[Cite as State v. Bell, 2011-Ohio-1965.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95719
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JOAQUIN BELL DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-456145
BEFORE: Boyle, P.J., Cooney, J., and Rocco, J.
RELEASED AND JOURNALIZED: April 21, 2011 2
ATTORNEY FOR APPELLANT
John T. Castele 1310 Rockefeller Building 614 West Superior Avenue Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor BY: Thorin O. Freeman Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶ 1} Defendant-appellant, Joaquin Bell, appeals the trial court’s
decision denying his oral motion to withdraw his plea and reclassifying him
as a Tier III sex offender. He raises two assignments of error for our review:
{¶ 2} “[1.] The trial court erred in denying appellant’s motion to
withdraw his plea based upon the doctrine of res judicata. The trial court 3
ought to have reviewed appellant’s motion as a presentence motion to
withdraw his guilty plea and reviewed the motion using a presentence
standard of review as set forth in State v. Xie.
{¶ 3} “[2.] The trial court erred in reclassifying the appellant as a Tier
III sexual offender.”
{¶ 4} We find no merit to his first assignment of error, but sustain his
second assignment of error. We affirm in part, reverse in part, and remand
to the trial court.
Procedural History
{¶ 5} In April 2005, Bell pleaded guilty to an amended indictment of
attempted rape with notice of prior conviction and sexually violent predator
specifications, and attempted kidnapping with the same specifications, as
well as a sexual motivation specification. Bell further agreed to be labeled as
a sexual predator.
{¶ 6} The trial court then sentenced Bell to 14 years in prison for the
above convictions and notified Bell that postrelease control was part of his
sentence, but failed to indicate for how long. Bell did not appeal his
conviction or sentence.
{¶ 7} In August 2005, Bell moved to withdraw his guilty plea for
several reasons, which the trial court denied. Bell appealed the trial court’s 4
decision denying his motion to withdraw his plea. This court affirmed the
trial court’s decision in State v. Bell, 8th Dist. No. 87727, 2007-Ohio-3276.
{¶ 8} In June 2010, Bell moved to withdraw his plea again, this time
arguing that his sentence was void because the trial court failed to notify him
of his mandatory postrelease control at sentencing. He further moved the
court to dismiss his case for “want of prosecution and delay in trial and
sentencing,” and he claimed that “his constitutional rights to a fast and
speedy trial [had] been violated.”
{¶ 9} The state responded with a brief in opposition to both Bell’s
motion to withdraw his plea and his motion to dismiss, and further moved the
court to resentence Bell to properly advise him that he would be subject to
five years of mandatory postrelease control upon his release from prison.
{¶ 10} On August 4, 2010, the trial court denied Bell’s motion to
withdraw his plea without a hearing because it found that res judicata barred
it from considering it. But the trial court granted the state’s request for a de
novo sentencing hearing to properly notify Bell about postrelease control.
{¶ 11} Later that same month, the trial court held a de novo sentencing
hearing, ultimately imposing the same sentence originally given, but with the
proper notification of five years of mandatory postrelease control. At the
resentencing hearing, Bell orally moved to withdraw his plea, again due to 5
the fact that he had not been informed prior to his plea that he would be
subject to five years of mandatory postrelease control. The trial court denied
his oral motion as well, and then reclassified Bell as a Tier III sex offender.
It is from this judgment that Bell appeals.
Motion to Withdraw Plea
{¶ 12} In his first assignment of error, Bell argues that because his
sentence was void for inadequate postrelease-control notification, his motion
to withdraw his plea was a presentence motion to withdraw and should have
been reviewed under the “liberal standard” set forth in State v. Xie (1992), 62
Ohio St.3d 521, 584 N.E.2d 715 (“a presentence motion to withdraw a guilty
plea should be freely and liberally granted”).
{¶ 13} Crim.R. 32.1 states: “A motion to withdraw a plea of guilty or no
contest 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.” Although “a
presentence motion to withdraw a guilty plea should be freely and liberally
granted,” Crim.R. 32.1 requires a defendant making a postsentence motion to
withdraw a plea to demonstrate manifest injustice because it is designed “to
discourage a defendant from pleading guilty to test the weight of potential
reprisal, and later withdraw the plea if the sentence was unexpectedly 6
severe.” State v. Caraballo (1985), 17 Ohio St.3d 66, 67, 477 N.E.2d 627,
citing State v. Peterseim (1980), 68 Ohio App.2d 211, 213, 428 N.E.2d 863.
