Opinion
No. 109770
03-19-2021
STATE OF OHIO, Plaintiff-Appellee, v. LUIS CRUZ, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Patrick J. Lavelle, Assistant Prosecuting Attorney, for appellee. Slater & Zurz and Sean C. Buchanan, for appellant.
JOURNAL ENTRY AND OPINION JUDGMENT: DISMISSED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-16-604108-A
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Patrick J. Lavelle, Assistant Prosecuting Attorney, for appellee. Slater & Zurz and Sean C. Buchanan, for appellant. LARRY A. JONES, SR., J.:
{¶ 1} Defendant-appellant, Luis Cruz ("Cruz"), appeals from the trial court's judgment denying his motion for judicial release. Plaintiff-appellee, the state of Ohio ("the state"), has filed a motion to dismiss the appeal. For the reasons set forth below, we grant the state's motion and dismiss the appeal.
{¶ 2} In 2017, Cruz pleaded guilty to a first-degree felony count of trafficking in drugs with a juvenile specification and one-year firearm specification. Cruz and the state recommended an agreed eight-year mandatory prison sentence to the trial court, and the court followed the parties' recommendation and imposed an eight-year prison term.
{¶ 3} Cruz filed a direct appeal. State v. Cruz, 8th Dist. Cuyahoga No. 106098, 2018-Ohio-2052. In one of his assignments of error, he contended that his plea was not intelligently, knowingly, and voluntarily made because he was given inaccurate information about his eligibility for judicial release. This court found his contention to be without merit, noting that "regardless of his hope for judicial release, Cruz was notified and understood the potential penalties associated with his plea." Id. at ¶ 15. This court further noted that "neither Cruz's trial counsel, the state, nor the court promised Cruz that he would be released on shock probation. His counsel advised him that even if he were to file a motion for judicial release, the court would determine whether judicial release was appropriate or not. There was no guarantee." Id. at ¶ 16.
{¶ 4} Consequently, the panel found that "even though Cruz's trial counsel offered wrong advice regarding the potential for judicial release, Cruz understood that he was going to prison and that his maximum prison term could be 12 years (11 years for drug trafficking plus one year on the firearm specification)." Id.
{¶ 5} In April 2020, Cruz filed a motion for judicial release. The trial court denied the motion and this appeal followed, with Cruz setting forth the following sole assignment of error: "The court erred by not holding a hearing to evaluate the merits of the judicial release motion as required by the plea agreement in this matter." The state seeks to dismiss the appeal for lack of a final, appealable order.
{¶ 6} This court and other Ohio appellate courts have held that the denial of a motion for judicial release is not a final, appealable order. See State v. Hite, 9th Dist. Summit No. 29048, 2019-Ohio-2201, ¶ 10-11 and 16; State v. Zakrajsek, 11th Dist. Ashtabula No. 2018-A-0032, 2018-Ohio-1888, ¶ 3; State v. Williams, 8th Dist. Cuyahoga No. 95359, 2011-Ohio-120, ¶ 11; State v. Ingram, 10th Dist. Franklin No. 03AP-149, 2003-Ohio-5380, ¶ 6; State v. Greene, 2d Dist. Greene No. 02-CA-17, 2002-Ohio-2595, ¶ 3; and State v. Perry, 1st Dist. Hamilton No. C-000121, 2000 Ohio App. LEXIS 3965, 9 (Sept. 1, 2000).
{¶ 7} Although the Ohio Supreme Court has not addressed in depth the finality of a denial of a motion for judicial release, it did hold that a trial court's denial of a motion for shock probation could never be a final, appealable order. State v. Coffman, 91 Ohio St.3d 125, 129, 742 N.E.2d 644 (2001). The court reasoned that the denial of a motion for shock probation did not affect a "substantial right" because the statutory provision providing for shock probation conferred substantial discretion to the trial court, while simultaneously making no provision for appellate review. Id. at 128.
{¶ 8} Although judicial release replaced shock probation effective July 1, 1996, the reasoning of Coffman remains solid. Like the statute providing for shock probation, the statute authorizing judicial release, R.C. 2929.20, confers substantial discretion to the trial court, and makes no provision for appellate review.
{¶ 9} Cruz contends that the Ohio Supreme Court created an exception to the above-cited law in State ex rel. Rowe v. McCown, 108 Ohio St.3d 183, 2006-Ohio-548, 842 N.E.2d 51. In Rowe, the defendant petitioned for a writ of mandamus, arguing that the state had breached its plea agreement. The Supreme Court affirmed the court of appeals' dismissal of the petition, in part, because it concluded that the defendant had an adequate legal remedy. The court noted that the defendant could have moved to withdraw his plea or to enforce the agreement, or could have appealed the trial court's denial of his motion for judicial release. The court did not elaborate on the last option.
{¶ 10} Thus, at least two appellate districts have held that the Ohio Supreme Court has implied that there is an exception if the defendant's argument is that the state breached a plea agreement. See State v. Francis, 4th Dist. Meigs No. 10CA2, 2011-Ohio-4497, ¶ 14; State v. Jimenez, 9th Dist. Summit No. 24609, 2009-Ohio-4337, ¶ 6. At least one district, however, has held that a defendant "may not avoid this jurisdictional barrier by arguing that the trial court 'broke its agreement' to grant a motion for judicial release * * *." State v. Williams, 1oth Dist. Franklin No. 07AP-1035, 2008-Ohio-1906, ¶ 10.
{¶ 11} We agree with the Tenth Appellate District. Further, as already held by this court in Cruz's direct appeal, there was "no guarantee" made to Cruz that he would get judicial release. Cruz, 8th Dist. Cuyahoga No. 106098, 2018-Ohio-2052, at ¶ 15. This court noted that "regardless of his hope for judicial release, Cruz was notified and understood the potential penalties associated with his plea[,]" and found that "neither Cruz's trial counsel, the state, nor the court promised Cruz that he would be released on shock probation." Id. at ¶ 16.
{¶ 12} Finally, although we are not considering the merits of the denial of the motion for judicial release, we do note that R.C. 2929.20, the judicial release statute, allows a trial court to deny a motion for judicial release without holding a hearing, and a trial court is not required to make any specific findings when overruling a motion for judicial release.
{¶ 13} In light of the above, the state's motion to dismiss is well taken and hereby granted.
{¶ 14} Appeal dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
LARRY A. JONES, SR., JUDGE FRANK D. CELEBREZZE, JR., P.J., and
LISA B. FORBES, J., CONCUR