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State v. Cruz-Altunar

Court of Appeals of Ohio, Tenth District

June 11, 2019

State of Ohio, Plaintiff-Appellee,
v.
Jose Cruz-Altunar, Defendant-Appellant.

          APPEAL from the Franklin County Court of Common Pleas No. 10CR-4512

         On brief:

          Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.

         On brief:

          Jose Cruz-Altunar, pro se.

          DECISION

          SADLER, J.

         {¶ 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.

         I. 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.[1] 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.

         II. ASSIGNMENTS OF ERROR

         {¶ 7} Appellant assigns the following as trial court error:

1. MR. CRUZ-ALTUNAR'S U.S. CONSTITUTIONAL RIGHT TO DUE PROCESS WAS VIOLATED WHEN SENTENCE WAS IMPOSED WITHOUT MR. CRUZ-ALTUNAR'S PRESENCE.
2. TRIAL COURT VIOLATED MR. CRUZ-ALTUNAR U.S. CONSTITUTIONAL RIGHTS BY NOT LETTING THE STATE ELECT WHAT COUNT THEY WOULD ...

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