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State v. Colon

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 9, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JULIO E. COLON DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-592449-B.

          ATTORNEYS FOR APPELLANT Mark A. Stanton Cuyahoga County Public Defender By: John T. Martin Assistant County Public Defender.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Amy Venesile Assistant County Prosecutor.

          BEFORE: Blackmon, J., McCormack, P.J., and Stewart, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, J.

         {¶1} 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.[1] 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.

         {¶2} Having reviewed the record and pertinent law, we affirm the decision of the trial court.

         {¶3} 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 offender.

         {¶4} 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 ").

         {¶5} 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.

         Motion to Vacate

         {¶6} 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.

         {¶7} 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, ΒΆ 13. This heightened standard is in place because "a defendant should not be encouraged to plead to test the potential punishment and withdraw the ...


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