentencing pursuant to State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, along with another motion to withdraw his guilty plea. On September 5, 2008, the trial court resentenced Razo to an aggregate term of 18 years of incarceration and informed him of his postrelease control obligations. In addition, the court informed Razo that this sentence would run concurrently with the sentence imposed in Case No. 01CR058101. At the resentencing hearing, the trial court also denied Razo s successive motion to withdraw his guilty plea. Razo timely appealed the trial court s decision. He has raised two assignments of error for our review. II ASSIGNMENT OF ERROR I WHETHER THE TRIAL COURT ABUSED ITS DISCRETION THEREBY DEPRIVING [RAZO] DUE PROCESS OF LAW IN CONJUNCTION WITH A RESENTENCING HEAR[ING] [SIC] PURSUANT TO: STATE V. BEZAK [] WHEN IT FAILED TO FIRST VACATE THE UNDERLYING VOID SENTENCE BEFORE ATTEMPTING TO IMPOSE A [] NEW SENTENCE; FAILED TO COMPLY WITH THE MANDATORY PROVISIONS OF: ROMITO V. MAXWELL [] AND THEREUPON YET STILL FAILED TO IMPOSE A STATUTORILY VALID SENTENCE. {¶4} In his first assignment of error, Razo asserts that the trial court abused its discretion thereby depriving him of due process of law in conjunction with a resentencing hearing pursuant to State v. Bezak when it failed to first vacate the underlying void sentence before attempting to impose a new sentence and failed to comply with Romito v. Maxwell. Razo asserts that as a result, the court failed to impose a statutorily valid sentence. We disagree. {¶5} In State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, the Ohio Supreme Court held as follows: When a defendant is convicted of or pleads guilty to one or more offenses and postrelease control is not properly included in a sentence for a particular offense, 3 the sentence for that offense is void. The offender is entitled to a new sentencing hearing for that particular offense. (Emphasis added.) Bezak at syllabus. The Ohio Supreme Court further explained that [t]he effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment. Id. at ¶12, quoting Romito v. Maxwell (1967), 10 Ohio St.2d 266, 267-268. {¶6} The Ohio Supreme Court also addressed the notification issue in State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, wherein the Court explained that 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. Jordan, at paragraph one of the syllabus. See, also, State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, at syllabus. {¶7} Here, the trial court failed to include the mandatory postrelease control provision in Razo s sentencing entry. Accordingly, Razo s sentence was void and the trial court properly held a de novo resentencing hearing. Bezak at syllabus. As there is no dispute that (1) Razo s underlying sentence was void and (2) the trial court imposed a new sentence after conducting a de novo sentencing hearing, we need not consider whether the trial court had to first vacate the void sentence. {¶8} Razo contends that the trial court erred in reimposing the same sentence he had originally agreed to at his initial sentencing hearing. However, Razo has cited no authority for the proposition that the trial court could not reimpose the agreed-upon 18 year sentence. He also does not suggest in this assignment of error that there is any legal defect in the underlying sentencing agreement that he reached with the assistance of his counsel. Furthermore, while the trial court cannot merely inform the offender of the imposition of postrelease control and automatically reimpose the original sentence , there is no prohibition against ultimately 4 reimposing the same sentence. (Emphasis added.) Bezak, at ¶13. Moreover, [t]he effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment. (Emphasis added.) Id., at ¶12, quoting Romito, 10 Ohio St.2d at 267268. For Razo, just before his initial sentence was imposed improperly, he had negotiated an agreed plea and sentence. Accordingly, the trial court did not abuse its discretion in imposing the agreed sentence. Razo s first assignment of error is overruled. ASSIGNMENT OF ERROR II WHETHER THE TRIAL COURT VIOLATED [RAZO S] DUE PROCESS RIGHTS [] UNDER THE PROVISIONS OF: STATE V. SARKOZY []; O.R.C. § 2943.032(E); AND, WOODS V. TELB [], WHEN IT REFUSED TO PERMIT [RAZO] TO WITHDRAW HIS GUILTY PLEA. {¶9} In his second assignment of error, Razo contends that the trial court violated his due process rights under State v. Sarkozy, R.C. 2943.032(E), and Woods v. Telb, when it refused to permit him to withdraw his guilty plea. We disagree. {¶10} Rule 32.1 of the Ohio Rules of Criminal Procedure provides that [a] motion to withdraw a plea of guilty *** may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea. As set forth in the rule, the manifest injustice standard governs post-sentence plea withdrawals. However, where the motion to withdraw comes before sentencing, the trial court should freely and liberally grant the motion. State v. Xie (1992), 62 Ohio St.3d 521, 527. Accordingly, before reviewing the trial court s decision, this Court must determine whether Razo s motion to withdraw his guilty plea was a presentence motion or a postsentence motion. 