{¶ 14} In support of his argument that his Crim.R. 32.1 motion was
reviewable as a presentence motion, Bell cites the Ohio Supreme Court’s 2009
decision in State v. Boswell, 112 Ohio St.3d 574, 2009-Ohio-1577, 906 N.E.2d
422. In Boswell, the Supreme Court 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.” Id. at the syllabus.
The Supreme Court based its holding in Boswell on the principles set forth
in State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961.
{¶ 15} In Bezak, the Supreme Court had held at the syllabus that
“[w]hen 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, the sentence for that offense is void. The offender is entitled to a
new sentencing hearing for that particular offense.” The Supreme Court
reached that holding in large part because “the effect of vacating the trial
court’s original sentence is to place the parties in the same place as if there
had been no sentence.” Bezak at ¶13, citing Romito v. Maxwell (1967), 10
Ohio St.2d 266, 267-268, 227 N.E.2d 223. 7
{¶ 16} But the Ohio Supreme Court recently revisited the law
underlying its decision in Bezak. See State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332. The Supreme Court noted that Bezak had
relied in part on cases “inapposite to Bezak,” that had “presented
quintessential jurisdictional questions,” rather than “statutory sentencing
mandates.” Fischer at ¶14. Specifically, the Fischer court explained that in
Bezak, it had “relied heavily on [Romito, 10 Ohio St.2d 266] for the
proposition that the effect of a void judgment is that the judgment is a nullity,
and the parties are in the same position as if there had been no judgment.”
Fischer at ¶12, citing Bezak at ¶12-13. The Fischer court went on to explain:
{¶ 17} “The court in Romito supported that conclusion by relying on Tari
v. State (1927), 117 Ohio St. 481, 159 N.E. 594, and Hill v. Hill (1945), 299
Ky. 351, 185 S.W.2d 245. Though different from each other, both Tari and
Hill presented quintessential jurisdictional questions. Thus, Romito
represents the historic, narrow view of void judgments, which is limited to the
class of cases in which jurisdiction, rather than statutory sentencing
mandates, is implicated. See State v. Holcomb, 184 Ohio App.3d 577,
2009-Ohio-3187, 921 N.E.2d 1077, ¶4-7 (noting early Ohio Supreme Court
cases treating sentences that did not conform to mandatory prison terms as
voidable rather than void).” Fischer at ¶14. 8
{¶ 18} Although the Supreme Court ultimately upheld the first sentence
of the Bezak syllabus that held “[w]hen 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, the sentence for that offense is void,” it
added the “proviso that only the offending portion of the sentence is subject to
review and correction.” Fischer at ¶27.
{¶ 19} The Court then noted that the second sentence of the Bezak
syllabus, which held “[t]he offender is entitled to a new sentencing hearing for
that particular offense,” was “ill-considered.” Fischer at ¶28. The Fischer
court modified that second sentence and held that “[t]he new sentencing
hearing to which an offender is entitled under State v. Bezak is limited to
proper imposition of postrelease control.” Fischer at paragraph two of the
syllabus.
{¶ 20} In Boswell, the Supreme Court had relied heavily on Bezak to
conclude that “[a] motion to withdraw a plea of guilty or no contest made by a
defendant who has been given a void sentence must be considered as a
presentence motion under Crim.R. 32.1.” Boswell at the syllabus.
Specifically, in Boswell, the Supreme Court had relied on the exact reasoning
from Bezak that the Supreme Court recently revisited in Fischer, i.e.,
“[b]ecause a sentence that does not conform to statutory mandates requiring 9
the imposition of postrelease control is a nullity and void, it must be vacated.
The effect of vacating the sentence places the parties in the same position
they would have been in had there been no sentence.” Boswell at ¶8, citing
State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568, ¶22,
citing Bezak at ¶13. Considering that exact reasoning from Bezak (which the
Supreme Court had obtained from Romito, the 1967 habeas case), the
Supreme Court in Boswell then concluded:
{¶ 21} “A motion to withdraw a plea of guilty or no contest made by a
defendant who has been given a void sentence must therefore be considered as
a presentence motion under Crim.R. 32.1.” The court went on to explain that
“[a]lthough such a defendant has in fact been through a sentencing hearing,
the trial judge acted without authority in imposing the sentence. Crim.R. 32.1
requires a defendant making a postsentence motion to withdraw a plea to
demonstrate manifest injustice because it is designed ‘to discourage a
defendant from pleading guilty to test the weight of potential reprisal, and
later withdraw the plea if the sentence was unexpectedly severe.’ *** This
logic does not fully apply where the reprisal itself was unlawful.” (Citations
omitted.) Boswell at ¶9.
