State v. Ramirez

2025 Ohio 1542

• Court: Ohio Court of Appeals
• Decided: May 1, 2025
• Docket: 113988
• Status: Published

Opinion

[Cite as State v. Ramirez, 2025-Ohio-1542.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 113988 v. :

MICHAEL RAMIREZ, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, VACATED IN PART, AND REMANDED RELEASED AND JOURNALIZED: May 1, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-23-681200-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda, Assistant Prosecuting Attorney, for appellee.

Gregory T. Stralka, for appellant.

LISA B. FORBES, J.:

Michael Ramirez (“Ramirez”) appeals the trial court’s journal entry

sentencing him to a term in prison and, among other things, requiring him to pay

child support while incarcerated. Ramirez also challenges the trial court’s denial of his motion to withdraw his plea. After reviewing the facts of the case and pertinent

law, we affirm the trial court’s decisions but vacate the sentence.

I. Facts and Procedural History

Ramirez had an “on and off” romantic relationship with a minor that

lasted about three years. When the relationship began, Ramirez was 19 years old,

and the victim was 15 years old. Ramirez continued a sexual relationship with the

victim even after learning her age. This relationship produced a child, who was eight

years old when Ramirez was sentenced.

Resulting from these events, Ramirez pled guilty to attempted

unlawful sexual conduct with a minor, a felony of the fifth degree, in violation of

R.C. 2923.02 and 2907.04(A). At his change-of-plea hearing on March 7, 2024, the

prosecutor explained the terms of the plea. The State would amend the indictment

from one count of unlawful sexual conduct with a minor to incorporate the attempt

statute. In exchange, Ramirez agreed to enter his plea of guilty. After a thorough

Crim.R. 11 plea colloquy, the court accepted Ramirez’s plea of guilty.

At the request of Ramirez’s counsel and as agreed to by Ramirez, the

court proceeded to sentencing. Ramirez made a statement. In response to the

court’s questions, Ramirez explained that “child support has been ordered through

North Carolina, . . . [Ramirez] directly pay[s] the victim here electronically each

month the set amount.” The victim spoke at length about her past and present

experience with Ramirez. The trial court sentenced Ramirez to 11 months in prison and,

pertinent to this appeal, ordered Ramirez to “make arrangements for ongoing child

support to be paid . . . from his assets while . . . imprisoned.”1

Ramirez appeals, raising the following assignments of error:

The trial court lacked jurisdiction to order the Appellant to pay child support to the victim while the Appellant was incarcerated.

Appellant was deprived of his right to a trial when the trial court refused to allow him to withdraw his plea without a hearing.

II. Law and Analysis

A. Child-support order

Ramirez asserts that the trial court had no authority to order him to

pay child support while imprisoned. Ramirez argues that both Ohio and North

Carolina excuse supporting parents from paying child support while incarcerated.

The State concedes that “it was improper for the trial court to order Ramirez to pay

child support as part of the criminal sentence.” We agree.

Our review of felony sentencing is guided by R.C. 2953.08(G)(2),

which states this court may “increase, reduce, or otherwise modify a sentence” or

“vacate the sentence and remand the matter to the sentencing court for

resentencing” upon finding that the sentence is “clearly and convincingly” “contrary

to law.”

1 The court also ordered Ramirez to have no contact with the victim, imposed a fine

and costs, and ordered Ramirez classified as a Tier II sex offender. Ramirez has not challenged any of these penalties on appeal. We note that, as part of the plea negotiations, Ramirez specifically agreed to the no-contact order. Upon a felony conviction, courts usually cannot order hybrid

sentences — sentences that impose both a prison term and community-control

sanctions. Generally, “when a prison term and community control are possible

sentences for a particular felony offense . . . the court must impose either a prison

term or a community-control sanction or sanctions.” (Emphasis added.) State v.

