         [Cite as State v. Temaj-Felix, 2015-Ohio-3967.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :       APPEAL NO. C-140138
                                                           TRIAL NO. B-1102150
        Plaintiff-Appellee,                        :

  vs.                                              :          O P I N I O N.

RODOLFO JOSE TEMAJ-FELIX,                          :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 30, 2015


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J.
Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.




Please note: we have removed this case from the accelerated calendar.
                        OHIO FIRST DISTRICT COURT OF APPEALS



S TAUTBERG , Judge.

       {¶1}    Defendant-appellant Rodolfo Jose Temaj-Felix has taken this appeal

from the Hamilton County Common Pleas Court’s judgment overruling his “Motion

for a New Trial.” We affirm the court’s judgment.

       {¶2}    Temaj-Felix was convicted in November 2011 upon guilty pleas to

aggravated vehicular homicide, aggravated vehicular assault, and two counts of

failure to stop after an accident. He was sentenced to consecutive prison terms

totaling 18 years. On appeal of that 2011 conviction, we affirmed the judgment of the

trial court except for the sentences imposed for the two failure-to-stop offenses,

charged in Counts 5 and 6 of the indictment, and remanded for resentencing on

either Count 5 or Count 6 in conformity with the multiple-counts statute, R.C.

2941.25. State v. Temaj-Felix, 1st Dist. Hamilton No. C-120040, 2013-Ohio-387.

       {¶3}   On remand, the trial court conducted a resentencing hearing and, on

January 21, 2014, journalized a judgment of conviction.1

       {¶4}   After his resentencing hearing, Temaj-Felix filed with the trial court a

motion captioned “Motion for a New Trial.” The court overruled the motion, and

this appeal followed.

       {¶5}   This appeal was not consolidated with Temaj-Felix’s direct appeal in

the case numbered C-140052 from his 2014 judgment of conviction. Nevertheless,

the appeals were briefed, argued, and submitted together. In his brief, Temaj-Felix

presents eight assignments of error. In this appeal, we decide his fourth and eighth

assignments of error only as they challenge the denial of the relief sought in his

“Motion for a New Trial.”



1 Temaj-Felix appealed his 2014 judgment of conviction separately in the case numbered C-
140052.


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                               Standard of Review

       {¶6}   In his motion, Temaj-Felix invoked R.C. 2945.79 and Crim.R. 33,

authorizing the granting of a new trial, Crim.R. 32.1, governing the withdrawal of a

guilty plea, and various constitutional protections. In support of the motion, Temaj-

Felix further argues that the sentence he received was disproportionate to the

seriousness of his conduct and danger to the public, and he sought resentencing on

the ground that the trial court had failed to make the findings to support consecutive

sentences. At the end of the motion, Temaj-Felix also requests that he be permitted

to withdraw his guilty pleas on the ground that he and the state had agreed that his

prison sentences would not exceed 15 years.

       {¶7}   A Crim.R. 32.1 motion to withdraw a guilty plea provides a means for

challenging the knowing, voluntary, and intelligent nature of a plea. A criminal

defendant may move to withdraw a guilty plea at any time after the imposition of

sentence. State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, 773 N.E.2d 522. But

“a plea of guilty in a criminal case precludes the defendant from thereafter making a

motion for new trial.” State v. Frohner, 150 Ohio St. 53, 75, 80 N.E.2d 868, 880

(1948), paragraph thirteen of the syllabus.

       {¶8}   A common pleas court, confronted with a postconviction motion

invoking a rule or statute that does not afford the relief sought, “may recast [the]

motion[] into whatever category necessary to identify and establish the criteria by

which the motion should be judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-

545, 882 N.E.2d 431, ¶ 12, citing Bush, supra, and State v. Reynolds, 79 Ohio St.3d

158, 679 N.E.2d 1131 (1999). To the extent that Temaj-Felix, in his motion, sought to

withdraw his guilty pleas on the ground that there had been agreement concerning




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sentencing, the motion was reviewable under the standards provided by Crim.R.

32.1. See Bush at ¶ 14

       {¶9}   R.C. 2953.21 et seq., governing the proceedings on a petition for

postconviction relief, permit a challenge to a judgment of conviction by an offender

who claims a denial or infringement of his rights in the proceedings resulting in his

conviction that rendered the conviction void or voidable under the state or federal

constitution. R.C. 2953.21(A)(1). Temaj-Felix sought relief from his convictions on

the ground that the trial court’s failure to make consecutive-sentencing findings

violated R.C. 2929.14(C)(4) and denied him an array of constitutional rights,

including the right to due process. Because that claim was asserted after the direct

appeal from his 2011 convictions and sought an order vacating his sentences based

on an alleged denial of a constitutional right, it was reviewable under the standards

provided by the postconviction statutes. See Schlee at ¶ 12; Reynolds at 160.

