[Cite as State v. Gorospe, 2011-Ohio-3291.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

STATE OF OHIO 

 Appellee 

 v. 

JOSEPH DAMIAN GOROSPE 

 Appellant 

C.A. Nos. 25551 & 25552 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CR 06 11 3978 

DECISION AND JOURNAL ENTRY

Dated: June 30, 2011 

 

WHITMORE, Judge. 

{¶1} Defendant-Appellant, Joseph Gorospe, appeals from the judgment of the Summit 

County Court of Common Pleas. This Court affirms. 

I 

{¶2} In April 2007, Gorospe pleaded guilty to murdering his wife as well as several 

other related offenses. Gorospe did not appeal from his convictions, but filed a post-conviction 

relief petition in November 2007, based on the alleged ineffectiveness of his trial counsel. The 

trial court denied his petition on February 6, 2008, and this Court affirmed the denial of the 

petition on appeal. State v. Gorospe, 9th Dist. No. 24111, 2008-Ohio-6435. 

{¶3} On May 19, 2010, Gorospe filed a motion to withdraw his plea because he 

claimed he was not properly advised of post-release control or his Crim.R. 11 rights at the time 

he entered his plea. The trial court denied Gorospe’s motion on July 30, 2010. Subsequently, 

the court resentenced Gorospe to post-release control by virtue of R.C. 2929.191 and issued its 
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nunc pro tunc sentencing entry on August 16, 2010. Gorospe appealed from both judgment 

entries on the same day. See State v. Gorospe, 9th Dist. No. 25551 (challenging the judgment 

entry, resentencing Gorospe to post-release control); State v. Gorospe, 9th Dist. No. 25552 

(challenging the judgment entry denying Gorospe’s motion to withdraw his plea). This Court 

later consolidated the appeals. See State v. Gorospe (Aug. 25, 2010), 9th Dist. Nos. 25551 & 

25552. 

{¶4} Gorospe raises seven assignments of error for our review. For ease of analysis, 

we consolidate the assignments of error. 

II 

Assignment of Error Number One

“THE TRIAL COURT ERRED DURING THE PLEA HEARING WHEN IT 

DID NOT INFORM GOROSPE OF HIS CONSTITUTIONAL RIGHT TO 

COMPULSORY PROCESS, THEREBY FAILING TO STRICTLY COMPLY 

WITH OHIO R. CRIM. P. 11(C)(2)(c) AND RENDERING HIS PLEA INVALID 

BECAUSE IT WAS NOT KNOWINGLY, INTELLIGENTLY AND 

INTELLIGENTLY (sic) MADE, IN VIOLATION OF HIS RIGHTS UNDER 

THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. 

CONSTITUTION.” 

Assignment of Error Number Two

“THE TRIAL COURT ABUSED IT (sic) DISCRETION WHEN IT DENIED 

GOROSPE’S MOTION TO WITHDRAW GUILTY PLEA WHEN HIS PLEA 

WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY 

ENTERED BECAUSE THE TRIAL COURT FAILED TO INFORM HIM OF 

HIS CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS DURING 

THE PLEA HEARING, IN VIOLATION OF HIS RIGHTS TO SUBSTANTIVE 

AND PROCEDURAL DUE PROCESS UNDER THE FIFTH AND 

FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, AND HIS 

RIGHT TO COMPULSORY PROCESS UNDER THE SIXTH AND 

FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.” 

Assignment of Error Number Three

“THE TRIAL COURT ERRED WHEN IT APPLIED RES JUDICATA TO BAR 

GOROSPE’S CLAIM THAT HIS PLEA WAS NOT KNOWINGLY, 
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VOLUNTARILY AND INTELLIGENTLY ENTERED BECAUSE THE TRIAL 

COURT FAILED TO INFORM HIM OF HIS CONSTITUTIONAL RIGHT TO 

COMPULSORY PROCESS DURING THE PLEA HEARING, IN VIOLATION 

OF HIS RIGHTS TO EQUAL PROTECTION, AND SUBSTANTIVE AND 

PROCEDURAL DUE PROCESS UNDER THE FIFTH AND FOURTEENTH 

AMENDMENTS TO THE U.S. CONSTITUTION.” 

Assignment of Error Number Four

“THE TRIAL COURT ERRED WHEN IT CONSIDERED GOROSPE’S 

MOTION TO WITHDRAW GUILTY PLEA A POST-SENTENCE MOTION, 

INSTEAD OF A PRE-SENTENCE MOTION, IN VIOLATION OF HIS 

RIGHTS TO EQUAL PROTECTION, AND SUBSTANTIVE AND 

PROCEDURAL DUE PROCESS UNDER THE FIFTH AND FOURTEENTH 

AMENDMENTS TO THE U.S. CONSTITUTION.” 

Assignment of Error Number Five

“THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED 

GOROSPE’S MOTION TO WITHDRAW GUILTY PLEA WHEN HIS PLEA 

WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY 

ENTERED BECAUSE THE TRIAL COURT COMPLETELY FAILED TO 

INFORM HIM, PRIOR TO ACCEPTING HIS GUILTY PLEA, OF POST 

RELEASE CONTROL, THEREBY FAILING TO COMPLY WITH OHIO R. 

CRIM. P 11(C)(2)(a), IN VIOLATION OF HIS RIGHTS UNDER THE FIFTH 

AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.” 

Assignment of Error Number Six

“THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED 

GOROSPE’S MOTION TO WITHDRAW GUILTY PLEA WHEN HIS PLEA 

WAS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY 

ENTERED BECAUSE HE DID NOT UNDERSTAND THE NATURE OF THE 

CHARGES AGAINST HIM AND THE POSSIBLE DEFENSES THAT HE 

HAD TO THOSE CHARGES, THEREBY FAILING TO COMPLY WITH 

OHIO R. CRIM. P. 11(C)(2)(a), IN VIOLATION OF HIS RIGHTS UNDER 

THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. 

CONSTITUTION.” 

Assignment of Error Number Seven

“THE TRIAL COURT ERRED IN APPLYING RES JUDICATA TO BAR 

GOROSPE’S CLAIM THAT HE DID NOT KNOWINGLY, INTELLIGENTLY 

AND VOLUNTARILY ENTER HE (sic) GUILTY PLEA BECAUSE HE DID 

NOT UNDERSTAND THE NATURE OF THE CHARGES AGAINST HIM 

AND HIS POSSIBLE DEFENSES TO THOSE CHARGES, IN VIOLATION OF 

HIS RIGHT TO SUBSTANTIVE AND PROCEDURAL DUE PROCESS 
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UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. 

CONSTITUTION.” 

{¶5} All of Gorospe’s assignments of error stem from the presumption that his initial 

plea and sentence were void due to an error in post-release control. Because Gorospe presumes 

that he never received a final judgment of conviction until August 2010, he argues that: (1) his 

motion to withdraw was a pre-sentence motion; (2) the doctrine of res judicata does not bar any 

of his arguments; and (3) his plea was not knowingly, intelligently, and voluntarily entered. We 

address the arguments together as they all stem from a faulty presumption. 

{¶6} The trial court originally sentenced Gorospe in April 2007. Sentences imposed on 

or after July 11, 2006 are not void for post-release control errors, but are correctable pursuant to 

the procedure set forth in R.C. 2929.191. State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio6434, paragraph two of the syllabus. Moreover, the fact that a defendant’s conviction arose as a 

result of a plea does not change that result. The Ohio Supreme Court has now clearly indicated 

that, even if an offender pleaded pursuant to a defective post-release control notification, only the 

defective notification portion of the sentence is void. State v. Fischer, 128 Ohio St.3d 92, 2010-

Ohio-6238, paragraphs two and three of the syllabus, modifying State v. Bezak, 114 Ohio St.3d 

94, 2007-Ohio-3250. Specifically, “res judicata still applies to other aspects of the merits of a 

conviction, including the determination of guilt and the lawful elements of the ensuing 

sentence.” Fischer at paragraph three of the syllabus. Because Gorospe received his final 

judgment of conviction in April 2007, the trial court correctly concluded that his initial plea and 

sentence were not void and properly refused to treat his motion to withdraw his plea as a presentence motion. See State v. Brown, 9th Dist. Nos. 25353 & 25355, 2011-Ohio-1043, at ¶6. 

{¶7} Gorospe sought to withdraw his plea on the basis that he did not knowingly, 

intelligently, and voluntarily enter it. He argues that his plea was defective because he was not 
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informed of post-release control, he was not informed of his right to the compulsory process 

under Crim.R. 11, and he did not understand the nature of the charges against him. 

“Pursuant to Crim.R. 32.1, a motion to withdraw a plea of guilty or no contest 

may be made only before sentence is imposed; but to correct manifest injustice 

the court after sentence may set aside the judgment of conviction and permit the 

defendant to withdraw his or her plea. In a post-sentence motion, the burden of 

establishing the existence of a manifest injustice is upon the individual seeking to 

withdraw the plea. A manifest injustice has been defined as a clear or openly 

unjust act. Under the manifest injustice standard, a post-sentence withdrawal 

motion is allowable only in extraordinary cases.” (Internal citations and 

quotations omitted.) State v. Brown, 9th Dist. No. 24831, 2010-Ohio-2328, at ¶9. 

Undue delay in a defendant’s Crim.R. 32.1 motion to withdraw is a factor “militating against the 

granting of the motion.” State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993, at ¶14, quoting 

State v. Smith (1977), 49 Ohio St.2d 261, paragraph three of the syllabus. 

{¶8} “When [a] trial judge does not substantially comply with Crim.R. 11 in regard to a 

nonconstitutional right, reviewing courts must determine whether the trial court partially 

complied or failed to comply with the rule. If the trial judge partially complied, *** the plea 

may be vacated only if the defendant demonstrates a prejudicial effect.” (Emphasis omitted.) 

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, at ¶32. Conversely, “[a] complete failure 

to comply with the rule does not implicate an analysis of prejudice.” Id., quoting State v. 

Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, at ¶22. At the time a defendant enters his plea, he 

must be advised of post-release control because it is a part of his actual sentence. State v. 

Holcomb, 9th Dist. No. 25165, 2010-Ohio-4656, at ¶10, citing Crim.R. 11(C). 

“Under the doctrine of res judicata, a final judgment of conviction bars a 

convicted defendant who was represented by counsel from raising and litigating 

in any proceeding except an appeal from that judgment, any *** claimed lack of 

due process that *** could have been raised *** on an appeal from that 

judgment.” State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the 

syllabus. 
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In certain instances, this Court has applied the doctrine of res judicata in appeals stemming from 

the denial of a defendant’s Crim.R. 32.1 motion to withdraw. See State v. Rhoten, 9th Dist. No. 

24487, 2009-Ohio-3362, at ¶5-7 (applying res judicata where defendant could have raised 

arguments on direct appeal, despite never having had one, and raised similar issues in a postconviction relief petition); State v. Rexroad, 9th Dist. No. 22214, 2004-Ohio-6271, at ¶8-11 

(applying res judicata where defendant could have argued in his direct appeal that the trial court 

failed to comply with Crim.R. 11 when accepting his plea). 

{¶9} All of the alleged errors upon which Gorospe relied in his motion to withdraw 

were apparent on the face of the record at the time he first appealed. Gorospe’s plea colloquy 

took place on the record and any Crim.R. 11 defect therein could have been raised on direct 

appeal. Rexroad at ¶8-11. Accord Rhoten at ¶5-7. Additionally, Gorospe previously pursued a 

petition for post-conviction relief and an appeal from its denial, see Gorospe, supra, so he also 

had a prior opportunity to challenge his plea based on any evidence that might have existed 

outside the trial court record. 

{¶10} The trial court applied res judicata to Gorospe’s arguments that he was not 

adequately informed of his right to the compulsory process under Crim.R. 11 and did not fully 

understand the charges against him when he pleaded because Gorospe could have raised those 

issues either on direct appeal or in his petition for post-conviction relief. Gorospe’s sole 

explanation as to why res judicata does not apply here is that the doctrine does not apply to void 

judgments. Gorospe, however, did not have a void judgment and Fischer clearly dictates that, in 

defective post-release control notification cases, “[r]es judicata still applies to other aspects of 

the merits of a conviction[.]” Fischer at paragraph three of the syllabus. Thus, his argument that 

the trial court erred by applying res judicata to the foregoing argument lacks merit. 
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{¶11} Assuming that res judicata does not also bar Gorospe’s argument that his plea was 

invalid because he was not notified of post-release control, see State v. Hubbard, 9th Dist. No. 

25141, 2011-Ohio-2770, at ¶2-14 (applying res judicata to certain portions of motion to 

withdraw, but not the portion regarding post-release control), we similarly must conclude that the 

trial court did not err by refusing to allow Gorospe to withdraw his plea. The trial court 

determined that the judge who accepted Gorospe’s plea partially complied with Crim.R. 11 when 

advising Gorospe of post-release control. The transcript of the plea colloquy reflects that the 

judge who accepted the plea erroneously referred to post-release control as “parole” and did not 

indicate that the term was mandatory, but did state that there was a “possibility” Gorospe could 

receive another five years of “parole” on his most serious charge and another three years of 

“parole” on his third-degree felony. Gorospe argues that the trial court “completely failed to 

inform [him] of post[-]release control,” but does not cite any case law for that proposition or 

explain why the trial court’s statements did not amount to partial compliance. See App.R. 

16(A)(7). Absent any argument from Gorospe, we cannot conclude that the trial court erred by 

finding there was partial compliance with Crim.R. 11, regarding Gorospe’s post-release control 

notification. 

{¶12} Because the trial judge who accepted Gorospe’s guilty plea partially complied 

with Crim.R. 11, Gorospe had to demonstrate that he would not have pleaded guilty, had he 

known he would be subject to post-release control. See Clark at ¶32 (holding that partial 

compliance with Crim.R. 11 implicates a prejudice analysis). The trial court found that Gorospe 

failed to prove that he would not have pleaded guilty if he was properly informed of post-release 

control because his charges were extremely serious and carried a mandatory sentence of fifteen 

years to life. As a result of the negotiated plea, he was sentenced to twenty-three years to life in 
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prison. The record also reflects that Gorospe did not express any concern when he was informed 

of post-release control at his sentencing hearing and that he waited three years before he sought 

to withdraw his plea. See Bush at ¶14 (noting that delay in filing a Crim.R. 32.1 motion is a 

factor weighing against its granting). The only evidence upon which Gorospe relies to argue that 

he proved prejudice is his own conclusory statement in his affidavit, indicating that he would not 

have pleaded if he had known about post-release control. Based on the record before us, we 

cannot say that the trial court abused its discretion by determining that Gorospe failed to 

demonstrate the existence of manifest injustice. Accordingly, the trial court did not err by 

denying his motion to withdraw. Based on the foregoing analysis, all of Gorospe’s assignments 

of error are overruled. 

III 

{¶13} Gorospe’s assignments of error are overruled. The judgment of the Summit 

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is 
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instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 BETH WHITMORE 

 FOR THE COURT 

MOORE, J. 

CONCURS

CARR, P. J. 

CONCURS IN JUDGMENT ONLY, SAYING:

{¶14} I would affirm solely on the basis of res judicata. As Gorospe’s sentence was 

never void, he could have raised on direct appeal the issue of the voluntariness of his plea based 

on the failure of the trial court to notify him of post-release control at the plea hearing. Having 

failed to do so, he is now barred from raising that issue under the doctrine of res judicata 

pursuant to State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. 

APPEARANCES:

JAMES D. OWEN, and TODD A. LONG, Attorneys at Law, for Appellant. 

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

Prosecuting Attorney, for Appellee.