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State v. Morales

Court of Appeals of Ohio, Ninth District, Summit

June 14, 2017

STATE OF OHIO Appellee
v.
MARCEL A. MORALES Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 04 09 3018

          MARCEL A. MORALES, pro se, Appellant.

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

          DECISION AND JOURNAL ENTRY

          SCHAFER, JUDGE.

         {¶1} Defendant-Appellant, Marcel A. Morales, appeals the judgment of the Summit County Court of Common Pleas denying his motion to correct post-release control. We affirm.

         I.

         {¶2} This is the third appeal Morales has taken involving his criminal convictions and sentence. In a prior appeal, State v. Morales, 9th Dist. Summit No. 27765, 2016-Ohio-3313 ("Morales I "), this Court set forth the basic underlying factual and procedural history as follows:

In 2004, Morales was indicted on nineteen counts, ranging from breaking and entering to aggravated robbery and attempted murder. Nine of the counts included firearm specifications. He pled guilty to thirteen of the counts, and the State dismissed the balance of the charges including the attempted murder charges.
Morales' written plea of guilty indicates that he and the prosecutor agreed to recommend nine-year sentences for two aggravated robberies and three-year sentences for firearm specifications attached to those counts. His written plea further indicates that the parties agreed those sentences should be run consecutively for a total of twenty-four years with the sentences for the other counts to run concurrently. The trial court sentenced Morales to nine years in prison for each of the aggravated robberies and three years for each of the associated firearm specifications. The court further ordered that this time be served consecutively for a total of twenty-four years. The court ordered the sentences for the remaining counts be served concurrently.

Id. at ¶ 2-3. Morales did not file a direct appeal.

         {¶3} On January 3, 2011, Morales filed a motion for a new sentencing hearing on the basis that the trial court failed to properly impose post-release control in its sentencing entry. The trial court subsequently resentenced Morales to the same term of imprisonment as contained in its previous sentencing entry, but added a mandatory five-year period of post-release control. The trial court's sentence was journalized via entry on February 22, 2011.

         {¶4} On January 9, 2013, Morales filed a notice of appeal from the trial court's February 22, 2011 sentencing entry. This Court subsequently dismissed Morales' attempted appeal for lack of jurisdiction. See State v. Morales, 9th Dist. Summit No. 26750 (Jan. 30, 2013). Morales thereafter filed a "motion to notice plain error and correct manifest miscarriage of justice" pursuant to Crim.R. 52(B), arguing that the trial court committed plain error by imposing consecutive sentences without making the requisite statutory findings under former R.C. 2929.14(E)(4), which has since been renumbered to R.C. 2929.14(C)(4). The trial court ultimately denied Morales' motion. Morales appealed from the trial court's denial of his "motion to notice plain error" and this Court affirmed the trial court's denial on the basis that the motion was, in fact, an untimely petition for postconviction relief. See Morales I ¶ at 8-10.

         {¶5} On December 5, 2016, Morales filed a "motion to correct postrelease control" wherein he argued that the trial court did not properly sentence him to post-release control at his resentencing hearing in 2011. The State filed a memorandum in opposition and the trial court summarily denied Morales' motion.

         {¶6} Morales filed this timely appeal and presents two ...


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