[Cite as State v. Rodriguez, 2019-Ohio-5117.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                           No. 108048
                 v.                               :

JOSE RODRIGUEZ,                                   :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 12, 2019


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


                                            Appearances:

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

                 Jose Rodriguez, pro se.

EILEEN A. GALLAGHER, J.:

                   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

               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.

               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

               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

               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.

              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

              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

              This court granted summary judgment to the judge and denied the

writ. The panel rejected Rodriguez’s challenges to the firearm specification finding:


      1 In November 2018, during the pendency of the mandamus action, the trial court
held the hearing and imposed a mandatory five-year term postrelease control as part of
Rodriguez’s sentence for aggravated robbery.
       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 tunc entry in this
       matter was proper.

Id. at ¶ 20-21. The panel also rejected Rodriguez’s claim that his entire sentence was

void based on the lack of postrelease control:

       Here, the failure of the trial court to include an advisement about
       postrelease control in the sentencing entry did not render his entire
       sentence void * * * only the offending portion of the sentence, the
       postrelease control sanction, is void and may be corrected at any time
       prior to the expiration of the attendant sentence. The remainder of
       Rodriguez’s sentence is not void and is and was capable of invoking
       appellate review. In fact Rodriguez did invoke that review in his
       [direct] appeal.

Id. at ¶ 13.

               The Supreme Court affirmed this court’s decision. See State ex rel.

Rodriguez v. Barker, Slip Opinion No. 2019-Ohio-4155 (“Rodriguez III”). In so

doing, the Supreme Court concluded that Rodriguez’s sentence was not void based

on the trial court’s failure to dispose of a firearm specification and that the court

could correct that error via nunc pro tunc entry. Moreover, the Supreme Court

confirmed Rodriguez’s challenge to the firearm specifications was res judicata

because it could have been raised on direct appeal and, further, that the failure to

impose postrelease control did not impact the finality of the sentencing order.
Partial Resentencing

               Before the trial court held the November 2018 “resentencing hearing

to correct postrelease control,” Rodriguez filed a pro se motion for a new trial

pursuant to “Crim.R. 33(A)(4) and R.C. 2945.79(D),”2 claiming there was

insufficient evidence for conviction.      At the hearing, after the court imposed

postrelease control, it heard argument as to the motion from Rodriguez and the state

before it denied the motion.

               This appeal follows.

Assignments of Error

               Rodriguez raises four assignments of error:

      1. The Sentence the Trial Court Imposed Is Contrary to Law.

      2. The Trial Court Erroneously Limited the Scope of the Re-Sentencing
      Hearing.

      3. Defendant is Guilty of the Lesser-Included Offense of Involuntary
      Manslaughter, Not Aggravated Murder or Murder.

      4. Defendant Did Not Receive Representation by the Counsel
      Guaranteed by the Constitution or Ohio Law.

Scope of Appeal

               Initially, we note that the scope of this appeal is limited solely to any

issue that arises from the resentencing hearing at which the trial court imposed

postrelease control and denied Rodriguez’s motion for a new trial. See State v.

Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶ 30 citing State v.


      2 But see State v. Reed, 65 Ohio St.2d 117, 123, 418 N.E.2d 1359 (1981), fn. 1
(recognizing that R.C. 2945.79(D) was superseded by Crim.R. 33(A)(4)).
Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, at ¶ 40 (“The scope

of an appeal from a new sentencing hearing is limited to issues that arise at the new

sentencing hearing.”).

Law and Analysis

              Each assignment of error fatally implicates the doctrine of res

judicata. Res judicata bars a defendant “who has already had his day in court from

seeking a second on that same issue.” State v. Saxon, 109 Ohio St.3d 176, 2006-

Ohio-1245, 846 N.E.2d 824, ¶ 18. It “promotes the principles of finality and judicial

economy by preventing endless relitigation of an issue on which a defendant has

already received a full and fair opportunity to be heard.” Id. citing State ex rel.

Willys-Overland Co. v. Clark (1925), 112 Ohio St. 263, 268, 147 N.E. 33 (1925).

      Under the doctrine of res judicata, a final judgment of conviction bars
      a convicted defendant who was represented by counsel 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 that
      judgment of conviction, or on an appeal from that judgment.

State v. Perry, 10 Ohio St.2d 175, 176, 226 N.E.2d 104 (1967), paragraph nine of the

syllabus. Thus, where a defendant could assert such an error or did assert such an

error, res judicata precludes any subsequent challenge.

              The first three assignments of error consist of arguments that

Rodriguez has previously raised and which this court as well as the Supreme Court

have previously rejected. As such these arguments are barred by res judicata. The
fourth assignment of error also contains res judicata claims but it also contains an

otherwise meritless claim.

               In the first assignment of error, Rodriguez challenges his sentence on

the basis that the trial court failed to impose a sentence for the firearm specification

attached to the aggravated robbery count. As discussed, this court and the Supreme

Court have rejected this claim. See Rodriguez II, 2019-Ohio-256 at ¶ 20-22; see

Rodriguez III, 2019-Ohio-4155 at ¶ 9-14.

