State v. Castro ( 2012 )

[Cite as State v. Castro, 2012-Ohio-2206.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97451
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOSE CASTRO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-413227
BEFORE: Cooney, J., Jones, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: May 17, 2012
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Chief Public Defender
John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶1} Defendant-appellant, Jose Castro (“Castro”), appeals the trial court’s denial
of his motion to correct an illegal sentence. Finding no merit to the appeal, we affirm.
{¶2} In October 2002, Castro was convicted of aggravated burglary, aggravated
robbery, kidnapping, felonious assault, and gross sexual imposition. He was sentenced
to 40½ years in prison. His convictions and sentence were affirmed by this court on
appeal. State v. Castro, 8th Dist. No. 81122, 2002-Ohio-5568.1
{¶3} Castro was not properly sentenced to postrelease control so he filed a pro se
motion to correct his sentence. His counsel also filed a motion to “correct the illegal
sentence.” At the hearing, Castro argued that his convictions should be merged as allied
offenses of similar import. The court denied Castro’s motions seeking a full
resentencing, and Castro was properly advised of postrelease control by way of a nunc
pro tunc entry.
{¶4} Castro now appeals, arguing in his sole assignment of error that the court
erred in failing to address whether his convictions should have been merged as allied
offenses of similar import.
{¶5} It is well recognized that the doctrine of res judicata bars
claims that were raised or could have been raised on direct
appeal. State v. Davis, 119 Ohio St.3d 422,
2008-Ohio-4608, 894 N.E.2d 1221. Consistent therewith, this
Castro attacked his sentence on direct appeal on the issues of maximum and consecutive
1
sentences.
court has consistently recognized that the doctrine of res
judicata bars all claims raised in a Crim.R. 32.1 motion that
were raised or could have been raised in a prior proceeding,
including a direct appeal. State v. McGee, Cuyahoga App.
No. 91638, 2009-Ohio-3374; State v. Pickens, Cuyahoga App.
No. 91924, 2009-Ohio-1791; State v. Gaston, Cuyahoga App.
No. 82628, 2003-Ohio-5825; see also State v. Coats, Mercer
App. Nos. 10-09-04 and 10-09-05, 2009-Ohio-3534.
State v. Fountain, 8th Dist. Nos. 92772 and 92874, 2010-Ohio-1202.
{¶6} Castro failed to raise the issue of allied offenses in his direct appeal.
{¶7} Moreover, it is well settled that the issue of allied offenses is not properly
raised during resentencing but rather on direct appeal. See State v. Marshall, 8th Dist.
No. 89409, 2007-Ohio-683 (finding that defendant’s allied offense argument was barred
by res judicata because it had already been raised on direct appeal); State v. Martin, 2d
Dist. No. 21697, 2007-Ohio-3585 (issue of merger not within the scope of the trial court’s
limited review of sentencing issues on remand); State v. McCauley, 8th Dist. No. 86671,
2006-Ohio-2875 (finding that the defendant’s allied offenses argument was barred by res
judicata because it was not raised on direct appeal); State v. Poole, 8th Dist. No. 94759,
2011-Ohio-716 (finding that allied offense issue was barred by res judicata when
improperly raised during resentencing hearing).
{¶8} The Ohio Supreme Court held in State v. Fischer, 128 Ohio St.3d 92,
2010-Ohio-6238, 942 N.E.2d 332, at ¶ 27, that when a trial court fails to properly impose
postrelease control, “that part of the sentence * * * is void and must be set aside.” The
defendant is not entitled to be resentenced on the entire sentence, “only the portion that is
void may be vacated and otherwise amended.” Id. at ¶ 28; State v. Gonzalez, 195 Ohio
App.3d 262, 2011-Ohio-4219, 959 N.E.2d 596, ¶ 5 (1st Dist.). The Fischer court
concluded that “[t]he scope of an appeal from a resentencing hearing in which a
mandatory term of postrelease control is imposed is limited to issues arising at the
resentencing hearing.” Id. at ¶ 40.
{¶9} In addressing this exact issue in Poole, this court held that:
when a court affirms the convictions in an appellant’s first appeal, the
propriety of those convictions becomes the law of the case, and subsequent
arguments seeking to overturn them are barred. State v. Harrison,
Cuyahoga App. No. 88957, 2008-Ohio-921, at ¶ 9. Therefore, in a
subsequent appeal, only arguments relating to the resentencing are proper.
State v. Riggenbach, Richland App. No. 09CA121, 2010-Ohio-3392,
affirmed by Slip Opinion No. 2010-Ohio-6336.
In further clarification on this issue, we note that the Ohio Supreme Court
recently stated that “under R.C. 2941.25, the court must determine prior to
sentencing whether the offenses were committed by the same conduct.”
State v. Johnson, Slip Opinion No. 2010-Ohio-6314, at the syllabus.
(Emphasis added.)
(Emphasis sic.) Id. at ¶ 11-12.
{¶10} Therefore, in accordance with Fischer and Johnson, we find that the trial
court did not err in refusing to address the issue of allied offenses at Castro’s postrelease
control hearing, as his sentence had been affirmed on direct appeal. The correction of an
improper imposition of postrelease control does not open the door for appellant to attack
his underlying convictions or other unrelated matters. Poole at ¶ 13. Thus, Castro’s
argument is barred by the doctrine of res judicata.
{¶11} Accordingly, the sole assignment of error is overruled.
{¶12} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR