State v. Viccaro , 2013 Ohio 3437 ( 2013 )

[Cite as State v. Viccaro, 2013-Ohio-3437.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99816
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL VICCARO
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-541019
BEFORE: E.A. Gallagher, P.J., McCormack, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: August 8, 2013
FOR APPELLANT
Michael Viccaro, pro se
Inmate No. 593-977
2500 South Avon-Belden Rd.
Grafton, OH 44044
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, P.J.:
{¶1} In this accelerated appeal, Michael Viccaro (“Viccaro”) appeals the
decision of the trial court denying his motion to withdraw his guilty plea. Viccaro
argues that his term of postrelease control was not properly imposed and, thus, cannot
provide the basis for the current charge of escape. Finding merit to the instant appeal,
we reverse the decision of the trial court and remand for proceedings consistent with this
opinion.
{¶2} In 2004, Viccaro pleaded guilty to one count of kidnapping and one count
of aggravated theft, and the trial court sentenced him to a three-year prison term. Prior
to the expiration of Viccaro’s prison sentence, the trial court conducted a resentencing
hearing and advised Viccaro that upon his release he would be subjected to a five-year
period of postrelease control supervision. Viccaro violated the terms and conditions of
his postrelease control supervision and the Cuyahoga County Grand Jury indicted him
with one count of escape. Viccaro pleaded guilty to the charge of escape, and the trial
court sentenced him to a three-year term of imprisonment.
{¶3} Two years and three months after his sentence on the charge of escape,
Viccaro filed a motion to withdraw his guilty plea, which the trial court denied.
Viccaro appeals, raising the following assignment of error:
The trial court abused its discretion and/or committed plain error when it
denied Mr. Viccaro’s motion to withdraw his guilty plea and to dismiss
“with prejudice” his conviction for the crime of escape from a void post
release control supervision. State v. Renner, 2011-Ohio-502, 2011 Ohio
App. LEXIS 445 (2d Dist.).
{¶4} In his appeal, Viccaro claims that the trial court’s journal entry informing
him of postrelease control was not sufficient and, therefore, is void. Viccaro reasons
that because this void term of postrelease control cannot provide the basis for the charge
of escape, the trial court erred when it denied his motion to withdraw his guilty plea.
{¶5} In response to Viccaro’s arguments, the state moved to supplement the
record, filing the following documents: the entry of conviction for the underlying felony
in case number CR-450403, the transcript from the re-sentencing hearing at which the
court advised him of the imposition of postrelease control1 and the journal entry of the
resentencing. The state claims that any error on the part of the trial court was clerical
and has no bearing on Viccaro’s motion to withdraw his guilty plea.
{¶6} Pursuant to Crim.R. 32.1, a defendant who seeks to withdraw a plea of
guilty after the imposition of sentence has the burden of establishing the existence of
manifest injustice. See State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977);
State v. Patrick, 8th Dist. Cuyahoga No. 77644, 2000 Ohio App. LEXIS 3780 (Aug. 17,
2000). A postsentence motion made pursuant to Crim.R. 32.1 is addressed to the sound
discretion of the trial court and “the good faith, credibility and weight of the movant’s
assertions in support of the motion are matters to be resolved by that court.” Smith.
{¶7} Viccaro claims that manifest injustice occurred in the instant case because
1We note that although the burden of this appeal lies with Viccaro, it was the
state who supplied this court with the transcript of the resentencing hearing.
the trial court did not properly impose the underlying term of postrelease control. In
particular, Viccaro argues that because the trial court did not journalize the consequences
for violating postrelease control, said postrelease control is void and cannot be used to
substantiate a charge of escape. Viccaro asks this court to vacate his conviction and
sentence and remand the case to the trial court with instructions to dismiss the matter
with prejudice.
{¶8} In State v. Fischer, the Supreme Court of Ohio held that a void postrelease
control sentence “is not precluded from appellate review by principles of res judicata,
and may be reviewed at any time, on direct appeal or collateral attack.” Fischer, 128
Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, paragraph one of the syllabus. The
Supreme Court of Ohio recently applied Fischer “to every criminal conviction, including
a collateral attack on a void sentence that later results in a guilty plea to the crime of
escape.” State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio-5144, 980 N.E.2d 960. We
conclude, and the state concedes, that Billiter applies to the instant case, permitting this
court to consider Viccaro’s motion to withdraw his guilty plea.
{¶9} We must now consider whether the court’s imposition of postrelease
control in 2008 is void. Viccaro argues that at the resentencing hearing, the court
imposed a term of postrelease control for five years, but failed to include the
consequences of violating postrelease control in the journal entry, and therefore, the
sentence is void. We note that while the journal entry does not include the
consequences of violating postrelease control, the trial court did inform Viccaro of the
consequences at the resentencing hearing.
