[Cite as State v. Gorospe, 2011-Ohio-3291.]


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

STATE OF OHIO                                       C.A. Nos.     25551 & 25552

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
JOSEPH DAMIAN GOROSPE                               COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 06 11 3978

                                 DECISION AND JOURNAL ENTRY

Dated: June 30, 2011



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Joseph Gorospe, appeals from the judgment of the Summit

County Court of Common Pleas. This Court affirms.

                                                I

        {¶2}     In April 2007, Gorospe pleaded guilty to murdering his wife as well as several

other related offenses. Gorospe did not appeal from his convictions, but filed a post-conviction

relief petition in November 2007, based on the alleged ineffectiveness of his trial counsel. The

trial court denied his petition on February 6, 2008, and this Court affirmed the denial of the

petition on appeal. State v. Gorospe, 9th Dist. No. 24111, 2008-Ohio-6435.

        {¶3}     On May 19, 2010, Gorospe filed a motion to withdraw his plea because he

claimed he was not properly advised of post-release control or his Crim.R. 11 rights at the time

he entered his plea. The trial court denied Gorospe’s motion on July 30, 2010. Subsequently,

the court resentenced Gorospe to post-release control by virtue of R.C. 2929.191 and issued its
                                               2


nunc pro tunc sentencing entry on August 16, 2010. Gorospe appealed from both judgment

entries on the same day. See State v. Gorospe, 9th Dist. No. 25551 (challenging the judgment

entry, resentencing Gorospe to post-release control); State v. Gorospe, 9th Dist. No. 25552

(challenging the judgment entry denying Gorospe’s motion to withdraw his plea). This Court

later consolidated the appeals. See State v. Gorospe (Aug. 25, 2010), 9th Dist. Nos. 25551 &

25552.

         {¶4}   Gorospe raises seven assignments of error for our review. For ease of analysis,

we consolidate the assignments of error.

                                               II

                               Assignment of Error Number One

         “THE TRIAL COURT ERRED DURING THE PLEA HEARING WHEN IT
         DID NOT INFORM GOROSPE OF HIS CONSTITUTIONAL RIGHT TO
         COMPULSORY PROCESS, THEREBY FAILING TO STRICTLY COMPLY
         WITH OHIO R. CRIM. P. 11(C)(2)(c) AND RENDERING HIS PLEA INVALID
         BECAUSE IT WAS NOT KNOWINGLY, INTELLIGENTLY AND
         INTELLIGENTLY (sic) MADE, IN VIOLATION OF HIS RIGHTS UNDER
         THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S.
         CONSTITUTION.”

                               Assignment of Error Number Two

         “THE TRIAL COURT ABUSED IT (sic) DISCRETION WHEN IT DENIED
         GOROSPE’S MOTION TO WITHDRAW GUILTY PLEA WHEN HIS PLEA
         WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY
         ENTERED BECAUSE THE TRIAL COURT FAILED TO INFORM HIM OF
         HIS CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS DURING
         THE PLEA HEARING, IN VIOLATION OF HIS RIGHTS TO SUBSTANTIVE
         AND PROCEDURAL DUE PROCESS UNDER THE FIFTH AND
         FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, AND HIS
         RIGHT TO COMPULSORY PROCESS UNDER THE SIXTH AND
         FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.”

                               Assignment of Error Number Three

         “THE TRIAL COURT ERRED WHEN IT APPLIED RES JUDICATA TO BAR
         GOROSPE’S CLAIM THAT HIS PLEA WAS NOT KNOWINGLY,
                                3


VOLUNTARILY AND INTELLIGENTLY ENTERED BECAUSE THE TRIAL
COURT FAILED TO INFORM HIM OF HIS CONSTITUTIONAL RIGHT TO
COMPULSORY PROCESS DURING THE PLEA HEARING, IN VIOLATION
OF HIS RIGHTS TO EQUAL PROTECTION, AND SUBSTANTIVE AND
PROCEDURAL DUE PROCESS UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION.”

                  Assignment of Error Number Four

“THE TRIAL COURT ERRED WHEN IT CONSIDERED GOROSPE’S
MOTION TO WITHDRAW GUILTY PLEA A POST-SENTENCE MOTION,
INSTEAD OF A PRE-SENTENCE MOTION, IN VIOLATION OF HIS
RIGHTS TO EQUAL PROTECTION, AND SUBSTANTIVE AND
PROCEDURAL DUE PROCESS UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION.”

                  Assignment of Error Number Five

“THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
GOROSPE’S MOTION TO WITHDRAW GUILTY PLEA WHEN HIS PLEA
WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY
ENTERED BECAUSE THE TRIAL COURT COMPLETELY FAILED TO
INFORM HIM, PRIOR TO ACCEPTING HIS GUILTY PLEA, OF POST
RELEASE CONTROL, THEREBY FAILING TO COMPLY WITH OHIO R.
CRIM. P 11(C)(2)(a), IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH
AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.”

