[Cite as State v. Aguilar, 2014-Ohio-5777.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                        C.A. No.      14AP0012

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MELVIN AGUILAR                                       COURT OF COMMON PLEAS
                                                     COUNTY OF WAYNE, OHIO
        Appellant                                    CASE No.   10-CR-0264

                                  DECISION AND JOURNAL ENTRY

Dated: December 31, 2014



        HENSAL, Presiding Judge.

        {¶1}     Appellant-Defendant, Melvin Aguilar, appeals a judgment of the Wayne County

Court of Common Pleas that denied his motion for sentencing. For the following reasons, this

Court reverses and remands the matter to the trial court to consider the merits of Mr. Aguilar’s

motion in the first instance.

                                                I.

        {¶2}     In 2010, Mr. Aguilar pleaded guilty to one charge of felonious assault with an

accompanying firearm specification for which the trial court sentenced him to eight years of

imprisonment. This Court upheld his conviction and sentence on appeal. State v. Aguilar, 9th

Dist. Wayne No. 10CA0051, 2011-Ohio-6008. In 2013, Mr. Aguilar moved to withdraw his

plea, which the trial court denied. On January 8, 2014, this Court dismissed Mr. Aguilar’s

attempted appeal of the order denying his motion to withdraw his plea due to lack of jurisdiction
                                                 2


because his appeal was untimely. Mr. Aguilar moved for reconsideration of our order dismissing

his appeal, which we denied on February 7, 2014.

       {¶3}    On March 20, 2014, Mr. Aguilar filed a motion for sentencing, seeking to have

his original sentence declared void. The trial court denied the motion. Mr. Aguilar appeals,

raising two assignments of error.

                                                II.

                                    ASSIGNMENT OF ERROR I

       THERE IS NO FINAL APPEALABLE ORDER WITHIN THE MEANING OF
       CRIM R. 32(C); AND, STATE V. BAKER, 119 OHIO ST. 3D 197, WHEN A
       TRIAL COURT FAILS TO ‘ENTER A FINDING OF GUILT’ AT THE PLEA
       COLLOQUY, STATE V. MILLER, 9TH DIST. NO. 06CA0046, 2007 OHIO
       1353, AT ¶14, AND THEN COMPOUNDS THAT FATAL ERROR BY
       FAILING TO PROPERLY INFORM A CRIMINAL DEFENDANT OF THE
       [CONSEQUENCES] OF A VIOLATION OF A POSTRELEASE SANCTION
       PURSUANT TO: O.R.C. § 2943.032(E); AND WOODS V. TELB (2000), 89
       OHIO ST. 3D 504, 511. SEE ALSO: STATE V. BEDFORD, 184 OHIO APP. 3D
       588, AT: ¶8 (IDENTIFYING THAT THE USAGE OF THE LANGUAGE “UP
       TO” IN COURT’S JOURNAL ENTRY RENDERS THE ATTEMPTED
       SENTENCE A NULLITY, VOID, AND A NONFINAL APPEALABLE
       ORDER.” ID., AT: ¶8 AND ¶11. (SIC)

                                    ASSIGNMENT OF ERROR II

       A JUDGMENT WHICH DOES NOT CONSTITUTE A FINAL APPEALABLE
       ORDER IMPLICATES THE UNDERLYING CONVICTION, STATE V.
       MITCHELL, 187 OHIO APP. 3D 315, AND IS NOT SUBJECT TO
       APPLICATION OF THE DOCTRINE OF RES JUDICATA. SEE: STATE EX
       REL SNEAD V. FERENC, 2014 OHIO 43 (OHIO) 2014 OHIO LEXIS 24[.] (SIC)

       {¶4}    Mr. Aguilar argues that his trial in 2010 did not result in a final, appealable order,

and, thus, his conviction is void. He also argues that this alleged deficiency would not trigger the

application of res judicata. We disagree with the trial court’s decision that it lacked jurisdiction

to substantively address Mr. Aguilar’s claims, as there were no pending appeals at the time that

he filed his motion.
                                                   3


       {¶5}       Mr. Aguilar filed a post-conviction motion to withdraw his guilty plea on

September 26, 2013. On October 7, 2013, the trial court denied his petition, and he attempted to

appeal that decision to this Court. On January 8, 2014, we dismissed his attempted appeal as

untimely. See State v. Aguilar, 9th Dist. Wayne No. 13CA0051 (Jan. 8, 2014). We denied Mr.

Aguilar’s subsequent motion to reconsider on February 7, 2014. Id.

       {¶6}       After this Court dismissed Mr. Aguilar’s appeal concerning the denial of his

motion to withdraw his guilty plea, he filed a motion for sentencing on March 20, 2014. The

trial court denied his motion because “[t]his case has been appealed to the Ninth District Court of

Appeals. This court is without jurisdiction to entertain motions while the matter is under

appeal.” Mr. Aguilar, however, did not have a pending appeal at the time that he filed his motion

for sentencing.

       {¶7}       “[T]his court would exceed its role as a reviewing court if it considered a[n] * * *

issue that the trial court did not consider in the first instance.” State v. George, 9th Dist. Wayne

No. 13CA0036, 2014-Ohio-4123, ¶ 8. Therefore, we remand the matter to the trial court to

consider the motion for sentencing in the first instance. This Court takes no position on the

merits of the arguments of the parties as those arguments are not properly before us.

                                                  III.

       {¶8}       The judgment of the Wayne County Court of Common Pleas is reversed and the

cause remanded for further proceedings consistent with this opinion.

                                                                                 Judgment reversed,
                                                                                and cause remanded.




       There were reasonable grounds for this appeal.
                                                 4


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



CARR, J.
WHITMORE, J.
CONCUR.


APPEARANCES:

MELVIN AGUILAR, pro se, Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
