[Cite as State v. Deskins, 2011-Ohio-2605.]


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

STATE OF OHIO                                        C.A. No.      10CA009875

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
WILLIAMS G. DESKINS                                  COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   02CR061577

                                 DECISION AND JOURNAL ENTRY

Dated: May 31, 2011



        MOORE, Judge.

        {¶1}     Appellant, William Deskins, appeals from the judgment of the Lorain County

Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     On October 15, 2002, William Deskins was indicted by the Lorain County Grand

Jury on one count of rape, with a sexually violent predator specification, in violation of R.C.

2907.02(A)(1)(b), a felony of the first degree, and four counts of rape in violation of R.C.

2907.02(A)(1)(b), felonies of the first degree. The indictment alleged that between January 1,

1993, and December 31, 1997, Deskins engaged in sexual conduct with his daughter, Danielle

Deskins, who was between the ages of seven and eleven.

        {¶3}     On July 16, 2003, Deskins entered a plea of guilty to the charges in the

indictment, and the State, in consideration of the plea, dismissed the sexually violent predator

specification. On September 3, 2003, the trial court sentenced Deskins to five years in prison for
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each of the five counts and ordered the sentences to run consecutively, for an aggregate sentence

of twenty-five years.

       {¶4}    On October 12, 2009, Deskins filed a motion for resentencing. On November 25,

2009, he filed a motion to withdraw his guilty plea. On March 29, 2010, the trial court held a

hearing on the motion to withdraw the guilty plea and denied the motion to withdraw as well as

the motion to dismiss on April 5, 2010. The trial court granted his motion for resentencing. On

April 16, 2010, the court reimposed the original sentence and properly imposed a mandatory

five-year period of postrelease control.

       {¶5}    Deskins timely filed a notice of appeal. He raises five assignments of error for

our review.

                                                  II.

                                  ASSIGNMENT OF ERROR I

       “THE TRIAL COURT ERRED WHEN IT DENIED [DESKINS’] MOTION TO
       WITHDRAW HIS FORMERLY ENTERED GUILTY PLEA.”

       {¶6}    In his first assignment of error, Deskins contends that the trial court erred when it

denied his motion to withdraw his guilty plea. We do not agree.

       {¶7}    Crim.R. 32.1 provides:

       “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.”

       {¶8}    The decision to grant or deny a motion to withdraw a guilty plea “is within the

sound discretion of the trial court. * * * Thus, unless it is shown that the trial court acted unjustly

or unfairly, there is no abuse of discretion.” (Citations omitted.) State v. Xie (1992), 62 Ohio

St.3d 521, 526. Under this standard, we must determine whether the trial court’s decision was
                                                 3


arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,

219. When applying the abuse of discretion standard, this Court may not substitute its judgment

for that of the trial court. Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621.

       {¶9}    The Ohio Supreme Court has held that an error in postrelease control notification

does not result in a void sentence. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. In

Fischer, the Supreme Court held “that when a judge fails to impose statutorily mandated

postrelease control as part of a defendant’s sentence, that part of the sentence is void and must be

set aside.” (emphasis sic.) Id. at ¶26 (footnote omitted). Because the remainder of his sentence

remained intact, Deskins’ motion to withdraw his guilty plea is treated as a post-sentence motion

and he must establish the existence of a manifest injustice. See, e.g., State v. Christie, 3d Dist.

No. 4-10-04, 2011-Ohio-520, at ¶24; State v. Thomas, 1st Dist. Nos. C-100411 & C-100412,

2011-Ohio-1331, at ¶17; and State v. Gonzalez, 6th Dist. Nos. L-10-1168 & L-10-1169, 2011-

Ohio-1542, at ¶34.

       {¶10} When the trial court considered Deskins’ motion to withdraw, Fischer had not

been decided, and the controlling authority required the court to consider the sentence as void.

Accordingly, the trial court applied the more lenient pre-sentence motion standard which

provides that the motion “should be freely and liberally granted.” State v. Boswell, 121 Ohio

St.3d 575, 2009-Ohio-1577, at ¶1, quoting Xie, 62 Ohio St.3d at 527. During the trial court

hearing, Deskins argued that the basis for the withdrawal of his guilty plea was the receipt of a

letter from his daughter, the victim of the rape conviction. In the letter, she shared general

information about herself and Deskins’ family. Deskins’ brief states that the letter expressed

“her loving feelings toward [him] and encourage[ed] him to seek early release.”
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         {¶11} The trial court does not abuse its discretion when the four factors enumerated in

State v. Gardner, 9th Dist. No. 08CA009520, 2009-Ohio-6505, at ¶5, are present. Those factors

include that (1) the defendant received representation by competent counsel; (2) prior to entering

the guilty plea, the trial court provided a full hearing pursuant to Crim.R. 11; (3) the trial court

provided a full hearing on the motion to withdraw the guilty plea; and (4) the trial court

considered the defendant’s arguments in support of his motion to withdraw the guilty plea. Id. at

¶¶5-6.

