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State v. Viccaro

Court of Appeals of Ohio, Eighth District

August 8, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MICHAEL VICCARO DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-541019

FOR APPELLANT Michael Viccaro, pro se Inmate No. 593-977 2500.

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor, By: Daniel T. Van Assistant County Prosecutor.

BEFORE: E.A. Gallagher, P.J., McCormack, J., and E.T. Gallagher, J.

JOURNAL ENTRY AND OPINION

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 control[1] 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 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 ...


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