[Cite as State v. Aguilar, 2015-Ohio-5174.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                         C.A. No.    15AP0018

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
MELVIN AGUILAR                                        COURT OF COMMON PLEAS
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   10-CR-0264

                                  DECISION AND JOURNAL ENTRY

Dated: December 14, 2015



        HENSAL, Presiding Judge.

        {¶1}     Melvin Aguilar appeals a judgment of the Wayne County Court of Common Pleas

that resentenced him for felonious assault. He also appeals the denial of his motion to withdraw

his plea. For the following reasons, this Court affirms.

                                                 I.

        {¶2}     In 2010, Mr. Aguilar pleaded guilty to one charge of felonious assault with an

accompanying firearm specification for which the trial court sentenced him to eight years of

imprisonment. This Court upheld his conviction and sentence on appeal. State v. Aguilar, 9th

Dist. Wayne No. 10CA0051, 2011-Ohio-6008. In 2013, Mr. Aguilar moved to withdraw his

plea, which the trial court denied. In 2014, he filed a motion for sentencing, arguing that the

court failed to properly impose post-release control. Upon review of the motion, the trial court

scheduled a resentencing hearing. Shortly before the hearing, Mr. Aguilar again moved to

withdraw his plea. The trial court denied his motion and resentenced him to eight years. Mr.
                                               2


Aguilar has appealed the court’s decisions, assigning two errors, which we have reordered for

ease of consideration.

                                               II.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ABUSED ITS DISCRETION BY                               DENYING
       APPELLANT’S MOTION TO WITHDRAW GUILTY PLEA.

       {¶3}    Mr. Aguilar argues that the trial court erred when it denied his motion to

withdraw his plea. Criminal Rule 32.1 provides 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.” “A motion made pursuant to Crim.R. 32.1 is addressed to the sound discretion of the

trial court * * *.” State v. Smith, 49 Ohio St.2d 261 (1977), paragraph two of the syllabus. “At

the same time, the extent of the trial court’s exercise of discretion * * * is determined by the

particular provisions that govern the motion under which the defendant is proceeding * * *.”

State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, ¶ 33. “[A] presentence motion to

withdraw a guilty plea should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521,

527 (1992). A defendant who moves to withdraw his plea after the imposition of sentence, on

the other hand, “has the burden of establishing the existence of manifest injustice.” Smith at

paragraph one of the syllabus.

       {¶4}    Mr. Aguilar argues that the trial court incorrectly treated his motion to withdraw

as a post-sentence motion. He notes that, at the time he filed his motion, the court had ordered

him to be brought back to court for re-sentencing. He also argues that the court should have held

a hearing to determine whether he had a legitimate basis for withdrawing his plea before

deciding his motion.
                                                3


       {¶5}    The trial court scheduled a resentencing hearing because it had not correctly

imposed post-release control at the original sentencing hearing. This Court has explained that,

even if the part of a sentence that imposes post-release control is void, a motion to withdraw plea

filed after sentencing must be treated as a post-sentence motion. State v. McCallister, 9th Dist.

Summit No. 26722, 2013-Ohio-5559, ¶ 7. Accordingly, the trial court correctly determined that

Mr. Aguilar’s motion to withdraw was a post-sentence motion.

       {¶6}    The doctrine of res judicata “bars the assertion of claims against a valid, final

judgment of conviction that have been raised or could have been raised on appeal.” State v.

Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, ¶ 59. It extends to arguments “made in support

of a motion to withdraw a plea under Crim.R. 32.1.” State v. Sebestyen, 9th Dist. Medina No.

12CA0055-M, 2013-Ohio-2606, ¶ 9, quoting State v. Molnar, 9th Dist. Summit No. 25267,

2011-Ohio-3799, ¶ 9. A defendant, therefore, may not raise issues in a successive motion to

withdraw a guilty plea that were raised or could have been raised in his initial motion. State v.

Kimbro, 9th Dist. Lorain No. 13CA010506, 2014-Ohio-4869, ¶ 7.

       {¶7}    In 2013, Mr. Aguilar filed a post-sentence motion to withdraw his plea, which the

trial court denied. He did not appeal its decision. Mr. Aguilar has not identified any basis for

withdrawing his plea that he could not have raised at the time of his original motion. We,

therefore, conclude that his arguments are barred by res judicata. We also conclude that the

court did not err when it denied his motion without holding a hearing on it. State v. Greene, 9th

Dist. Summit No. 25773, 2012-Ohio-791, ¶ 6. Mr. Aguilar’s second assignment of error is

overruled.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT FAILED TO PROPERLY ADVISE THE APPELLANT
       OF POST-RELEASE CONTROL.
                                                 4



       {¶8}      Mr. Aguilar argues that the trial court improperly used a nunc pro tunc entry to

add to his sentence that, if he violates post-release control, he can be subject to a new prison term

of up to nine months. The record, however, does not support his argument. Following the

resentencing hearing, the trial court issued a sentencing entry on March 31, 2015. The entry

contained language informing Mr. Aguilar that, if he violates post-release control, he can be

returned to prison for period up to nine months at one time. On April 14, 2015, the court issued

a nunc pro tunc sentencing entry, which only corrected the amount of his jail time credit. The

nunc pro tunc entry did not change any language regarding post-release control.

       {¶9}      Mr. Aguilar also repeats his argument that the trial court applied the wrong

standard of review when it considered his motion to withdraw his plea. As explained earlier,

because the resentencing hearing only addressed post-release control, Mr. Aguilar’s motion to

withdraw his plea was a post-sentence motion. McCallister, 2013-Ohio-5559 at ¶ 7.

       {¶10} Mr. Aguilar also argues that the post-release control defect made his entire

sentence void. The Ohio Supreme Court, however, has “rejected an argument that an entire

sentence is void because of an error in imposing postrelease control, holding that only the

offending portion of the sentence is subject to review.” State ex rel. Gregley v. Friedman, __

Ohio St.3d __, 2014-Ohio-4796, ¶ 13, citing State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-

6238, ¶ 38-39.

       {¶11} Mr. Aguilar also argues that, because of the post-release control error, the trial

court’s original sentencing entry was insufficient under Criminal Rule 32(C). We note that Mr.

Aguilar did not make this argument in the trial court and that he could have raised it on direct

appeal. Furthermore, “the technical failure to comply with Crim.R. 32(C) * * * is not a violation

of a statutorily mandated term, so it does not render the judgment a nullity.” (Emphasis sic.)
                                                 5


State ex rel. DeWine v. Burge, 128 Ohio St.3d 236, 2011-Ohio-235, ¶ 19. Accordingly, even if

the original sentencing entry did not comply with Rule 32(C), it would not mean that Mr.

Aguilar’s motion to withdraw plea was a pre-sentence motion. Mr. Aguilar’s first assignment of

error is overruled.

                                                III.

       {¶12} Mr. Aguilar’s assignments of error are overruled. The judgment of the Wayne

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, 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.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT
                                         6




MOORE, J.
SCHAFER, J.
CONCUR.

APPEARANCES:

OSCAR E. RODRIGUEZ, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