{¶ 22} Thus, after Fischer, when a defendant receives a sentence that
does not properly include postrelease control, the defendant’s entire sentence 10
is no longer vacated; rather, just the “offending portion of the sentence is
subject to review and correction.” Fischer at ¶27. The defendant does not
have to be put in the same “position [he or she] would have been in had there
been no sentence.” Bezak at ¶13. It logically follows then that because a
defendant’s entire sentence is not null and void, but just the offending part,
that a Crim.R. 32.1 motion to withdraw a plea filed after a defendant has
been sentenced —without the proper postrelease control — is a postsentence
motion that must meet the stricter manifest injustice standard. See, also,
State v. Christie, 3d Dist. No. 4-10-04, 2011-Ohio-520; State v. Thomas, 1st
Dist. Nos. C-100411 and C-100412, 2011-Ohio-1331 (both cases reaching the
same result as we do regarding this issue).
{¶ 23} But here, we need not even get to the manifest injustice standard
because we conclude that Bell’s motion to withdraw his plea is barred by res
judicata.
{¶ 24} Although in Boswell, the Supreme Court had declined to address
the state’s res judicata issue because the state failed to raise it properly, the
Court did address res judicata in Fischer. In Fischer, the Supreme Court
made clear that “[a]lthough the doctrine of res judicata does not preclude
review of a void sentence, res judicata still applies to other aspects of the 11
merits of a conviction, including the determination of guilt and the lawful
elements of the ensuing sentence.” Id. at paragraph three of the syllabus.
{¶ 25} Bell moved to withdraw his plea in a written motion on June 3,
2010. The trial court denied Bell’s motion on August 4, 2010. Bell did not
appeal this order. The only judgment identified in and attached to the notice
of appeal was the trial court’s August 20, 2010 sentencing entry.
{¶ 26} Nonetheless, at his resentencing hearing, Bell orally moved to
withdraw his plea — again for the same reasons he raised in his written
motion, i.e., that the trial court failed to inform him at his plea hearing of the
maximum penalty he would receive regarding postrelease control.
Specifically, Bell argued that he would not have entered the plea had he
known that he would be subject to five years of mandatory postrelease control
upon his release from prison. The trial court denied Bell’s oral request as
well.
{¶ 27} Even before the Supreme Court made clear in Fischer that res
judicata still applied, this court had already determined that same conclusion
in light of the fact that the Supreme Court only declined to address res
judicata in Boswell due to a procedural error. See State v. Fountain, 8th
Dist. Nos. 92772 and 92874, 2010-Ohio-1202. In Fountain, the appellant had
pleaded guilty and was sentenced in 2002. At that time, the trial court 12
advised him that he “may” be subject to postrelease control upon his release
from prison. On September 11, 2008, Fountain filed a pro se motion to
correct a void sentence on the basis that he was not properly informed of
postrelease control. On November 26, 2008, before he was resentenced,
Fountain filed a pro se motion to withdraw his guilty plea.
{¶ 28} The trial court conducted a hearing on both motions in January
2009. Although the trial court granted Fountain’s motion to correct his
sentence, it considered his motion to withdraw his guilty plea and denied it.
Fountain’s defense counsel argued that Fountain may not have pleaded guilty
had he known of the mandatory nature of postrelease control. The trial
court reviewed the transcript of the plea hearing and discredited Fountain’s
argument. On appeal, he argued that the trial court erred in denying his
motion to withdraw his plea. Fountain at ¶4.
{¶ 29} In upholding the trial court’s judgment, this court explained:
{¶ 30} “It is well recognized that the doctrine of res judicata bars claims
that were raised or could have been raised on direct appeal. State v. Davis,
119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221. Consistent
therewith, this court has consistently recognized that the doctrine of res
judicata bars all claims raised in a Crim.R. 32.1 motion that were raised or
could have been raised in a prior proceeding, including a direct appeal. State 13
v. McGee, 8th Dist. No. 91638, 2009-Ohio-3374; State v. Pickens, 8th Dist. No.
91924, 2009-Ohio-1791; State v. Gaston, 8th Dist. No. 82628, 2003-Ohio-5825;
see, also, State v. Coats, 3d Dist. Nos. 10-09-04 and 10-09-05, 2009-Ohio-3534.
Indeed, the right to withdraw a plea is not absolute. Coats, supra.
Applying these same principles, we find that the application of res judicata to
a motion to withdraw is not impacted by a void sentence. Coats, supra;
McGee, supra.” Fountain at ¶9.