5 {¶11} While Razo filed the within motion five years after his initial sentence, the Ohio Supreme Court has recently held 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 Crim.R. 32.1. State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, at paragraph one of the syllabus. As Razo s sentence was void under Bezak, his motion must be considered as a presentence motion under Crim.R. 32.1. {¶12} Where a defendant files a presentence motion to withdraw a guilty plea, the general rule is that the motion should be freely and liberally granted. Id. at ¶1, quoting Xie, 62 Ohio St.3d at 526-27. Even so, it is the defendant s burden to demonstrate a reasonable and legitimate basis for withdrawing a plea[.] State v. DeWille (Nov. 4, 1992), 9th Dist. No. 2101, at *1. One who enters a guilty plea has no right to withdraw it. (Internal quotations and citations omitted.) Xie, 62 Ohio St.3d at 526. The trial court has the discretion to determine whether a defendant has provided a reasonable and legitimate basis to withdraw her plea, as well as to determine whether the circumstances justify a withdrawal. State v. Keith, 9th Dist. Nos. 07CA009263, 07CA009267, 07CA009268, 07CA009269, 07CA009270, 07CA009271, 07CA009272, 2008-Ohio-3724, at ¶¶7-8. An abuse of discretion is more than an error of judgment; it means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. This Court has held that a trial court does not abuse its discretion in denying a motion to withdraw a presentence plea when a defendant had competent counsel, a full Crim.R. 11 hearing prior to the acceptance of the plea, and a hearing on the motion to withdraw. State v. Mack, 9th Dist. No. 05CA0024-M, 2005Ohio-6325, at ¶8. 6 {¶13} On appeal, Razo contends that the trial court violated his due process rights in refusing to allow him to withdraw his guilty plea pursuant to the Ohio Supreme Court s recent holding in State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, wherein the Court held that If a trial court fails during a plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control, the defendant may dispute the knowing, intelligent, and voluntary nature of the plea either by filing a motion to withdraw the plea or upon direct appeal. Sarkozy, at paragraph one of the syllabus. {¶14} Razo contends that the record is clear that he was not advised that his sentence would include a mandatory term of postrelease control. He contends that had he known that he would be subject to five years of mandatory postrelease control, he would not have pled guilty and would have instead insisted on a trial. {¶15} In State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, the Ohio Supreme Court explained that [I]f the trial judge imperfectly explained nonconstitutional rights such as the right to be informed of the maximum possible penalty and the effect of the plea, a substantial-compliance rule applies. Under this standard, a slight deviation from the text of the rule is permissible; so long as the totality of the circumstances indicates that the defendant subjectively understands the implications of his plea and the rights he is waiving, the plea may be upheld. When the trial judge does not substantially comply with Crim.R. 11 in regard to a nonconstitutional right, reviewing courts must determine whether the trial court partially complied or failed to comply with the rule. If the trial judge partially complied *** the plea may be vacated only if the defendant demonstrates a prejudicial effect. The test for prejudice is whether the plea would have otherwise been made. (Internal citations and quotations omitted.) Clark at ¶¶ 31-32. {¶16} Here, the record reflects that the trial court advised Razo that When you are released from prison, you will be released on post release control sanctions for a period of 5 years. Any violation of a post release control sanction could see you returned to the institution. Do you understand? {¶17} Upon review, we cannot conclude that the trial court abused its discretion in denying Razo s motion to withdraw his guilty plea. The record reflects that Razo had competent 7 counsel, a full Crim.R. 11 hearing prior to the acceptance of the plea, and a hearing on the motion to withdraw his plea. Mack, supra, at ¶8. The trial court adequately advised Razo regarding the implications of his plea and the rights he was waiving by pleading guilty. In addition, the trial court informed Razo that he would be subject to postrelease control sanctions for five years after his release from prison and that if he violated the postrelease control sanctions, he could be returned to prison. While the trial court did not expressly use the term mandatory , the totality of the circumstances reflects that the court only slightly deviated from the postrelease control language. Clark, supra, at ¶¶31-32. The transcript reflects that Razo understood the implications of his guilty plea. Accordingly, the trial court substantially complied with Crim.R. 11. {¶18} Razo s second assignment of error is overruled. III {¶19} Razo s assignments of error are overruled and the judgment of the Lorain County Court of Common Pleas is affirmed. Judgment affirmed There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 8 period 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. Costs taxed to Appellant. CARLA MOORE FOR THE COURT WHITMORE, J. BELFANCE, J. CONCUR APPEARANCES: RANULFO RAZO, pro se, Appellant. DENNIS WILL, Prosecuting Attorney, and BILLIE JO BELCHER, Assistant Prosecuting Attorney, for Appellee.

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