Anderson, 2015-Ohio-2089, ¶ 31 (recognizing that under R.C. 2929.13(B)(1)(a) and

(b), a trial court imposing a sentence for a felony four or five may impose either

prison time or community-control sanctions, but not both). See also State v. Beatty,

2024-Ohio-5684, ¶ 27, quoting Colegrove v. Burns, 175 Ohio St. 437, 438 (1964)

(“Both crimes and criminal punishments are statutory, and ‘the only sentence which

a trial court may impose is that provided for by statute.’”).

However, this court has upheld hybrid sentences resulting from a

plea negotiation when the defendant “invited” the error by negotiating and agreeing

to the plea agreement. State v. Smith, 2023-Ohio-3879, ¶ 27-28 (8th Dist.). Under

the invited-error doctrine, “a party may not take advantage of an error that he,

himself, invited or induced.” Id.

This court has previously recognized that requiring a defendant to pay

child support is a community-control sanction. State v. Latimore, 2015-Ohio-522,

¶ 12 (8th Dist.). Nothing in the record indicates that the State and Ramirez agreed

as part of his plea that his sentence would include child support. The State did not

mention child support in its recitation of the plea agreement. The State did not ask

the court to impose a child-support order at any point in the hearing. Instead, the court raised the issue of child support unprompted. Since the child-support order

was not part of the plea agreement the parties negotiated, the invited-error doctrine

does not apply.

Accordingly, the trial court imposed a sentence that is clearly and

convincingly contrary to law when it sentenced Ramirez to pay child support while

he was incarcerated along with a prison term.

Accordingly, we vacate Ramirez’s sentence in part, and remand to the

trial court to issue a modified journal entry, deleting the order that Defendant pay

child support while incarcerated.2 This mandate does not modify any obligation

North Carolina courts may have imposed on Ramirez to pay child support to the

victim.

Ramirez’s first assignment of error is sustained.

B. Ramirez’s attempt to withdraw his guilty plea

In his second assignment of error, Ramirez asserts that the trial court

erred by denying his postsentencing motion to withdraw his guilty plea without

holding a hearing. We disagree.

2 We note that no sentencing hearing is required under these circumstances. “Under Crim.R. 43(A), a defendant’s presence is not required at any proceeding solely intended to vacate or delete any portion of a sentence, punishment, penalty, or other criminal sanction upon remand from a direct appeal.” State v. Maldonado, 2023-Ohio- 522, ¶ 13 (8th Dist.). “Unless a sentencing modification creates a more onerous sanction, there is no . . . right entitling the defendant to be present at any proceeding, much less a formal hearing, resulting in that sentencing modification.” Id. at ¶ 3. Crim.R. 32.1 states 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.” Manifest injustice is “evidenced by ‘an extraordinary

and fundamental flaw in the plea proceeding.’” State v. McElroy, 2017-Ohio-1049,

¶ 30 (8th Dist.), quoting State v. Hamilton, 2008-Ohio-455, ¶ 8 (8th Dist.).

Postsentence withdrawal of a guilty plea is warranted “only in extraordinary cases.”

State v. Rodriguez, 2016-Ohio-5239, ¶ 22 (8th Dist.).

“We review a trial court’s decision to deny a defendant’s postsentence

motion to withdraw a guilty plea under an abuse-of-discretion standard.” State v.

D-Bey, 2021-Ohio-60, ¶ 58 (8th Dist.). We find Ramirez has not demonstrated

manifest injustice such that the trial court abused its discretion in denying his

request to withdraw his guilty plea.

Ramirez argues that, by sentencing him to 11 months in prison, the

trial court ignored Ohio’s sentencing guidelines, which Ramirez claims include “a

presumption to use the minimum sanction of incarceration . . . .” Ramirez’s

disagreement with the length of his sentence is no reason to vacate his guilty plea.

“A defendant’s change of heart” regarding a guilty plea “is insufficient to

demonstrate manifest injustice, particularly where the change of heart is based upon

a dissatisfaction with the sentence imposed.” State v. Vinson, 2016-Ohio-7604, ¶ 44

(8th Dist.). “The court will not permit a defendant to withdraw his guilty plea merely because he receives a harsher penalty than he subjectively expected.” State v.