                  Assignment of Error Number Six

“THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
GOROSPE’S MOTION TO WITHDRAW GUILTY PLEA WHEN HIS PLEA
WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY
ENTERED BECAUSE HE DID NOT UNDERSTAND THE NATURE OF THE
CHARGES AGAINST HIM AND THE POSSIBLE DEFENSES THAT HE
HAD TO THOSE CHARGES, THEREBY FAILING TO COMPLY WITH
OHIO R. CRIM. P. 11(C)(2)(a), IN VIOLATION OF HIS RIGHTS UNDER
THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION.”

                 Assignment of Error Number Seven

“THE TRIAL COURT ERRED IN APPLYING RES JUDICATA TO BAR
GOROSPE’S CLAIM THAT HE DID NOT KNOWINGLY, INTELLIGENTLY
AND VOLUNTARILY ENTER HE (sic) GUILTY PLEA BECAUSE HE DID
NOT UNDERSTAND THE NATURE OF THE CHARGES AGAINST HIM
AND HIS POSSIBLE DEFENSES TO THOSE CHARGES, IN VIOLATION OF
HIS RIGHT TO SUBSTANTIVE AND PROCEDURAL DUE PROCESS
                                                 4


       UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S.
       CONSTITUTION.”

       {¶5}    All of Gorospe’s assignments of error stem from the presumption that his initial

plea and sentence were void due to an error in post-release control. Because Gorospe presumes

that he never received a final judgment of conviction until August 2010, he argues that: (1) his

motion to withdraw was a pre-sentence motion; (2) the doctrine of res judicata does not bar any

of his arguments; and (3) his plea was not knowingly, intelligently, and voluntarily entered. We

address the arguments together as they all stem from a faulty presumption.

       {¶6}    The trial court originally sentenced Gorospe in April 2007. Sentences imposed on

or after July 11, 2006 are not void for post-release control errors, but are correctable pursuant to

the procedure set forth in R.C. 2929.191. State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-

6434, paragraph two of the syllabus. Moreover, the fact that a defendant’s conviction arose as a

result of a plea does not change that result. The Ohio Supreme Court has now clearly indicated

that, even if an offender pleaded pursuant to a defective post-release control notification, only the

defective notification portion of the sentence is void. State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, paragraphs two and three of the syllabus, modifying State v. Bezak, 114 Ohio St.3d

94, 2007-Ohio-3250. Specifically, “res judicata still applies to other aspects of the merits of a

conviction, including the determination of guilt and the lawful elements of the ensuing

sentence.” Fischer at paragraph three of the syllabus. Because Gorospe received his final

judgment of conviction in April 2007, the trial court correctly concluded that his initial plea and

sentence were not void and properly refused to treat his motion to withdraw his plea as a pre-

sentence motion. See State v. Brown, 9th Dist. Nos. 25353 & 25355, 2011-Ohio-1043, at ¶6.

       {¶7}    Gorospe sought to withdraw his plea on the basis that he did not knowingly,

intelligently, and voluntarily enter it. He argues that his plea was defective because he was not
                                                5


informed of post-release control, he was not informed of his right to the compulsory process

under Crim.R. 11, and he did not understand the nature of the charges against him.

       “Pursuant to Crim.R. 32.1, 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. In a post-sentence motion, the burden of
       establishing the existence of a manifest injustice is upon the individual seeking to
       withdraw the plea. A manifest injustice has been defined as a clear or openly
       unjust act. Under the manifest injustice standard, a post-sentence withdrawal
       motion is allowable only in extraordinary cases.” (Internal citations and
       quotations omitted.) State v. Brown, 9th Dist. No. 24831, 2010-Ohio-2328, at ¶9.

Undue delay in a defendant’s Crim.R. 32.1 motion to withdraw is a factor “militating against the

granting of the motion.” State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, at ¶14, quoting

State v. Smith (1977), 49 Ohio St.2d 261, paragraph three of the syllabus.

       {¶8}    “When [a] trial judge does not substantially comply with Crim.R. 11 in regard to a

nonconstitutional right, reviewing courts must determine whether the trial court partially

complied or failed to comply with the rule. If the trial judge partially complied, *** the plea

may be vacated only if the defendant demonstrates a prejudicial effect.” (Emphasis omitted.)

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, at ¶32. Conversely, “[a] complete failure

to comply with the rule does not implicate an analysis of prejudice.” Id., quoting State v.

Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, at ¶22. At the time a defendant enters his plea, he

must be advised of post-release control because it is a part of his actual sentence. State v.

Holcomb, 9th Dist. No. 25165, 2010-Ohio-4656, at ¶10, citing Crim.R. 11(C).

       “Under the doctrine of res judicata, a final judgment of conviction bars a
       convicted defendant who was represented by counsel from raising and litigating
       in any proceeding except an appeal from that judgment, any *** claimed lack of
       due process that *** could have been raised *** on an appeal from that
       judgment.” State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the
       syllabus.
                                                 6


In certain instances, this Court has applied the doctrine of res judicata in appeals stemming from

the denial of a defendant’s Crim.R. 32.1 motion to withdraw. See State v. Rhoten, 9th Dist. No.