         {¶12} Deskins does not challenge the first three factors enumerated in Gardner. Instead,

he argues that the trial court erred because “there were no discussions on the record as to whether

the trial court took into account the contents of the [victim’s] letter in deciding whether there was

a legitimate basis for the withdrawal of [his] guilty plea.” While the trial court found that he

made a “knowing, intelligent and voluntary waiver of his constitutional rights[,]” Deskins argues

that nothing in the record suggests that the trial court considered the victim’s letter in its ruling

on the motion to withdraw the guilty plea.

         {¶13} The record indicates that on March 22, 2010, the trial court held a hearing on

Deskins’ motion to withdraw the guilty plea. There, Deskins argued that the basis for the

withdrawal of his guilty plea was a letter written by his daughter, the rape victim. He averred

that the letter could be used in a new trial because “it doesn’t seem as if it’s a letter from

somebody who was raped or sexually molested[.]” The trial court overruled the State’s objection

to the trial judge reviewing the letter, and obtained a copy of the letter for review. On April 5,

2010, the trial court denied Deskins’ motion to withdraw his guilty plea, concluding that he made

a “knowing, intelligent and voluntary waiver of his constitutional rights[.]” In light of the

court’s ruling specifically overruling the State’s objection to review of the letter from the
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daughter, we cannot infer that the trial court failed to consider it, notwithstanding the fact that the

letter was not specifically mentioned in the entry.

       {¶14} Courts have held that “[w]hen considering whether newly-discovered evidence

warrants permitting withdrawal of a guilty plea, a trial court should consider” the following

factors: (1) whether the defendant may have a complete defense to the charges, (2) the length of

time between the entry of the guilty plea and the time that the motion to withdraw the guilty plea

was filed, and (3) the defendant’s diligence in discovering the evidence. State v. Gobard, 12th

Dist. No. CA2006-03-025, 2007-Ohio-461, at ¶11, citing State v. Van Dyke, 9th Dist. No.

02CA008204, 2003-Ohio-4788.

       {¶15} Here, nothing in the record indicates that Deskins has set forth any specific

reasons for how this letter provides a complete defense to Deskins. In addition, the time between

when Deskins’ entered the guilty plea and filed the motion to withdraw the guilty plea was more

than six years. Courts have found that a period of only months between the guilty plea and the

motion to withdraw is an unreasonable delay. See Van Dyke, at ¶19, citing United States v.

Spencer, (C.A.6, 1987), 836 F.2d 236. Finally, Deskins did not make an effort to demonstrate

that he could not, with reasonable diligence, have produced any evidence supporting his

innocence before his plea was entered. See Van Dyke at ¶19.

       {¶16} Deskins has failed to establish either the existence of a manifest injustice or an

abuse of discretion by the trial court. Crim.R. 32.1; Xie, 62 Ohio St.3d at 526. Thus, we cannot

conclude that the trial court’s denial of the motion to withdraw the guilty plea was arbitrary,

unreasonable, or unconscionable. Blakemore, 5 Ohio St.3d at 219. Deskins’ first assignment of

error is overruled.
                                                 6


                                 ASSIGNMENT OF ERROR II

       “SINCE [] DESKINS[‘] SENTENCE ON AT LEAST ONE OF THE FIVE
       COUNTS OF RAPE HAD EXPIRED, THE TRIAL COURT DID NOT HAVE
       JURISDICTION TO CORRECT THE ERRONEOUS SENTENCE AND
       IMPOSE POST RELEASE CONTROL AND THUS SHOULD HAVE
       GRANTED HIS MOTION TO DISMISS.”

       {¶17} In his second assignment of error, Deskins contends that the trial court did not

have jurisdiction to resentence him to properly impose postrelease control, and thus should have

granted his motion to dismiss. We do not agree.

       {¶18} This Court has previously held that the trial court has authority to resentence a

defendant to properly impose postrelease control if the defendant “had not been released from

prison or completed his prison term at the time of the resentencing hearing.” State v. Bodiford,

9th Dist. No. 10CA009770, 2010-Ohio-5923, at ¶8. This is consistent with the Ohio Supreme

Court case, State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, which held that in cases

where postrelease control is required but not included in the sentence, “ * * *the state is entitled

to a new sentencing hearing to have postrelease control imposed on the defendant unless the

defendant has completed his sentence.” Id. at syllabus; see also State v. Bloomer, 122 Ohio St.3d

200, 2009-Ohio-2462, at ¶70 (noting that a defendant can not be subjected to another sentencing

hearing after he “has completed the prison term imposed in his original sentence”); State v.

Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, at ¶18 (concluding that defendant could not be

resentenced because he had “already served the prison term ordered by the trial court[.]”).

