from the Franklin County Court of Common Pleas No. 10CR-4512
O'Brien, Prosecuting Attorney, and Michael P. Walton, for
Cruz-Altunar, pro se.
1} Defendant-appellant, Jose Cruz-Altunar, appeals
from a judgment of the Franklin County Court of Common Pleas,
denying his motion to vacate a void sentence. For the reasons
that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
2} On August 2, 2010, a Franklin County Grand Jury
indicted appellant on three felony counts for the murder of
Ricardo Perez. Count 1 of the indictment charged appellant
with aggravated murder, in violation of R.C. 2903.01; Count 2
charged appellant with murder, in violation of R.C. 2903.02,
for purposely causing the death of Perez; and Count 3 charged
appellant with felony murder, also in violation of R.C.
2903.02, with the underlying felony being the felonious
assault of Perez, in violation of R.C. 2903.11. On October
31, 2011, a jury found appellant not guilty of aggravated
murder, but guilty of both counts of murder.
3} As a result of a sentencing hearing held on
November 9, 2011, the trial court determined that Counts 2
and 3 were allied offenses of similar import and should be
merged. Appellee, however, did not make an election as to
which count to pursue for purposes of sentencing. The trial
court imposed a sentence of 15 years to life on each count,
but ordered appellant to serve the sentences on the two
convictions concurrently, for an aggregate sentence of 15
years to life.
4} Appellant timely appealed to this court from the
judgment of conviction and sentence. In State v.
Cruz-Altunar, 10th Dist. No. 11AP-1114, 2012-Ohio-4833,
this court affirmed appellant's conviction. On July 23, 2014,
the Supreme Court of Ohio denied appellant's motion for a
delayed appeal. State v. Cruz-Altunar, 139 Ohio
St.3d 1482, 2014-Ohio-3195.
5} On September 7, 2018, appellant, pro se, filed a
motion to vacate his sentence arguing that the trial court
violated R.C. 2941.25 and the decision of the Supreme Court
in State v. Williams, 148 Ohio St.3d 403,
2016-Ohio-7658 when it convicted him of allied offenses of
similar import. Appellee opposed the motion. On November 15,
2018, the trial court issued an entry denying the motion,
wherein the trial court stated: "[T]he Court vacates the
sentence as to Count Three and the Defendant is only being
sentenced under Count Two." (Entry Denying Mot. to Void
Sentence at 2.) In conjunction with the entry denying
appellant's motion, the trial court issue an amended
judgment entry, wherein the court stated: "Counts Two
and Three merge for sentencing purposes," and
"[t]he court vacates the sentence as to Count
Three." (Emphasis omitted.) (Nov. 15, 2018 Am. Jgmt.
Entry at 1.) The trial court re-imposed the sentence of 15
years to life as to Count 2 only.
6} Appellant timely appealed to this court from the
judgment of the trial court.
ASSIGNMENTS OF ERROR
7} Appellant assigns the following as trial court
1. MR. CRUZ-ALTUNAR'S U.S. CONSTITUTIONAL RIGHT TO DUE
PROCESS WAS VIOLATED WHEN SENTENCE WAS IMPOSED WITHOUT MR.
2. TRIAL COURT VIOLATED MR. CRUZ-ALTUNAR U.S. CONSTITUTIONAL
RIGHTS BY NOT LETTING THE STATE ELECT WHAT COUNT THEY WOULD