State v. Ester ( 2022 )

[Cite as State v. Ester, 2022-Ohio-3678.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111689
v. :
ROBERT ESTER, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: October 13, 2022
Criminal Appeal from the Cuyahoga County Common Pleas Court
Case No. CR-21-656846-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Steven Szelagiewicz, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Michael V. Wilhelm, Assistant Public Defender, for
appellant.
EILEEN A. GALLAGHER, J.:
Appellant, Robert Ester, Jr., has appealed following the trial court’s
denial of his motion to withdraw his plea.
Specifically, Ester raises the following assignments of error:
1. Mr. Ester’s guilty plea was not knowingly, voluntarily, and
intelligently made because the trial court failed to inform him of
mandatory post-release control.
2. Mr. Ester’s guilty plea was not knowingly, voluntarily, and
intelligently made because the trial court failed to inform him of the
penalties of importuning, domestic violence, and gross-sexual
imposition.
3. The trial court abused its discretion when it denied Mr. Ester’s
motion to vacate his guilty plea.
The state of Ohio conceded the error set forth in the first assignment
of error and, in light of that concession, declined to address the remaining
assignments of error.
We find that the record is devoid of any advisement to the appellant,
by the trial court, of the potential penalties to which he would be exposed if he
entered guilty pleas. Further, the record is devoid of any advisement to the appellant
of the fact that a mandatory term of postrelease control would be imposed following
any prison term served. We note that R.C. 2967.28 applies only to prison terms and
not to terms of local incarceration.
Although the appellant was ultimately sentenced to time served in the
Cuyahoga County Jail and placed under community-control sanctions for the crimes
to which he entered guilty pleas, he was entitled to the advisement of mandatory
postrelease control at the time of his plea.
In its nunc pro tunc sentencing journal entry the trial court included
the following:
As a result of the conviction(s) in this case and the imposition of a
prison sentence, and pursuant to R.C. 2967.28 (F)(4)(c). The
defendant will/may be subject to a period of post-release control of a
mandatory 5 years.
As we previously stated in State v. Williamson, 8th Dist. Cuyahoga
Nos. 100563 and 101115, 2014-Ohio-3909, “The trial court could not nunc what it
did not first tunc.”
As the trial court failed to conduct a proper Crim.R. 11 colloquy in this
case, we sustain the first and second assignments of error, vacate the appellant’s
sentences and convictions and remand the case to the trial court for further
proceedings consistent with this opinion.
Our resolution of the first and second assignments of error renders
the third assignment of error moot. See App. 12(A)(1)(c).
Judgment vacated and remanded.
It is ordered that appellant recover of appellee costs herein taxed.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EMANUELLA D. GROVES, J., CONCUR