State v. Almazan , 2021 Ohio 1718 ( 2021 )

[Cite as State v. Almazan, 2021-Ohio-1718.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 110041 and 110160
v. :
HECTOR ALMAZAN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 20, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-14-589365-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant
Prosecuting Attorney, for appellee.
Hector Almazan, pro se.
KATHLEEN ANN KEOUGH, J.:
This appeal is before the court on the accelerated docket pursuant to
App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated appeal is to allow an
appellate court to render a brief and conclusory decision. State v. Trone, 8th Dist.
Cuyahoga Nos. 108952 and 108966, 2020-Ohio-384, ¶ 1, citing State v. Priest, 8th
Dist. Cuyahoga No. 100614, 2014-Ohio-1735, ¶ 1.
I. Background
After trial in September 2015, the jury found defendant-appellant,
Hector Almazan, guilty of Count 1, aggravated murder; Count 2, aggravated murder;
Count 3, kidnapping; Count 4, murder; Count 5, felonious assault; Count 6,
felonious assault; and Count 7, domestic violence. At the sentencing hearing, the
trial court found that Counts 2, 3, 4, 5, 6, and 7 merged with Count 1 for purposes of
sentencing, and the state elected to proceed to sentencing on Count 1, aggravated
murder. The trial court stated that it was sentencing Almazan to life in prison
without the possibility of parole (Tr. 1490.) Its subsequent journal entry of
sentencing stated in pertinent part:
For the purposes of sentencing, counts 2, 3, 4, 5, 6, and 7 merge with
count 1. State elects to proceed to [sic] on count 1 for the purposes of
sentencing. Defendant is sentenced to life in prison without the
possibility of parole. The court considered all required factors of the
law. The court finds that prison is consistent with the purpose of R.C
2929.11. The court imposes a prison sentence at the Lorain
Correctional Institution of life.
(Emphasis deleted.)
In his direct appeal, Almazan challenged various evidentiary rulings
made by the trial court and the sufficiency and manifest weight of the evidence
supporting his convictions, and argued that he had received ineffective assistance of
counsel. This court found no merit to Almazan’s appeal and affirmed his
convictions. State v. Alamzan, 8th Dist. Cuyahoga No. 103563, 2016-Ohio-5408.
In April 2020, Almazan filed a “motion to correct a facially illegal
sentence that’s contrary to law” in which he argued that the journal entry of
sentencing was inconsistent because it stated both that he was sentenced to life in
prison without the possibility of parole, and that the court imposed a sentence of life
in prison. Almazan argued these were “two different statutory sentences” and that
resentencing was required “to impose the correct sentence.” The trial court denied
the motion, and Almazan appealed the decision in Case No. 110041.
In June 2020, Almazan filed another motion in the trial court, this time
asserting that the kidnapping conviction should not have merged with the felonious
assault convictions, and that the court erred by not imposing sentences on Counts
2, 3, 4, 5, 6, and 7 before merging those counts with Count 1. The court denied the
motion, and Almazan appealed the trial court’s ruling in Case No. 110160.
The cases were consolidated for briefing, hearing, and disposition.
II. Law and Analysis
In his first assignment of error, Almazan contends that the trial court
committed reversible error by pronouncing a sentence at the sentencing hearing
that is different from the sentence imposed in the journal entry of sentencing.
Almazan contends that at the sentencing hearing, the trial court stated that it was
sentencing him to life in prison without the possibility of parole, but that the journal
entry of sentencing states that he was sentenced to life in prison with the possibility
of parole.
This argument was not raised in the trial court, and we therefore need
not consider it. It is well settled that a party cannot raise new arguments and legal
issues for the first time on appeal, and that failure to raise an issue in the trial court
waives that issue for appellate purposes. Miller v. Cardinal Care Mgmt., 8th Dist.
Cuyahoga No. 107730, 2019-Ohio-2826, ¶ 23, citing Cleveland Town Ctr. L.L.C. v.
Fin. Exchange Co. of Ohio, Inc., 2017-Ohio-384, 83 N.E.3d 383 (8th Dist.)
(appellate courts “will not consider a question not considered or decided by the
lower court”).
