[Cite as State v. Arios, 2017-Ohio-656.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104821




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           JOSE ARIOS

                                                     DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-07-500492-B

        BEFORE: Boyle, J., Kilbane, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                      February 23, 2017
FOR APPELLANT

Jose Arios, pro se
Inmate No. 544-918
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43301


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Frank Romeo Zeleznikar
Assistant County Prosecutor
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, Jose Arios, appeals from a judgment denying his

motion to be sentenced.    He raises one assignment of error for our review:

       Whether the trial court’s failure to properly impose terms of postrelease
       control; its failure to articulate [the sentence] with which the consecutive
       sentences were/are to be served, and its failure to render an [“adjudication
       of guilt”] upon acceptance of appellant’s guilty plea implicates a valid final
       appealable order rendering the plea far less than the required knowingly,
       intelligently and voluntarily made and the attempted sentences void ab initio
       as a matter of law and fact.

       {¶2} Finding no merit to his appeal, we affirm.

I. Procedural History and Factual Background

       {¶3} In May 2008, Arios was convicted by a jury of various drug-related charges,

including seven counts of drug trafficking, three counts of drug possession, and one count

of possessing criminal tools, and was sentenced to 47 years in prison. In his direct

appeal, he raised four arguments: (1) that the trial court violated his rights to due process

when it sentenced him to maximum, consecutive sentences, and failed to conduct a

proportionality review, (2) that his convictions were against the weight of the evidence,

(3) that the trial court erred when it quashed his subpoenas and when it failed to suppress

evidence against him, and (4) that the trial court erred when it did not merge several of

the offenses.   See State v. Arios, 8th Dist. Cuyahoga No. 91506, 2009-Ohio-5814.

        {¶4} In reviewing Arios’s arguments on direct appeal, we found merit to his
fourth assignment of error. We held that three of the trafficking counts and the three
possession counts were allied offenses of similar import. Id. at ¶ 56. We ordered that
the allied offenses be merged; reversed the convictions on all six counts held to be allied
offenses; remanded the case for an allied offense merger under R.C. 2941.25; vacated the
sentence for all six counts held to be allied offenses; and otherwise affirmed. Id.

       {¶5} Arios appealed our decision to the Ohio Supreme Court, but it denied leave

to appeal because it found there were no substantial constitutional questions involved.

See State v. Arios, 124 Ohio St.3d 1478, 2010-Ohio-354, 921 N.E.2d 248. Arios also

filed an application to reopen his appeal, which this court denied.   See State v. Arios, 8th

Dist. Cuyahoga No. 91506, 2010-Ohio-1195.

       {¶6} In June 2012, Arios moved for a new trial, which the trial court granted.

In October of that same year, Arios pleaded guilty to six counts of drug trafficking, four

counts of drug possession, and possessing criminal tools. The trial court sentenced him

the same day, imposing a sentence of 14 years in prison after merging the four possession

counts with four of the trafficking counts. The trial court also imposed five years of

mandatory postrelease control and notified Arios of the consequences of violating the

terms of his postrelease control.

       {¶7} Arios did not timely appeal the trial court’s judgment sentencing him. But

in January 2014, Arios moved to vacate his sentence.     The trial court denied this motion

on February 10, 2014.      Arios filed a notice of appeal of the trial court’s February 10,

2014 judgment on July 23, 2014. This court dismissed the appeal as untimely on July

31, 2014. Arios refiled his notice of appeal of the February 10, 2014 judgment on

September 2, 2014, and this court dismissed the appeal, noting that we already dismissed

the appeal in a prior entry.

       {¶8} On June 20, 2016, Arios filed a “motion for sentencing,” which the trial
court denied on July 12, 2016. It is from this judgment that Arios now appeals.

II. Untimely Petition for Postconviction Relief

      {¶9} A vaguely titled motion, including a motion to correct or vacate a sentence,

may be construed as a petition for postconviction relief under R.C. 2953.21(A)(1) where

(1) the motion was filed subsequent to a direct appeal, (2) claimed a denial of

constitutional rights, (3) sought to render the judgment void, and (4) asked for a vacation

of the judgment and sentence. State v. Reynolds, 79 Ohio St.3d 158, 160-161, 679

N.E.2d 1131 (1997).    After review, we find that Arios’s “motion for sentencing” meets

these four requirements.   Accordingly, we shall construe Arios’s motion for sentencing

as a petition for postconviction relief. See also State v. Meincke, 8th Dist. Cuyahoga No.

96407, 2011-Ohio-6473.

      {¶10} R.C. 2953.21 through 2953.23 set forth the means by which a convicted

defendant may seek to have the trial court’s judgment or sentence vacated or set aside

pursuant to a petition for postconviction relief.           A defendant’s petition for

postconviction relief is a collateral civil attack on his or her criminal conviction. See

State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 48. The statute

affords relief from judgment where the petitioner’s rights in the proceedings that resulted

in his conviction were denied to such an extent the conviction is rendered void or

voidable under the Ohio or United States Constitutions.        R.C. 2953.21(A); State v.

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph four of the syllabus.

      {¶11} A defendant, however, must file any motion to be considered pursuant to
R.C. 2953.21 within the jurisdictional, 180-day time limit delineated in the statute. R.C.

2953.21 provides that the petition must be filed within 180 days from the filing of the trial

transcripts in the petitioner’s direct appeal or, if a direct appeal was not pursued, 180 days

after the expiration of the time in which a direct appeal could have been filed.    Arios did

not file his motion until well beyond the required 180 days.

       {¶12} R.C. 2953.23(A)(1) allows a trial court to entertain an untimely or

successive petition only if: (1) the petitioner was unavoidably prevented from discovering

the facts on which the petition is predicated, or (2) the United States Supreme Court has

recognized a new federal or state right that applies retroactively to the petitioner and the

petition asserts a claim based on that new right. R.C. 2953.23(A)(1)(a).     If the petitioner

is able to satisfy one of these threshold conditions, he or she must then demonstrate that,

but for the constitutional error at trial, no reasonable factfinder would have found him or

her guilty of the offenses of which he was convicted. R.C. 2953.23(A)(1)(b).

       {¶13} Therefore, unless it appears from the record that Arios was unavoidably

prevented from discovering facts upon which he relied in his petition, or the United States

Supreme Court has recognized a new federal or state right that applies retroactively to

him, and that but for constitutional error at trial, no reasonable factfinder would have

found him guilty, we are bound to conclude the trial court was without jurisdiction to

consider his petition for postconviction relief.

III. Analysis

       {¶14} Arios does not even allege, let alone establish, any of the requirements
necessary to bring an untimely petition for postconviction relief. Arios does not claim

that he was unavoidably prevented from discovering the facts upon which he relied in his

petition.   Nor has the United States Supreme Court recognized a new federal or state

right that applies retroactively to Arios.       Thus, he does not meet the threshold

requirements that are necessary before a trial court can consider his petition.

       {¶15} Accordingly, the trial court was without jurisdiction to address his petition

except for his argument that the trial court did not properly impose postrelease control.

It is well settled that a sentence that does not include the statutorily mandated term of

postrelease control is void, is not precluded from appellate review by principles of res

judicata, and may be reviewed at any time, on direct appeal or by collateral attack. State

v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the

syllabus; see also State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶

16.

       {¶16} We have reviewed the trial court’s judgment entry and find that it properly

advised Arios that he would be subject to five years of mandatory postrelease control, and

it further advised him of the consequences he would face if he violated the terms of his

postrelease control.   To the extent that Arios argues the trial court failed to provide him

with the proper oral notices at his sentencing hearing, we do not have a transcript before

us on appeal and, thus, we must presume regularity. State v. Love, 8th Dist. Cuyahoga

No. 102058, 2015-Ohio-1461, ¶ 11.

       {¶17} Arios’s sole assignment of error is overruled.
       {¶18} Judgment affirmed.

       It is ordered that appellee recover from appellant the 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, JUDGE

MARY EILEEN KILBANE, P.J., and
TIM McCORMACK, J., CONCUR
