[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
