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State v. Rodriguez

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 12, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JOSE RODRIGUEZ, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-579577-B

         JUDGMENT AFFIRMED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda, Assistant Prosecuting Attorney, for appellee.

          Jose Rodriguez, pro se.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, JUDGE

         {¶ 1} Pro se defendant-appellant Jose Rodriguez appeals following a hearing at which the trial court imposed a term of postrelease control and denied a motion for a new trial. We affirm.

         Relevant Procedural History

         {¶ 2} In September 2014, a jury found Rodriguez guilty of aggravated murder, murder, aggravated robbery, robbery and two counts of felonious assault for his role in a robbery that left a victim dead from multiple gunshot wounds. The jury also found Rodriguez guilty of one-year firearm specifications attached to each count.

         {¶ 3} At sentencing, the trial court merged several counts. It sentenced Rodriguez to life in prison with parole eligibility after 20 years for aggravated murder and a concurrent four-year term for aggravated robbery. It also sentenced Rodriguez to one year for a firearm specification consecutive to the overall sentence for an aggregate term of life in prison with possibility of parole after 21 years.

         Direct Appeal

         {¶ 4} Rodriguez filed a timely direct appeal in which he challenged his convictions for aggravated murder and aggravated robbery. State v. Rodriguez, 8th Dist. Cuyahoga No. 101971, 2015-Ohio-3875 ("Rodriguez I "). His assignments of error included challenges to the sufficiency and manifest weight of the evidence as well as a claim of ineffective assistance of counsel. This court rejected Rodriguez's arguments and affirmed the convictions. Rodriguez did not challenge any aspect of his sentence in his direct appeal.

         Subsequent Sentencing Challenge

         {¶ 5} In August 2018, Rodriguez filed a "motion to correct a facially illegal sentence" with the trial court seeking a de novo resentencing. He claimed that the trial court failed to dispose of the firearm specification attached to his aggravated robbery conviction and failed to properly impose a sentence of postrelease control.

         {¶ 6} In September 2018, the trial court granted the motion in part. It entered a nunc pro tunc entry to clarify that it merged the firearm specifications at sentencing and that it was not imposing postrelease control. The court denied Rodriguez's request for a de novo resentencing. Rodriguez did not appeal.

         Mandamus Action

         {¶ 7} In October 2018, Rodriguez sought a writ of mandamus from this court to compel the trial court to vacate the nunc pro tunc journal entry as well as his original sentence. See State ex rel Rodriguez v. Barker, 8th Dist. Cuyahoga No. 107831, 2019-Ohio-256 ("Rodriguez II "). Rodriguez argued that the trial judge failed to dispose of the firearm specification attached to the count of aggravated robbery and that it failed to impose mandatory postrelease control. He claimed these errors made his entire sentence void and that the judge, therefore, lacked jurisdiction to enter the nunc pro tunc entry. The judge moved for summary judgment claiming that she properly merged and disposed of all firearm specifications and noted that she scheduled a limited resentencing hearing for the purpose of imposing postrelease control.[1]

         {¶ 8} This court granted summary judgment to the judge and denied the writ. The panel rejected Rodriguez's challenges to the firearm specification finding:

The lack of sentence on a firearm specification was merely a sentencing error Rodriguez could have and should have raised in his direct appeal. The failure to do so means that the claim preclusion branch of res judicata bars the argument in this action. * * * Rodriguez failed to argue this issue in his direct appeal.
* * *
Rodriguez is not entitled to additional appellate review of his sentence. But even if he were, the trial court's use of a nunc pro ...

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