Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Mark A. Stanton Cuyahoga County
Public Defender By: John T. Martin Assistant County Public
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Amy Venesile Assistant County
BEFORE: Blackmon, J., McCormack, P.J., and Stewart, J.
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, J.
Julio Colon ("Colon") appeals from the order of the
trial court denying his motion to vacate his guilty plea to
three counts of sexual battery. He assigns the following error
for our review:
The trial court erred by denying [Colon's] motion to
withdraw his plea without conducting a hearing.
Having reviewed the record and pertinent law, we affirm the
decision of the trial court.
In February 2015, Colon was indicted on seven counts of rape
and two counts of kidnapping, all with sexually violent
predator specifications, in connection with allegations that
he and codefendant Philip Gordon molested two mentally
disabled brothers. In April 2015, the trial court granted the
defendant's motion for an independent psychiatric
assessment of the brothers. The record indicates that the
findings "were not favorable to the defense." Colon
subsequently pled guilty to three counts of sexual battery in
violation of R.C. 2907.03(A)(2), i.e., felonies of the third
degree, and the remaining counts were dismissed. The trial
court subsequently determined that Colon had committed
"the worst form of the offense, " and sentenced him
to three consecutive five-year terms of incarceration on each
count, and also designated that he is a Tier III sex
On direct appeal, Colon challenged the imposition of
consecutive sentences and court costs, and also argued that
R.C. 2907.03(A)(2) is unconstitutional. This court affirmed
the conviction and sentence, reversed the and remanded for
resentencing on court costs only, and declined to address the
constitutionality of R.C. 2907.03(A)(2) because this
challenge was not first raised in the trial court. See
State v. Colon, 8th Dist. Cuyahoga No. 103504,
2016-Ohio-3462 ("Colon I ").
On February 12, 2016, during the pendency of his appeal,
Colon filed a motion to withdraw his guilty pleas. He
maintained that his trial counsel did not warn him of the
constitutional defects of R.C. 2907.03(A)(2), and that it
impermissibly prohibits some individuals "from
consenting to sexual conduct even though they were willing to
participate in such conduct" and prevents impaired
persons such as the victims from "reproducing unless
married." He also complained that there is a
"substantial question as to whether either of the
victims in this case are impaired" under R.C.
2907.03(A)(2). The trial court denied Colon's motion
without a hearing. Colon filed a motion for reconsideration
that was also denied, and Colon now appeals.
On appeal, Colon complains that the trial court erred in
denying his motion to vacate his guilty plea without holding
a hearing because he was deprived of the effective assistance
of counsel in entering the plea.
Under 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. A manifest
injustice is a fundamental flaw in the proceedings that
results in a miscarriage of justice or is inconsistent with
the requirements of due process. State v. Sneed, 8th
Dist. Cuyahoga No. 80902, 2002-Ohio-6502, ¶ 13. This
heightened standard is in place because "a defendant
should not be encouraged to plead to test the potential
punishment and withdraw the ...