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State v. Arios

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 23, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JOSE ARIOS DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-07-500492-B

          FOR APPELLANT Jose Arios, pro se

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor, Frank Romeo Zeleznikar Assistant County Prosecutor

          BEFORE: Boyle, J., Kilbane, P.J., and McCormack, J.

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, JUDGE

         {¶1} Defendant-appellant, Jose Arios, appeals from a judgment denying his motion to be sentenced. He raises one assignment of error for our review:

Whether the trial court's failure to properly impose terms of postrelease control; its failure to articulate [the sentence] with which the consecutive sentences were/are to be served, and its failure to render an ["adjudication of guilt"] upon acceptance of appellant's guilty plea implicates a valid final appealable order rendering the plea far less than the required knowingly, intelligently and voluntarily made and the attempted sentences void ab initio as a matter of law and fact.

         {¶2} Finding no merit to his appeal, we affirm.

         I. Procedural History and Factual Background

         {¶3} In May 2008, Arios was convicted by a jury of various drug-related charges, including seven counts of drug trafficking, three counts of drug possession, and one count of possessing criminal tools, and was sentenced to 47 years in prison. In his direct appeal, he raised four arguments: (1) that the trial court violated his rights to due process when it sentenced him to maximum, consecutive sentences, and failed to conduct a proportionality review, (2) that his convictions were against the weight of the evidence, (3) that the trial court erred when it quashed his subpoenas and when it failed to suppress evidence against him, and (4) that the trial court erred when it did not merge several of the offenses. See State v. Arios, 8th Dist. Cuyahoga No. 91506, 2009-Ohio-5814.

         {¶4} In reviewing Arios's arguments on direct appeal, we found merit to his fourth assignment of error. We held that three of the trafficking counts and the three possession counts were allied offenses of similar import. Id. at ¶ 56. We ordered that the allied offenses be merged; reversed the convictions on all six counts held to be allied offenses; remanded the case for an allied offense merger under R.C. 2941.25; vacated the sentence for all six counts held to be allied offenses; and otherwise affirmed. Id.

         {¶5} Arios appealed our decision to the Ohio Supreme Court, but it denied leave to appeal because it found there were no substantial constitutional questions involved. See State v. Arios, 124 Ohio St.3d 1478, 2010-Ohio-354, 921 N.E.2d 248. Arios also filed an application to reopen his appeal, which this court denied. See State v. Arios, 8th Dist. Cuyahoga No. 91506, 2010-Ohio-1195.

         {¶6} In June 2012, Arios moved for a new trial, which the trial court granted. In October of that same year, Arios pleaded guilty to six counts of drug trafficking, four counts of drug possession, and possessing criminal tools. The trial court sentenced him the same day, imposing a sentence of 14 years in prison after merging the four possession counts with four of the trafficking counts. The trial court also imposed five years of mandatory postrelease control and notified Arios of the consequences of violating the terms of his postrelease control.

         {¶7} Arios did not timely appeal the trial court's judgment sentencing him. But in January 2014, Arios moved to vacate his sentence. The trial court denied this motion on February 10, 2014. Arios filed a notice of appeal of the trial court's February 10, 2014 judgment on July 23, 2014. This court dismissed the appeal as untimely on July 31, 2014. Arios refiled his notice of appeal of the February 10, 2014 judgment ...


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