State v. Arios

[Cite as State v. Arios, 2017-Ohio-656.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104821
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOSE ARIOS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-07-500492-B
BEFORE: Boyle, J., Kilbane, P.J., and McCormack, J.
RELEASED AND JOURNALIZED: February 23, 2017
FOR APPELLANT
Jose Arios, pro se
Inmate No. 544-918
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Frank Romeo Zeleznikar
Assistant County Prosecutor
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Jose Arios, appeals from a judgment denying his
motion to be sentenced. He raises one assignment of error for our review:
Whether the trial court’s failure to properly impose terms of postrelease
control; its failure to articulate [the sentence] with which the consecutive
sentences were/are to be served, and its failure to render an [“adjudication
of guilt”] upon acceptance of appellant’s guilty plea implicates a valid final
appealable order rendering the plea far less than the required knowingly,
intelligently and voluntarily made and the attempted sentences void ab initio
as a matter of law and fact.
{¶2} Finding no merit to his appeal, we affirm.
I. Procedural History and Factual Background
{¶3} In May 2008, Arios was convicted by a jury of various drug-related charges,
including seven counts of drug trafficking, three counts of drug possession, and one count
of possessing criminal tools, and was sentenced to 47 years in prison. In his direct
appeal, he raised four arguments: (1) that the trial court violated his rights to due process
when it sentenced him to maximum, consecutive sentences, and failed to conduct a
proportionality review, (2) that his convictions were against the weight of the evidence,
(3) that the trial court erred when it quashed his subpoenas and when it failed to suppress
evidence against him, and (4) that the trial court erred when it did not merge several of
the offenses. See State v. Arios, 8th Dist. Cuyahoga No. 91506, 2009-Ohio-5814.
{¶4} In reviewing Arios’s arguments on direct appeal, we found merit to his
fourth assignment of error. We held that three of the trafficking counts and the three
possession counts were allied offenses of similar import. Id. at ¶ 56. We ordered that
the allied offenses be merged; reversed the convictions on all six counts held to be allied
offenses; remanded the case for an allied offense merger under R.C. 2941.25; vacated the
sentence for all six counts held to be allied offenses; and otherwise affirmed. Id.
{¶5} Arios appealed our decision to the Ohio Supreme Court, but it denied leave
to appeal because it found there were no substantial constitutional questions involved.
See State v. Arios, 124 Ohio St.3d 1478, 2010-Ohio-354, 921 N.E.2d 248. Arios also
filed an application to reopen his appeal, which this court denied. See State v. Arios, 8th
Dist. Cuyahoga No. 91506, 2010-Ohio-1195.
{¶6} In June 2012, Arios moved for a new trial, which the trial court granted.
In October of that same year, Arios pleaded guilty to six counts of drug trafficking, four
counts of drug possession, and possessing criminal tools. The trial court sentenced him
the same day, imposing a sentence of 14 years in prison after merging the four possession
counts with four of the trafficking counts. The trial court also imposed five years of
mandatory postrelease control and notified Arios of the consequences of violating the
terms of his postrelease control.
{¶7} Arios did not timely appeal the trial court’s judgment sentencing him. But
in January 2014, Arios moved to vacate his sentence. The trial court denied this motion
on February 10, 2014. Arios filed a notice of appeal of the trial court’s February 10,
2014 judgment on July 23, 2014. This court dismissed the appeal as untimely on July
31, 2014. Arios refiled his notice of appeal of the February 10, 2014 judgment on
September 2, 2014, and this court dismissed the appeal, noting that we already dismissed
the appeal in a prior entry.
{¶8} On June 20, 2016, Arios filed a “motion for sentencing,” which the trial
court denied on July 12, 2016. It is from this judgment that Arios now appeals.
II. Untimely Petition for Postconviction Relief
{¶9} A vaguely titled motion, including a motion to correct or vacate a sentence,
may be construed as a petition for postconviction relief under R.C. 2953.21(A)(1) where
(1) the motion was filed subsequent to a direct appeal, (2) claimed a denial of
constitutional rights, (3) sought to render the judgment void, and (4) asked for a vacation
of the judgment and sentence. State v. Reynolds, 79 Ohio St.3d 158, 160-161, 679
N.E.2d 1131 (1997). After review, we find that Arios’s “motion for sentencing” meets
these four requirements. Accordingly, we shall construe Arios’s motion for sentencing
as a petition for postconviction relief. See also State v. Meincke, 8th Dist. Cuyahoga No.
96407, 2011-Ohio-6473.
{¶10} R.C. 2953.21 through 2953.23 set forth the means by which a convicted
defendant may seek to have the trial court’s judgment or sentence vacated or set aside
pursuant to a petition for postconviction relief. A defendant’s petition for
postconviction relief is a collateral civil attack on his or her criminal conviction. See
State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 48. The statute
affords relief from judgment where the petitioner’s rights in the proceedings that resulted
in his conviction were denied to such an extent the conviction is rendered void or
voidable under the Ohio or United States Constitutions. R.C. 2953.21(A); State v.
Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four of the syllabus.
{¶11} A defendant, however, must file any motion to be considered pursuant to
R.C. 2953.21 within the jurisdictional, 180-day time limit delineated in the statute. R.C.
2953.21 provides that the petition must be filed within 180 days from the filing of the trial
transcripts in the petitioner’s direct appeal or, if a direct appeal was not pursued, 180 days
after the expiration of the time in which a direct appeal could have been filed. Arios did
not file his motion until well beyond the required 180 days.
{¶12} R.C. 2953.23(A)(1) allows a trial court to entertain an untimely or
successive petition only if: (1) the petitioner was unavoidably prevented from discovering
the facts on which the petition is predicated, or (2) the United States Supreme Court has
recognized a new federal or state right that applies retroactively to the petitioner and the
petition asserts a claim based on that new right. R.C. 2953.23(A)(1)(a). If the petitioner
is able to satisfy one of these threshold conditions, he or she must then demonstrate that,
but for the constitutional error at trial, no reasonable factfinder would have found him or
her guilty of the offenses of which he was convicted. R.C. 2953.23(A)(1)(b).
{¶13} Therefore, unless it appears from the record that Arios was unavoidably
prevented from discovering facts upon which he relied in his petition, or the United States
Supreme Court has recognized a new federal or state right that applies retroactively to
him, and that but for constitutional error at trial, no reasonable factfinder would have
found him guilty, we are bound to conclude the trial court was without jurisdiction to
consider his petition for postconviction relief.
III. Analysis
{¶14} Arios does not even allege, let alone establish, any of the requirements
necessary to bring an untimely petition for postconviction relief. Arios does not claim
that he was unavoidably prevented from discovering the facts upon which he relied in his
petition. Nor has the United States Supreme Court recognized a new federal or state
right that applies retroactively to Arios. Thus, he does not meet the threshold
requirements that are necessary before a trial court can consider his petition.
{¶15} Accordingly, the trial court was without jurisdiction to address his petition
except for his argument that the trial court did not properly impose postrelease control.
It is well settled that a sentence that does not include the statutorily mandated term of
postrelease control is void, is not precluded from appellate review by principles of res
judicata, and may be reviewed at any time, on direct appeal or by collateral attack. State
v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the
syllabus; see also State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶
16.
{¶16} We have reviewed the trial court’s judgment entry and find that it properly
advised Arios that he would be subject to five years of mandatory postrelease control, and
it further advised him of the consequences he would face if he violated the terms of his
postrelease control. To the extent that Arios argues the trial court failed to provide him
with the proper oral notices at his sentencing hearing, we do not have a transcript before
us on appeal and, thus, we must presume regularity. State v. Love, 8th Dist. Cuyahoga
No. 102058, 2015-Ohio-1461, ¶ 11.
{¶17} Arios’s sole assignment of error is overruled.
{¶18} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the 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.
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, P.J., and
TIM McCORMACK, J., CONCUR