Court of Appeals of Ohio, Eleventh District, Ashtabula
Criminal Appeal from the Ashtabula County Court of Common
Pleas, Case No. 2011 CR 18.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley
M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse,
25 West Jefferson Street, Jefferson, OH 44047 (For
A. Alsina, Jr., pro se, PID: A600-263, Trumbull Correctional
Institution, 5701 Burnett Road, Leavittsburg, OH 44430
R. WRIGHT, J.
Appellant, Miguel Alsina, Jr., appeals the trial court's
denial of his motion for resentencing. We affirm.
Alsina pleaded guilty to attempted aggravated murder of a
police officer, felonious assault, and having weapons while
under a disability. He was sentenced in February 2011. We
affirmed his sentence in 2011 in his direct appeal. State
v. Alsina, 11th Dist. Ashtabula No. 2011-A-0016,
In May of 2017, Alsina moved the trial court for resentencing
claiming it impermissibly considered his juvenile
adjudications in enhancing his criminal penalties, contrary
to the holdings in State v. Hand, 149 Ohio St.3d 94,
2016-Ohio-5504, 73 N.E.3d 448, cert. denied, 137
S.Ct. 1074, 197 L.Ed.2d 179 and Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
The trial court disagreed, found these cases inapplicable,
and held that it lacked authority to resentence him.
Alsina raises one assignment of error:
"The trial court erred when using the
Appellant-Defendant's Juvenile history to enhance his
penalties for the crimes the Appellant was accused of."
Alsina pursued a direct appeal in 2011 from his convictions
and raised one assignment of error based on State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
He did not raise the U.S. Supreme Court's decision in
Apprendi, which was decided at the time of his
direct appeal. Accordingly, this argument is barred by res
judicata. State v. Garner, 11th Dist. Lake No.
2017-L-037, 2017-Ohio-7814, ¶18 (res judicata precludes
a defendant from raising any defense or claimed lack of due
process that could have been raised at trial or on direct
appeal.); State v. Awan, 22 Ohio St.3d 120, 489
N.E.2d 277 (1986), syllabus; State v. Jeffries, 182
Ohio App.3d 459, 2009-Ohio-2440, 913 N.E.2d 493, ¶49
(11th Dist.) (finding apparent constitutional issues not
raised in the trial court waived on appeal).
Further, absent exceptions not present, once a conviction
becomes final because a defendant lacks an appellate remedy,
"new case law cannot be applied retroactively even if it
would be relevant to the facts of his case." (Citation
omitted.) Wallace v. State, 11th Dist. Trumbull No.
2004-T-0008, 2004-Ohio-2596, ¶5; compare State v.
Ketterer, 140 Ohio St.3d 400, 2014-Ohio-3973, 18 N.E.3d
1199, ¶14 (finding exception when case determines for
the first time what statute means) and Montgomery v.
Louisiana, 136 S.Ct. 718, 729, 193 L.Ed.2d 599 (2016)
(holding the Constitution requires state collateral review
courts to give retroactive effect to new substantive rule of
constitutional law.) Instead, new case law generally only
applies to cases still pending in the state court system.
Id. citing State v. Evans, 32 Ohio St.2d
185, 187, 291 N.E.2d 466 (1972); State v. Harrison,
11th Dist. Portage No. 2004-P-0068, 2005-Ohio-4212, ¶19;
State v. Perkins, 2nd Dist. Montgomery Nos. 26788,
26797, and 26804, 2016-Ohio-4581, ¶12.
We affirmed Alsina's convictions in December of 2011 and
the case on which he now relies, State v. Hand, 149
Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, was decided
nearly five years later. Because it was decided after his
appeals concluded, we cannot apply it to his 2010
convictions. Wallace, supra.
Finally, even assuming Alsina has the right to argue that
State v. Hand applies, the holding in Hand
was limited to the issue of whether Hand's prior juvenile
adjudication for aggravated robbery constitutes a
first-degree-felony conviction to enhance his sentence.
Id. at ¶3. Hand held that R.C.
2901.08(A) violates the Due Process Clause because it
"is a violation of due process to treat a juvenile
adjudication as the equivalent of an adult conviction for
purposes of ...