State v. Morales

[Cite as State v. Morales, 2016-Ohio-3313.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27765
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MARCEL ALEXANDER MORALES COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2004 09 3018
DECISION AND JOURNAL ENTRY
Dated: June 8, 2016
WHITMORE, Judge.
{¶1} Appellant, Marcel A. Morales, appeals the Summit County Court of Common
Pleas’ denial of his “Crim.R. 52(B) Motion to Notice Plain Error and Correct Manifest
Miscarriage of Justice.” This Court affirms.
I
{¶2} In 2004, Morales was indicted on nineteen counts, ranging from breaking and
entering to aggravated robbery and attempted murder. Nine of the counts included firearm
specifications. He pled guilty to thirteen of the counts, and the State dismissed the balance of the
charges including the attempted murder charges.
{¶3} Morales’ written plea of guilty indicates that he and the prosecutor agreed to
recommend nine-year sentences for two aggravated robberies and three-year sentences for
firearm specifications attached to those counts. His written plea further indicates that the parties
agreed those sentences should be run consecutively for a total of twenty-four years with the
2
sentences for the other counts to run concurrently. The trial court sentenced Morales to nine
years in prison for each of the aggravated robberies and three years for each of the associated
firearm specifications. The court further ordered that this time be served consecutively for a total
of twenty-four years. The court ordered the sentences for the remaining counts be served
concurrently.
{¶4} In 2011, Morales filed a motion for resentencing due to a failure to include proper
post-release control notifications. The trial court held a resentencing hearing and imposed a
mandatory, five-year period of post-release control. In 2013, Morales filed a notice of appeal,
which we dismissed as untimely.
{¶5} In 2015, Morales filed the motion that is the subject of the current appeal. He
argued that the trial court plainly erred by imposing consecutive sentences without making the
findings in R.C. 2929.14(E)(4), which has since be renumbered to R.C. 2929.14(C)(4). He
argued that the imposition of consecutive sentences “affect[ed] [his] substantial rights of due
process” and was “barred by the double jeopardy clause.” The State filed a memorandum in
opposition. The trial court denied Morales’ motion.
{¶6} Morales appeals raising one assignment of error for our review.
Assignment of Error
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S CRIM.R. 52(B) MOTION TO NOTICE PLAIN ERROR,
WHEN TRIAL COURT’S IMPOSITION OF CONSECUTIVE SANCTION
DOES NOT COMPORT WITH MANDATORY PROVISIONS OF DIVISION
(E)(4), RENUMBERED TO (C)(4) OF SECTION 2929.14 OF THE REVISED
CODE, AFFECTING APPELLANT’S SUBSTANTIAL RIGHTS OF DUE
PROCESS OF LAW, THEREFORE, CONSECUTIVE SANCTION IS
CONTRARY TO LAW AND IS ALSO NOT AUTHORIZED BY LAW.
3
{¶7} In his sole assignment of error, Morales argues that his consecutive sentences
should be modified to concurrent sentences. Because Morales’ motion was, in fact, an untimely
petition for postconviction relief, we cannot reach his argument.
{¶8} Morales attempts to have a portion of his sentence declared void and vacated on
constitutional grounds, so his motion is a petition for postconviction relief. Regardless of the
caption, “where a criminal defendant, subsequent to his or her direct appeal [or the expiration of
the time for filing an appeal], files a motion seeking vacation or correction of his or her sentence
on the basis that his or her constitutional rights have been violated, such a motion is a petition for
postconviction relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158, 160
(1997); see also State v. Stepler, 9th Dist. Summit No. 23354, 2006-Ohio-6913, ¶ 8. In cases
where no direct appeal was filed, former R.C. 2953.21(A)(2) provided a defendant with 180 days
from the expiration of the time for filing an appeal to file a petition for postconviction relief.
Morales filed the motion that is the subject of this appeal on March 20, 2015. As Morales’
sentence was journalized in July 2005, his petition is untimely by over nine years, and he has not
argued that any exception found in the statute applies to authorize this untimely filing.
{¶9} The trial court correctly denied the motion. Morales’ assignment of error is
overruled.
III
{¶10} Morales’ assignment of error is overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, 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
period for review shall begin to run. App.R. 22(C). 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.
BETH WHITMORE
FOR THE COURT
CARR, P. J.
MOORE, J.
CONCUR.
APPEARANCES:
MARCEL A. MORALES, pro se, Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.