Nevertheless, we find that Almazan’s argument is without merit. The
journal entry of sentencing, dated September 2, 2015, states in pertinent part:
For the purposes of sentencing, counts 2, 3, 4, 5, 6 and 7 merge with
count 1. State elects to proceed to [sic] on count 1 for the purposes of
sentencing. Defendant is sentenced to life in prison without the
possibility of parole.
(Emphasis deleted.)
The sentencing entry clearly states that Almazan is sentenced to life in
prison without the possibility of parole, just as the trial court stated in court at the
sentencing hearing. (Tr. 1490.) Because the trial court’s sentencing entry comports
with the sentence the trial court imposed at the sentencing hearing, Almazan’s
argument has no merit.
Furthermore, the issue is barred by res judicata. Under the doctrine of
res judicata, a final judgment of conviction bars the convicted defendant from
raising and litigating in any proceeding, except an appeal from that judgment, any
defense or claimed lack of due process that was raised or could have been raised by
the defendant at the trial that resulted in the judgment of conviction, or on an appeal
from that judgment. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).
Therefore, “any issue that could have been raised on direct appeal and was not is res
judicata and not subject to review in subsequent proceedings.” State v. Saxon, 109
Ohio St.3d 176, 2006-Ohio-1245, 826 N.E.2d 824, ¶ 16.
Almazan could have raised the issue of any alleged discrepancy
between the sentence pronounced in court at sentencing and that contained in the
sentencing entry on direct appeal. He did not do so and, therefore, the issue is
barred by res judicata.
Almazan’s argument that res judicata does not apply because his
conviction is void due to the trial court’s alleged failure to sentence him on Counts 2
through 7 before merging those counts into Count 1 is without merit. “A sentence is
void when a sentencing court lacks jurisdiction over the subject matter of the case
or personal jurisdiction over the accused.” State v. Harper, 160 Ohio St.3d 480,
2020-Ohio-2913, 159 N.E.3d 248, ¶ 42. However, “when the sentencing court has
jurisdiction to act, sentencing errors * * * render the sentence voidable, not void,
and the sentence may be set aside if successfully challenged on direct appeal.” Id.The trial court unquestionably had subject matter and personal jurisdiction over
Almazan when it sentenced him in 2015. Accordingly, any alleged error in
sentencing would render Almazan’s sentence voidable, not void, and because he did
not raise the alleged sentencing error on direct appeal, it is therefore now barred by
res judicata.
The first assignment of error is overruled.
In his second assignment of error, Almazan contends that the trial
court committed reversible error by not imposing separate sentences on Counts 2,
3, 4, 5, 6, and 7 before merging them with Count 1. In his third assignment of error,
Almazan asserts that the trial court committed reversible error by not holding a
hearing to determine whether the offenses were allied before finding that they
merged as allied offenses. He further contends that the kidnapping conviction
should not have merged with the felonious assault conviction. These arguments are
likewise barred by the doctrine of res judicata.
Almazan could have but did not raise any issue about merger or allied
offenses on direct appeal. Where a defendant has not raised the issue of allied
offenses on direct appeal, this court has rejected subsequent claims of improper
sentencing on allied offenses as barred by res judicata. See, e.g., State v. Turner,
8th Dist. Cuyahoga No. 106123, 2018-Ohio-2730, ¶ 6 (“The issue of whether two
offenses constitute allied offenses subject to merger must be raised on direct appeal
from a conviction or res judicata will bar a subsequent attempt to raise the issue.”);
State v. Goldsmith, 8th Dist. Cuyahoga No. 95073, 2011-Ohio-840, ¶ 11 (issue of
allied offenses barred by res judicata because the defendant failed to raise the issue
on direct appeal); State v. Poole, 8th Dist. Cuyahoga No. 94759, 2011-Ohio-716, ¶ 13
(“the time to challenge a conviction based on allied offenses is through a direct
appeal”); State v. Padgett, 8th Dist. Cuyahoga No. 95065, 2011-Ohio-1927, ¶ 18 (the
proper avenue for appellant’s merger challenge would have been a direct appeal
from his sentencing). Because Almazan could have but did not raise any issue about
merger or allied offenses on direct appeal of his convictions, the issues are now
barred by the doctrine of res judicata. The second and third assignments of error
are overruled.
Judgment affirmed.
It is ordered that appellee recover from 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and
EMANUELLA D. GROVES, J., CONCUR