Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-13-579577-B
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Anthony T. Miranda, Assistant Prosecuting
Attorney, for appellee.
Rodriguez, pro se.
JOURNAL ENTRY AND OPINION
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.
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.
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.
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.
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.
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 ...