24487, 2009-Ohio-3362, at ¶5-7 (applying res judicata where defendant could have raised

arguments on direct appeal, despite never having had one, and raised similar issues in a post-

conviction relief petition); State v. Rexroad, 9th Dist. No. 22214, 2004-Ohio-6271, at ¶8-11

(applying res judicata where defendant could have argued in his direct appeal that the trial court

failed to comply with Crim.R. 11 when accepting his plea).

        {¶9}    All of the alleged errors upon which Gorospe relied in his motion to withdraw

were apparent on the face of the record at the time he first appealed. Gorospe’s plea colloquy

took place on the record and any Crim.R. 11 defect therein could have been raised on direct

appeal. Rexroad at ¶8-11. Accord Rhoten at ¶5-7. Additionally, Gorospe previously pursued a

petition for post-conviction relief and an appeal from its denial, see Gorospe, supra, so he also

had a prior opportunity to challenge his plea based on any evidence that might have existed

outside the trial court record.

        {¶10} The trial court applied res judicata to Gorospe’s arguments that he was not

adequately informed of his right to the compulsory process under Crim.R. 11 and did not fully

understand the charges against him when he pleaded because Gorospe could have raised those

issues either on direct appeal or in his petition for post-conviction relief.       Gorospe’s sole

explanation as to why res judicata does not apply here is that the doctrine does not apply to void

judgments. Gorospe, however, did not have a void judgment and Fischer clearly dictates that, in

defective post-release control notification cases, “[r]es judicata still applies to other aspects of

the merits of a conviction[.]” Fischer at paragraph three of the syllabus. Thus, his argument that

the trial court erred by applying res judicata to the foregoing argument lacks merit.
                                                 7


        {¶11} Assuming that res judicata does not also bar Gorospe’s argument that his plea was

invalid because he was not notified of post-release control, see State v. Hubbard, 9th Dist. No.

25141, 2011-Ohio-2770, at ¶2-14 (applying res judicata to certain portions of motion to

withdraw, but not the portion regarding post-release control), we similarly must conclude that the

trial court did not err by refusing to allow Gorospe to withdraw his plea. The trial court

determined that the judge who accepted Gorospe’s plea partially complied with Crim.R. 11 when

advising Gorospe of post-release control. The transcript of the plea colloquy reflects that the

judge who accepted the plea erroneously referred to post-release control as “parole” and did not

indicate that the term was mandatory, but did state that there was a “possibility” Gorospe could

receive another five years of “parole” on his most serious charge and another three years of

“parole” on his third-degree felony. Gorospe argues that the trial court “completely failed to

inform [him] of post[-]release control,” but does not cite any case law for that proposition or

explain why the trial court’s statements did not amount to partial compliance. See App.R.

16(A)(7). Absent any argument from Gorospe, we cannot conclude that the trial court erred by

finding there was partial compliance with Crim.R. 11, regarding Gorospe’s post-release control

notification.

        {¶12} Because the trial judge who accepted Gorospe’s guilty plea partially complied

with Crim.R. 11, Gorospe had to demonstrate that he would not have pleaded guilty, had he

known he would be subject to post-release control. See Clark at ¶32 (holding that partial

compliance with Crim.R. 11 implicates a prejudice analysis). The trial court found that Gorospe

failed to prove that he would not have pleaded guilty if he was properly informed of post-release

control because his charges were extremely serious and carried a mandatory sentence of fifteen

years to life. As a result of the negotiated plea, he was sentenced to twenty-three years to life in
                                                 8


prison. The record also reflects that Gorospe did not express any concern when he was informed

of post-release control at his sentencing hearing and that he waited three years before he sought

to withdraw his plea. See Bush at ¶14 (noting that delay in filing a Crim.R. 32.1 motion is a

factor weighing against its granting). The only evidence upon which Gorospe relies to argue that

he proved prejudice is his own conclusory statement in his affidavit, indicating that he would not

have pleaded if he had known about post-release control. Based on the record before us, we

cannot say that the trial court abused its discretion by determining that Gorospe failed to

demonstrate the existence of manifest injustice. Accordingly, the trial court did not err by

denying his motion to withdraw. Based on the foregoing analysis, all of Gorospe’s assignments

of error are overruled.

                                                III

       {¶13} Gorospe’s assignments of error are overruled. The judgment of the Summit

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 Summit, 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
                                                9


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.


                                                     BETH WHITMORE
                                                     FOR THE COURT


MOORE, J.
CONCURS


CARR, P. J.
CONCURS IN JUDGMENT ONLY, SAYING:

       {¶14} I would affirm solely on the basis of res judicata. As Gorospe’s sentence was

never void, he could have raised on direct appeal the issue of the voluntariness of his plea based

on the failure of the trial court to notify him of post-release control at the plea hearing. Having

failed to do so, he is now barred from raising that issue under the doctrine of res judicata

pursuant to State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238.



APPEARANCES:

JAMES D. OWEN, and TODD A. LONG, Attorneys at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