                           Relief Was Properly Denied

       {¶10} Temaj-Felix’s fourth and eight assignments of error, read together,

challenge the denial of the relief sought in his January 2014 motion. We find no

merit to this challenge.

       {¶11} Crim.R. 32.1 motion to withdraw guilty pleas. We conclude

that the common pleas court properly declined to grant Temaj-Felix relief under

Crim.R. 32.1. On a postsentence motion to withdraw a guilty plea, the movant bears

the burden of demonstrating that withdrawing his plea is necessary “to correct

manifest injustice.” Crim.R. 32.1. See State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d

1324 (1977), paragraph one of the syllabus. The decision to grant or deny the motion

is discretionary with the court and may be disturbed on appeal only upon an abuse of




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that discretion. Smith at paragraph two of the syllabus; State v. Brown, 1st Dist.

Hamilton No. C-010755, 2002-Ohio-5813.

       {¶12} In seeking to withdraw his guilty pleas, Temaj-Felix asserted that he

and the state had “had a plea agreement for a sentence of no more than 15 years

incarceration,” but that the trial court had “not agree[d] with a 15 year prison

sentence” and had instead imposed consecutive prison sentences totaling 18 years.

The record does not show that his pleas were other than knowing, voluntary, and

intelligent. The record clearly demonstrates that there were discussions about a

possible plea agreement. However, the record is also clear that no agreement as to

sentencing was reached between the state and Temaj-Felix. In any event, the trial

court did not agree to any such proposed plea agreement, and is not bound to any

proposed plea agreement. See State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58,

2005-Ohio-3674, 831 N.E.2d 430, ¶ 6. Thus, we can only concur with the common

pleas court’s conclusion, implicit in its judgment overruling his motion, that Temaj-

Felix failed to sustain his burden of demonstrating that withdrawing his pleas was

necessary to correct a manifest injustice. Accordingly, we hold that the court, in

denying withdrawal of his pleas, did not abuse its discretion.

       {¶13} Postconviction relief. Nor did the court err in denying Temaj-

Felix postconviction relief in the form of resentencing based on the lack of

consecutive-sentencing findings. A postconviction petition must be filed with the

common pleas court within 180 days after the transcript of the proceedings is filed in

the direct appeal. Temaj-Felix’s postconviction motion was filed well after the time

prescribed by R.C. 2953.21(A)(2) had expired. R.C. 2953.23 closely circumscribes a

court’s jurisdiction to entertain a late postconviction claim. The petitioner must

show either that he was unavoidably prevented from discovering the facts upon



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which his claim depends, or that his claim is predicated upon a new, retrospectively

applicable federal or state right recognized by the United States Supreme Court since

the time for filing his claim had expired. R.C. 2953.23(A)(1)(a). And he must show

“by clear and convincing evidence that, but for constitutional error at [the

proceedings leading to his conviction], no reasonable factfinder would have found

[him] guilty of the offense of which [he] was convicted.” R.C. 2953.23(A)(1)(b).

       {¶14} The record does not, as it could not, demonstrate that but for the

alleged sentencing error, “no reasonable factfinder would have found [Temaj-Felix]

guilty of the offense[s] of which [he] was convicted.” See R.C. 2953.23(A)(1)(b).

Therefore, R.C. 2953.23 did not confer upon the common pleas court jurisdiction to

entertain his late postconviction claim. While a court always has jurisdiction to

correct a void judgment, State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-

Ohio-5795, 856 N.E.2d 263, ¶ 18-19, the alleged sentencing error, even if

demonstrated, would not have rendered Temaj-Felix’s convictions void. See State v.

Wurzelbacher, 1st Dist. Hamilton No. C-130011, 2013-Ohio-4009, ¶ 8; State v.

Grant, 1st Dist. Hamilton No. C-120695, 2013-Ohio-3421, ¶ 9-16 (holding that a

judgment of conviction is void only to the extent that a sentence is unauthorized by

statute or does not include a statutorily mandated term or if the trial court lacks

subject-matter jurisdiction or the authority to act).

                           The Judgment is Affirmed

       {¶15} The common pleas court properly denied the relief sought in Temaj-

Felix’s postconviction motion. Accordingly, we overrule the assignments of error and

affirm the court’s judgment.

                                                                 Judgment affirmed.

CUNNINGHAM, P.J., and MOCK, J., concur.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



Please note:

       The court has recorded its own entry this date.




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