{¶ 31} In Fountain, we further found Newman v. Wilson (Apr. 30, 2009),
N.D.Ohio No. 5:08 CV 483, to be instructive. Id. at ¶10. Newman was “a
case in which a motion to withdraw guilty plea was filed after the sentence
was vacated and the case remanded for resentencing, wherein the court
stated as follows: ‘The doctrine of res judicata bars further litigation in a
criminal case of issues which were raised previously or could have been raised
previously in a direct appeal. State v. Leek [June 21, 2000], 8th Dist. No.
74338, citing State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104,
paragraph nine of the syllabus. Accordingly, [the defendant’s] failure to
properly raise the plea issues in [a] direct appeal *** bars *** later
consideration. *** In this case, *** res judicata would have served to bar
further review of petitioner’s claims of involuntary guilty plea.’” Fountain at
¶10, quoting Newman at 6. 14
{¶ 32} The appellant in Fountain raised the exact issue that Bell is
raising here. Fountain argued “that his plea was not voluntary because the
trial court misinformed him at his plea hearing that he may receive, rather
than that he would receive, postrelease control.” (Emphasis added.) Id. at
¶11. We rejected that argument, however, because “Fountain could have
raised that issue on direct appeal.” Id. Therefore, we concluded that
Fountain’s motion was barred by res judicata, and we overruled his assigned
errors pertaining to his motion to withdraw.
{¶ 33} We conclude the same in the present case. The transcript from
Bell’s plea hearing shows that although the trial court told him that he would
receive mandatory postrelease control, it did not tell him that it would be for
five years. Bell could have raised this issue in a direct appeal, which he
failed to file, or at least in his first motion to withdraw his plea filed three
months after his conviction, in 2005.
{¶ 34} Bell’s first assignment of error is overruled.
Sex Offender Status
{¶ 35} In his second assignment of error, Bell argues that the trial court
erred in reclassifying him as a Tier III offender under the Adam Walsh Act.
He requests that his Tier III classification be removed and his sexual 15
predator status be reinstated. The prosecutor concedes this issue, and we
agree.
{¶ 36} In State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933
N.E.2d 753, the Ohio Supreme Court struck down a portion of Ohio’s Adam
Walsh Act dealing with the reclassification of sexual offenders by the
executive branch as a violation of a separation of powers; specifically those
provisions that required the attorney general to reclassify sexual offenders
who were previously classified by court order under former law. Id. at
paragraphs two and three of the syllabus. According to the state, at the time
of the resentencing hearing, it believed that because Bell was being
resentenced in a de novo sentencing hearing, it would be the trial court
reclassifying Bell, not the executive branch, and therefore there would be no
separation-of-powers issue. But now the state claims that after Fischer, Bell
was not entitled to a de novo sentencing hearing and, thus, the trial court
could not reclassify Bell.
{¶ 37} But we conclude that the trial court could not have reclassified
Bell even before Fischer. As the Second Appellate District explained:
{¶ 38} “[W]here resentencing is required due to an error in the
imposition of post-release control, the trial court is not authorized to address
a defendant’s previously-imposed sex offender classification. State v. Gibson, 16
2d Dist. No. 2009 CA 47, 2010-Ohio-3447. In Gibson, the defendant was
sentenced for rape in 2001, prior to the enactment of the Adam Walsh Act,
but he challenged the validity of his sentence to post-release control after the
Act was in effect. We held that, although a defendant is informed of his sex
offender classification at sentencing and it is included in the trial court’s
judgment entry, his classification ‘is a separate and distinct proceeding,
which is not affected by the validity of his sentencing.’ Id. at ¶22. Thus, we
concluded that the validity of a sentence, including whether the sentence was
void because post-release control had not been properly imposed, ‘would not
affect the validity of [a defendant’s] classification as a sexual predator.’ Id.
at ¶28. [The defendant’s] classification as a sexually oriented offender was
likewise unaffected by the error that rendered the post-release control portion
of his sentence void.” (Internal citations omitted.) State v. Gimbrone, 2d
Dist. No. 23810, 2011-Ohio-632, ¶12.
{¶ 39} In Gimbrone, the Second District went on to conclude that the
Ohio Supreme Court’s decision in Fischer only strengthened its previous
determination because Fischer “narrowed the scope of resentencing required
to correct an improperly-imposed term of post-release control.” Id. at ¶14.
We agree. 17
{¶ 40} Thus, the trial court erred when it reclassified Bell as a Tier III
sex offender under the Adam Walsh Act. Bell’s prior classification must be
reinstated.
Judgment affirmed in part and reversed in part. Case remanded for the trial
court to reinstate Bell’s prior classification as a sexual predator.
It is ordered that appellant and appellee share 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, PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and KENNETH A. ROCCO, J., CONCUR