Mathis, 2014-Ohio-1481, ¶ 23 (8th Dist.).

Furthermore, Ramirez’s interpretation of Ohio’s sentencing

guidelines is incomplete; there is no blanket presumption of a minimum sentence.

R.C. 2929.11 instructs a court to use “the minimum sanctions that the court

determines accomplish [the] purposes” of felony sentencing, which include to

“protect the public from future crime by the offender . . . and to punish the offender.”

(Emphasis added.) Attempted unlawful sexual conduct with a minor is a fifth-

degree felony; R.C. 2929.14(A)(5) authorizes a prison term between 6 and 12 months

for such offenses. The trial court had discretion to determine that an 11-month

prison term was the minimum sanction that would protect the public from Ramirez

and punish him.

Ramirez next argues the court’s imposition of a sentence “just under

the maximum term” and the unlawful child support order indicates the court was

“swayed by emotion rather than the law.” We disagree. The court’s statements at

sentencing provide no support for Ramirez’s argument. Ramirez fails to explain why

only a trial court motivated by emotion could have imposed a sentence of

permissible length under R.C. 2929.14(A)(5). Again, we note that the 11-month

prison term is authorized by R.C. 2929.14(A)(5). Further, the appropriate remedy

for the unlawful child-support order is to vacate that portion of the sentence, as

above, not to withdraw Ramirez’s plea of guilt. Ramirez claims the court did not give “full and fair consideration” to

his motion to withdraw his plea because it was denied without hearing the day after

the State filed its opposition. The burden of establishing manifest injustice to

support withdrawing a guilty plea belongs to the defendant. State v. Smith, 49 Ohio

St.2d 261 (1977), paragraph one of the syllabus. A hearing on a postsentence motion

to withdraw a guilty plea is only necessary “if the facts alleged by the defendant,

accepted as true, would require that the defendant be allowed to withdraw the plea.”

Rodriguez, 2016-Ohio-5239, at ¶ 23 (8th Dist.). Ramirez’s motion did not present

facts, which if accepted as true, would have allowed him to withdraw his plea.

Further, Ramirez filed his motion on April 29, 2024, and the court denied it on

May 13, 2024. That the trial court denied Ramirez’s motion two weeks after it was

filed is not on its face a manifest injustice that justifies withdrawal of his plea.

Finally, Ramirez argues the trial court erred by sentencing Ramirez

without a presentence-investigation report (“PSI”). We note that both Ramirez and

his trial counsel explicitly requested sentencing without a report. Further, Ramirez

asserts no additional facts that a PSI would have provided the court, justifying

withdrawal of his plea. Ramirez’s claim that a PSI would have provided “more

detailed background on the actual nature of the relationship between the Appellant

and the victim” ignores the court’s thorough inquiry on this topic. Both Ramirez

and the victim attended the sentencing hearing and answered the court’s numerous

questions about their past and present relationship. That Ramirez was sentenced

without a PSI was not a manifest injustice meriting withdrawal of his guilty plea. Though Ramirez does not repeat these arguments on appeal, his

motion alleged that trial counsel told him prior to hearing that he would not be

sentenced to prison. Even if this is true, the trial court informed Ramirez that his

guilty plea could result in a prison term of up to 12 months, which Ramirez stated

he understood. We also find no support for the claim in Ramirez’s motion that he

did not understand what occurred at his sentencing hearing because he was under

the influence of medication. Before Ramirez pled guilty, the court asked him

whether he was under the influence of “any drugs, alcohol or medications,” which

Ramirez denied. Ramirez has not demonstrated the trial court abused its discretion

in denying his motion to withdraw his guilty plea.

Accordingly, Ramirez’s second assignment of error is overruled.

Ramirez’s judgment of conviction is affirmed. His sentence is

vacated in part. This case is remanded to the trial court for modification of the

journal entry as directed herein.

It is ordered that appellee and appellant 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.

LISA B. FORBES, JUDGE

EILEEN A. GALLAGHER, A.J., and KATHLEEN ANN KEOUGH, J., CONCUR