[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.
                                                 4


       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.