       {¶19} Deskins argues that because he was sentenced to multiple consecutive terms he

has necessarily completed at least one of them and for that sentence, he cannot have post release

control imposed. However, the Fifth District, in State v. Tharp, 5th Dist. No. 07-CA-9, 2008-

Ohio-3995, held that a journalized sentence that includes consecutive sentences does not expire
                                                 7


until the aggregate time of the consecutive sentences expires. Id. at ¶14. There, the defendant

similarly argued that the trial court did not have jurisdiction to resentence him because his

journalized sentence for which postrelease control was applicable had expired. The Fifth District

concluded that the journalized sentence had not expired when the trial court resentenced the

defendant because the original sentence was for an aggregate term of eight years.

       {¶20} Here, Deskins may have served some portion of the sentence imposed, but he has

not completed his prison term of twenty years or been released from prison. Thus, the trial court

had jurisdiction to resentence him.      Accordingly, Deskins’ fourth assignment of error is

overruled.

                                ASSIGNMENT OF ERROR III

       “[] DESKINS WAS DENIED HIS EQUAL PROTECTION AND DUE
       PROCESS RIGHTS WHEN THE TRIAL COURT FAILED TO STATE IN A
       MULTI-COUNT CONVICTION, SEPARATE PROVISIONS FOR POST
       RELEASE CONTROL FOR EACH CONVICTION AND IS THUS VOID.”

       {¶21} In his third assignment of error, Deskins argues that the trial court erred when it

failed to state a separate provision for postrelease control for each conviction and that the

conviction is thus void. We do not agree.

       {¶22} R.C. 2967.28 requires, when applicable, that a sentencing court include a term of

postrelease control in the sentence. It does not permit a trial court to order a term of postrelease

control for each separate felony conviction; only “[o]ne term of post-release control for multiple

convictions is proper.” State v. Maag, 3d Dist. No. 5-08-35, 2009-Ohio-90, at ¶18. See also,

State v. Masterson, 11th Dist. No. 2009-P-0064, 2010-Ohio-4939, at ¶27, fn. 1; State v. Simpson,

8th Dist. No. 88301, 2007-Ohio-4301, at ¶109. Furthermore, “[w]hen identical post-release

control requirements apply to multiple prison terms, the same notification may apply to each of

the offenses[.]” State v. Sulek, 2d Dist. No. 09CA75, 2010-Ohio-3919, at ¶23. Thus, the trial
                                                8


court did not err when it failed to state a separate provision for postrelease control for each

conviction. Deskins’ third assignment of error is overruled.

                                ASSIGNMENT OF ERROR IV

       “CONVICTION ON COUNTS ONE, TWO, THREE, FOUR AND FIVE WERE
       (SIC) NOT SUPPORTED BY SUFFICIENT EVIDENCE.”

                                ASSIGNMENT OF ERROR V

       “THE JURY VERDICT FINDING [] DESKINS GUILTY OF FIVE COUNTS
       OF RAPE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

       {¶23} Deskins argues that his conviction was not supported by sufficient evidence and

that the verdict was against the manifest weight of the evidence. Because Deskins entered a

guilty plea, we need not address the merits of these contentions.

       “[A] counseled plea of guilty is an admission of factual guilt so reliable that,
       where voluntary and intelligent, it quite validly removes the issue of factual guilt
       from the case. In most cases, factual guilt is a sufficient basis for the State’s
       imposition of punishment. A guilty plea, therefore, simply renders irrelevant
       those constitutional violations not logically inconsistent with the valid
       establishment of factual guilt and which do not stand in the way of a conviction, if
       factual guilt is validly established.” Menna v. New York (1975), 423 U.S. 61, 63,
       fn. 2.

       {¶24} While not all constitutional violations are waived by entering a guilty plea, “those

relating to factual guilt are.” State v. McGee (Jul. 2, 1997), 9th Dist. No. 96CA006507, at *2,

citing United States v. O’Donnell (C.A.9, 1976), 539 F.2d 1233, 1236.           Here, Deskins is

attempting to challenge the factual sufficiency of the evidence as well as the manifest weight of

the evidence. He is not permitted to raise such a claim where a guilty plea has resulted in a

conviction. See State v. Phillips, 9th Dist. No. 24198, 2008-Ohio-6795, at ¶10. Further, per

Fischer, these matters are not properly before us. The scope of an appeal from a resentencing

hearing to properly impose postrelease control is limited to issues arising at the resentencing

hearing. Id. at ¶40. Finally, Deskins did not appeal the court’s original sentence, and his
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arguments are barred by res judicata. Thus, we decline to address Deskins’ fourth and fifth

assignments of error.

                                                III.

       {¶25} We decline to address Deskins’ fourth and fifth assignments of error.            His

remaining assignments of error are overruled. The judgment of the Lorain 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 Lorain, 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(E). 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.


                                                       CARLA MOORE
                                                       FOR THE COURT

WHITMORE, J.
CONCURS
                                          10


CARR, P. J.
CONCURS IN JUDGMENT ONLY

APPEARANCES:

DENISE G. WILMS, Attorney at Law, for Appellant.

DENNIS WILL, Prosecuting Attorney, and BILLIE JO BELCHER, Assistant Prosecuting
Attorney, for Appellee.
