[Cite as State v. Nava, 2015-Ohio-5053.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              WYANDOT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 16-15-07

        v.

GILBERTO NAVA,                                            OPINION

        DEFENDANT-APPELLANT.




                Appeal from Wyandot County Common Pleas Court
                           Trial Court No. 12-CR-0042

                                      Judgment Affirmed

                           Date of Decision: December 7, 2015




APPEARANCES:

        Howard A. Elliott for Appellant

        Eric J. Figlewicz for Appellee
Case No. 16-15-07


SHAW, J.

        {¶1} Defendant-appellant, Gilberto T. Nava, appeals the July 17, 2015

judgment of the Wyandot County Court of Common Pleas revoking his

community control sanctions and sentencing him to seventeen months in prison.

On appeal, Nava claims that the trial court erred in convicting him of allied

offenses of similar import, and that his trial counsel was ineffective for failing to

raise the issue at sentencing.

                           Facts and Procedural History

        {¶2} On July 11, 2012, the Wyandot County Grand Jury indicted Nava on

one count of Theft of Drugs and one count of Receiving Stolen Property, both

felonies of the fourth degree. The charges stemmed from Nava taking prescription

drug pills containing the substance hydrocodone bitartrate from an acquaintance’s

home.

        {¶3} Upon arraignment, Nava entered a plea of not guilty and was released

on an own recognizance bond. Nava subsequently filed a motion for Intervention

in Lieu of Conviction.

        {¶4} On January 16, 2013, the trial court held a hearing on Nava’s

intervention motion. On the same day, Nava changed his plea to enter pleas of

guilty to the Theft of Drugs count and the Receiving Stolen Property count stated

in the indictment. In a January 23, 2013 judgment entry, the trial court granted


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Nava’s motion for Intervention in Lieu of Conviction and deferred the finding of

“Guilty” to the charges “pending satisfactory completion of the Defendant’s

Intervention.” (Doc. No. 26 at 4). The trial court ordered Nava to serve two years

of intervention supervision with the first year being intensive supervision.

       {¶5} On April 17, 2014, the Wyandot County Adult Probation Department

filed a motion for capias on grounds that Nava had violated the conditions of his

intervention supervision and had absconded.        The State subsequently filed a

“Motion to Terminate Intervention in Lieu of Conviction and Proceed to

Sentencing,” alleging that Nava had failed to comply with the intervention plan

put into place by the court.

       {¶6} At a hearing held on August 27, 2014, Nava admitted to violating the

conditions of his intervention supervision as alleged by the State in its motion. As

a result, the trial court found probable cause that Nava violated the conditions of

his intervention supervision and also found Nava guilty of one count of Theft of

Drugs and one count of Receiving Stolen Property as stated in the indictment. The

trial court noted that the parties wished to bifurcate the matter and deferred

sentencing for a later date.

       {¶7} Prior to the sentencing hearing, the State filed a supplemental motion

informing the trial court that Nava had continued to violate the conditions of his

supervision by testing positive for marihuana, cocaine, and opiates on a drug


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screen, and by failing to report to his probation officer. Thereafter, Nava failed to

appear for his sentencing and a warrant was issued for his arrest.

       {¶8} On November 5, 2014, Nava appeared for sentencing, where he

admitted to the additional violations of the conditions of his supervision as alleged

by the State in its supplemental motion, and where evidence was presented

relating to the State’s motion to terminate Nava’s Intervention in Lieu of

Conviction. In a judgment entry dated November 19, 2014, the trial court again

journalized its finding of guilt on both counts in the indictment, which was

previously deferred pending Nava’s Intervention in Lieu of Conviction. The trial

court ordered Nava’s intervention be terminated unsuccessfully and placed Nava

on three years of community control for both counts. The hearing transcript

reflects that the trial court notified Nava on the record that his failure to comply

with or complete the terms of his community control would result in the

imposition of a seventeen month prison term for both counts to be served

concurrently. Notification of the seventeen-month prison term was also included

in the trial court’s November 19, 2014 sentencing entry.

       {¶9} On April 1, 2015, the State filed a motion for community control

violations. Nava subsequently appeared for a hearing on the State’s motion where

he admitted to the community control violations and the trial court made a

probable cause determination.


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       {¶10} On July 17, 2015, the trial court revoked Nava’s community control

and imposed a prison term of seventeen months for both offenses to be served

concurrently.

       {¶11} Nava filed this appeal, asserting the following assignments of error.

                       ASSIGNMENT OF ERROR NO. I

       WHERE THE APPELLANT HAS ENTERED HIS PLEAS OF
       GUILTY TO CHARGES OF THEFT AND RECEIVING
       STOLEN PROPERTY OF THE SAME ITEM OF PROPERTY,
       THE SAME DATE, FROM THE SAME VICTIM, THE TRIAL
       COURT IS REQUIRED TO MERGE THE CONVICTIONS
       AND MAY ONLY SENTENCE ON ONE OF THOSE
       OFFENSES.