{¶10} The Supreme Court of Ohio requires a trial court to give notice of
postrelease control both at the sentencing hearing and by incorporating it into the
sentencing entry. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d
864, paragraph one of the syllabus. This court follows that requirement. In State v.
Rice, 8th Dist. Cuyahoga No. 95100, 2011-Ohio-1929, this court found the trial court
committed reversible error by failing to state in its sentencing journal entry that an
additional term of incarceration could be imposed if the defendant violated the terms of
postrelease control. Id. In State v. Nicholson, 8th Dist. Cuyahoga No. 95327,
2011-Ohio-14, the court’s journal entry included the language that the defendant was
required to serve a five-year period of postrelease control, but failed to include what
repercussions would follow a postrelease control violation. This court determined that
the trial court “must notify the offender, both at the sentencing hearing and in its journal
entry, that the parole board could impose a prison term if the offender violates the terms
and conditions of postrelease control.” Id., citing R.C. 2929.191(B)(1).
{¶11} In Nicholson and Rice, both defendants were in prison for their
underlying charges at the time of their appeals; their cases were then remanded to the
trial court to correct the sentencing entries pursuant to R.C. 2929.191. In the present
case, however, Viccaro had already served his prison term for the charges underlying the
postrelease control. “It is well settled that once the sentence for the offense that carries
postrelease control has been served, the court can no longer correct sentencing errors by
resentencing.” State v. Douse, 8th Dist. Cuyahoga No. 98249, 2013-Ohio-254, citing
State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961. Therefore, any
error in Viccaro’s sentencing may not be corrected by resentencing.
{¶12} In State v. Cash, 8th Dist. Cuyahoga No. 95158, 2011-Ohio-938, this
court stated that “the failure to properly notify a defendant of postrelease control and to
incorporate that notice into the court’s sentencing entry renders the sentence void.” In
Cash, the court sentenced the defendant to a term of imprisonment that included
postrelease control. Following his release from prison, the defendant failed to comply
with the terms of postrelease control and the state charged him with escape. The
defendant pleaded guilty and was sentenced to prison. The trial court later granted
Cash’s motion to withdraw his plea and dismissed the indictment. The trial court stated
that the defendant’s escape indictment was premised on an invalid postrelease control
that does not comply with the statutory mandates regarding the imposition of postrelease
control.
{¶13} This court affirmed the trial court’s ruling, holding that the trial court
failed to notify the defendant of the specific terms of postrelease control. In particular,
this court found that the trial court’s failure to properly advise the defendant of
postrelease control “renders his sentence void, i.e., as if it never occurred.” Id. In
affirming the dismissal of the escape charge, this court relied on Hernandez v. Kelly, 108
Ohio St.3d 395, 2006-Ohio-126, 844 N.E.2d 301, wherein the Ohio Supreme Court
stated that “nothing in R.C. 2967.28 authorizes the Adult Parole Authority to exercise its
postrelease control authority if postrelease control is not imposed by the trial court in its
sentences.” Id. Based on that case, this court held that
the Adult Parole Authority lacked jurisdiction to impose postrelease
control on Cash because it was not included in a valid sentence, nor was
there a judicial order imposing postrelease control. Without a valid form
of detention, Cash cannot be convicted of escape. Id.{¶14} We cannot ignore the similarities between Cash and the instant case.
Here, the court failed to include the consequences of violating Viccaro’s five-year period
of postrelease control in its journal entry. Based on this court’s precedent, this
deficiency renders the sentence void. Rice, 8th Dist. Cuyahoga No. 95100,
2011-Ohio-1929; Nicholson, 8th Dist. Cuyahoga No. 95327, 2011-Ohio-14.
Additionally, because Viccaro completed his sentence of imprisonment on the charges
underlying his postrelease control sanctions, the sentencing entry may not be corrected.
Douse, 8th Dist. Cuyahoga No. 98249, 2013-Ohio-254. Therefore, no postrelease
control sanctions were lawfully included in a valid sentence, and the Adult Parole
Authority lacked jurisdiction to impose postrelease control on Viccaro. Further,
Viccaro cannot be convicted of escape where there is no valid form of detention.
Therefore, we find the trial court erred in denying Viccaro’s motion to withdraw his
guilty plea and motion to dismiss his charge of escape.
{¶15} Viccaro’s sole assignment of error is sustained.
{¶16} The judgment of the trial court is reversed, and the matter is remanded
with instructions to dismiss the charge of escape, release Viccaro from prison and from
further postrelease control supervision.
It is ordered that appellant recover of said appellee 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
lower 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.
EILEEN A. GALLAGHER, PRESIDING JUDGE
TIM McCORMACK, J., and
EILEEN T. GALLAGHER, J., CONCUR