Criminal appeal from Common Pleas Court T.C. NO. 07CR290
ELIABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecutor, Attorney for Plaintiff-Appellee
OCTAVIO E. ACEDO-GONZALEZ, #565322, Chillicothe Correctional Institute, Defendant-Appellant
(¶ 1} This matter is before the Court on the Notice of Appeal of Octavio Enrique Acedo-Gonzalez, filed March 7, 2013. Acedo-Gonzalez appeals from the decision of the trial court which overruled his pro se "Motion to Correct Void/Voidable Judgment." We hereby affirm the judgment of the trial court.
(¶ 2} Acedo-Gonzalez pled guilty, pursuant to a plea agreement, to one count of trafficking in heroin, in violation of R.C. 2925.03(A)(2), a felony of the first degree, along with three forfeiture specifications, and the State dismissed multiple counts and a mandatory drug offender specification in exchange for his plea. The State further agreed to a sentencing range of the minimum term of five years up to the maximum term of ten years. The trial court sentenced Acedo-Gonzalez to a term of ten years, as well as a minimum term of five years of mandatory post release control. Acedo-Gonzalez appealed, asserting that the trial court abused its discretion in imposing the maximum sentence. In State v. Acedo-Gonzalez, 2d Dist. Greene No. 2007 CA 96, 2008-Ohio-5776, this Court affirmed Acedo-Gonzalez's sentence, concluding that his sentence is not contrary to law and that an abuse of discretion is not demonstrated. Acedo-Gonzalez's appeal of this Court's decision to the Supreme Court of Ohio was not accepted for review. State v. Acedo-Gonzalez, 121 Ohio St.3d 1440, 2009-Ohio-1638, 903 N.E.2d 1223. Acedo-Gonzalez filed a motion to reopen his appeal, which this court denied. State v. Acedo-Gonzalez, Greene App. No. 2007 CA 96 (May 15, 2009).
(¶ 3} On March 27, 2012, the State filed a Motion to Correct Post-Release Control. On June 1, 2012, the trial court issued an Entry which provides that Acedo-Gonzalez appeared by video in open court, that "the original sentencing and sentencing entry is void as to Post Release Control and the remainder of the sentencing entry is not void and remains in full effect." The court then properly notified Acedo-Gonzalez regarding post release control. Acedo-Gonzalez did not appeal from this Entry.
(¶ 4} On August 28, 2012, Acedo-Gonzalez filed his "Motion to Correct Void/ Voidable Judgment, " in which he asserted that the trial court erred in imposing the maximum sentence of ten years, given his remorse, and in the absence of any prior criminal history. He further asserted that defense counsel was ineffective, "especially when it was not explained to Defendant that he would be automatically deported upon completion of [his sentence]. Such conditions further makes recidivism a non factor to be considered during the sentencing phase." Finally, Acedo-Gonzalez asserted that his counsel "provided him false assurance that his conviction would not result in his removal from this country." The State responded that Acedo-Gonzalez's arguments were barred by the doctrine of res judicata, and that if the court construed his motion as one for post-conviction relief, it was untimely. In reply to the State's memorandum in opposition, Acedo-Gonzalez asserted in part that he "would also like to clarify for the State that his motion is not a Petition for Post Conviction Relief, but is indeed what it says it is on its face."
(¶ 5} In its Entry overruling Acedo-Gonzalez's motion, the court determined in part as follows:
The Defendant claims this Court has jurisdiction to correct a void sentence. The problem presented however is not void.
The Defendant was sentenced to 10 years on a first degree felony. This sentence is within the range set by law, and therefore not void. The Court complied with the sentencing requirements to impose the sentence given.
Further, the Defendant could have raised this issue on direct appeal. Since it was not, the motion is precluded by res judicata. State v. Goldwire (2d District) 2005-Ohio-5784.
(¶ 6} Acedo-Gonzalez asserts three assignments of error herein, which we will consider together. They are as follows:
(¶ 7} "THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT[']S MOTION TO CORRECT VOID SENTENCE ON THE GROUNDS THAT THE SENTENCE IS NOT VOID AND IT COMPLIED WITH THE ...