                      ASSIGNMENT OF ERROR NO. II

       WHEN THE APPELLANT IS FACING A THEFT CHARGE
       AND A RECEIVING STOLEN PROPERTY CHARGE FOR
       THE SAME PROPERTY, THE SAME VICTIM ON THE
       SAME DATE, TRIAL COUNSEL RENDERS INEFFECTIVE
       ASSISTANCE TO THE APPELLANT WHEN THEY FAIL TO
       RAISE THE ISSUE OF MERGER OF THOSE OFFENSES TO
       THE TRIAL COURT.

                                    Discussion

       {¶12} Nava’s assignments of error both address the trial court’s alleged

failure to merge the charges as allied offenses. Because these assignments of error

are intertwined, we elect to address them together.




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                                  Allied Offenses

       {¶13} On appeal, Nava contends that the Theft of Drugs count and the

Receiving Stolen Property count were allied offenses of similar import and should

have been merged at sentencing. Specifically, he claims as a matter of law that the

offenses merge because the charges relate to the same item of property stolen on

the same date from the same victim. As a result, Nava argues that the matter

should be remanded to the trial court for resentencing.

       {¶14} As a preliminary matter, we note that “allied offense claims are

nonjurisdictional and may be barred through application of the principles of res

judicata.” (Citations omitted.) State v. Segines, 8th Dist. Cuyahoga No. 99789,

2013–Ohio–5259, ¶ 7. It is well established that Nava was required to raise his

allied offense argument by directly appealing his November 19, 2014 conviction,

which he failed to do. See e.g., State v. Harlow, 3d Dist. Union No. 14-04-23,

2005-Ohio-959, ¶ 8-12; State v. Williams, 2d Dist. Greene No. 2012-CA-43, 2014-

Ohio-725, ¶ 12; State v. Allbaugh, 4th Dist. Athens No. 12CA23, 2013-Ohio-2031,

¶ 14–18.

       {¶15} “Under the doctrine of res judicata, a final judgment of conviction

bars the convicted defendant from raising and litigating in any proceeding, except

an appeal from that judgment, any defense or any claimed lack of due process that

was raised or could have been raised by the defendant at the trial which resulted in


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that judgment of conviction or on an appeal from that judgment. In turn, the time

to challenge a conviction based on allied offenses is through a direct appeal.”

State v. Dodson, 12th Dist. Butler No. CA2011-02-034, 2011-Ohio-6347, ¶ 9

(finding appellant’s merger challenge on appeal from the revocation of his

community control was barred by res judicata because he did not raise the issue of

whether the offenses were allied offenses of similar import in a timely direct

appeal of his conviction).

       {¶16} On November 19, 2014, the trial court convicted and sentenced Nava

to community control sanctions on both charges. At that time, Nava could have

filed a direct appeal challenging the trial court’s failure to merge the alleged allied

offenses. Since Nava failed to file a direct appeal on this issue, he is now barred

under the doctrine of res judicata from collaterally attacking his conviction

through an appeal of the trial court’s July 17, 2015 entry revoking his community

control. Accordingly, we overrule Nava’s first assignment of error as it relates to

the trial court’s failure to merge the Theft of Drugs and the Receiving Stolen

Property offenses.

                         Ineffective Assistance of Counsel

       {¶17} Under his second assignment of error, Nava claims his trial counsel

was ineffective in failing to object to the trial court’s failure to merge his offenses

as allied offenses of similar import.


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       {¶18} Nava’s argument fails because it is contained in an untimely appeal

from the judgment of his conviction and is barred by res judicata. Any ineffective

assistance claim relating to matters contained within the record should be brought

through a direct appeal of his conviction. See e.g., State v. Guevara, 6th Dist.

Lucas No. L-12-1218; 2013-Ohio-728, ¶ 9; State v. Wilson, 2d Dist. Montgomery

No. 23129, 2013–Ohio–180, ¶ 47-48; State v. Lester, 3d Dist. Auglaize No. 2–11–

20; 2012-Ohio-135, ¶ 14. “If an alleged constitutional error [such as ineffective

assistance of counsel] could have been raised and fully litigated on direct appeal,

the issue is res judicata and may not be litigated in a post-conviction proceeding.”

State v. Franklin, 2d Dist. Montgomery No. 19041, 2002–Ohio–2370, ¶ 9, citing

State v. Perry, 10 Ohio St.2d 175, 180 (1967). Accordingly, we overrule the

second assignment of error.

       {¶19} For all these reasons, the assignments of error are overruled and the

judgment is affirmed.

                                                               Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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