               Moreover, we note that were we to address the merits of Rodriguez’s

claim and accept his argument, it would be a pyrrhic victory for him, resulting in an

additional year of prison being added to his sentence.

               We overrule the first assignment of error.

               The second assignment of error challenges the limited scope of the

resentencing hearing on the basis of the trial court’s initial failure to impose

postrelease control. Rodriguez claims that the court should have conducted a “de

novo sentencing” rather than a limited resentencing and further claims that the

court’s nunc pro tunc entry was improper. As discussed, this court and the

Supreme Court have previously rejected these claims. See Rodriguez II, 2019-

Ohio-256 at ¶ 13, 21; see Rodriguez III, 2019-Ohio-4155 at ¶ 11, 15. Rodriguez

additionally reasserts his statement that the Supreme Court incorrectly decided

State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332. But see

Rodriguez III, 2019-Ohio-4155 at ¶ 16 (“Rodriguez sets forth no compelling reason

to overrule Fischer and we decline to do so.”).
              We overrule the second assignment of error.

              The third assignment of error argues that Rodriguez is not guilty of

aggravated murder or murder, but rather involuntary manslaughter. In essence

Rodriguez challenges his convictions. As discussed, Rodriguez could, and, in fact,

did challenge his convictions in his direct appeal on the basis of the sufficiency and

manifest weight of the evidence. See Rodriguez I, 2015-Ohio-3875 at ¶ 55-69

(affirming convictions over challenges to sufficiency and manifest weight of the

evidence). Accordingly, Rodriguez’s present challenge to his convictions is barred

by res judicata. Rodriguez’s attempt to employ Crim.R. 33(A)(4) as a vehicle to

again challenge his convictions and avoid res judicata does not change this reality.

              Moreover, we note that in relevant part, Crim.R. 33(B) provides:

      Application for a new trial shall be made by motion which, except for
      the cause of newly discovered evidence, shall be filed within fourteen
      days after the verdict was rendered * * * unless it is made to appear by
      clear and convincing proof that the defendant was unavoidably
      prevented from filing his motion for a new trial * * *.

Review of the record indicates that the jury rendered its verdict on August 1, 2014

and that Rodriguez filed his Crim.R. 33 motion on November 19, 2018, well outside

of the fourteen-day period Crim.R. 33(B) provides for filing an application for a new

trial. Additionally, we note that Rodriguez has not produced any newly discovered

evidence.

              As such, the claims that comprise Rodriguez’s Crim.R. 33 motion are

res judicata. Moreover, the motion itself is untimely. The trial court committed no

error in denying it. See State v. Williamson, 8th Dist. Cuyahoga Nos. 107117, 107162
and 107916, 2019-Ohio-1985, ¶ 14 (“Res judicata bars all subsequent new trial

motions that are based on claims that were brought or could have been brought on

direct appeal or in prior motions filed under Crim.R. 33.”); see State v. Bridges, 8th

Dist. Cuyahoga Nos. 103634 and 104506, 2016-Ohio-7298, ¶ 21 (“We cannot disturb

the court's decision to either grant or deny leave under Crim.R. 33 unless the court

abused its discretion.”).

               We overrule the third assignment of error.

               The fourth assignment of error complains of ineffective assistance of

counsel at three different stages of proceedings. Rodriguez claims he was denied the

effective assistance of counsel at trial, on appeal and at the resentencing hearing.

               In order to establish an ineffective assistance of counsel claim, a

defendant must prove (1) his counsel was deficient in some aspect of his

representation, and (2) there is a reasonable probability that, were it not for

counsel's errors, the result of the trial would have been different. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As stated,

Rodriguez previously claimed ineffective assistance of trial counsel as part of his

direct appeal. See Rodriguez I, 2015-Ohio-3875 at ¶ 70-79 (rejecting claim). This

claim is barred by res judicata.

               In this appeal from a limited resentencing, Rodriguez claims he

suffered ineffective assistance of appellate counsel because appellate counsel “failed

to raise any issues regarding trial counsel’s failure to pursue the lesser-included

offense [involuntary manslaughter rather than aggravated murder or murder] or the
trial court’s imposition of a void sentence.” As discussed, Rodriguez’s challenges to

his convictions and sentence have previously been addressed and rejected. See

Rodriguez I, 2015-Ohio-3875 at ¶ 55-69; see Rodriguez III, 2019-Ohio-4155 at ¶ 9-

12. Moreover, we note that Rodriguez did not file an application for reopening

claiming ineffective assistance of appellate counsel. But see App.R. 26(B) (“An

application for reopening shall be filed in the court of appeals where the appeal was

decided within ninety days from journalization of the appellate judgment unless the

applicant shows good cause for filing at a later time.”); see also State v. Taylor, 8th

Dist. Cuyahoga No. 102020, 2015-Ohio-1314, ¶ 9 (ineffective assistance of appellate

counsel claims must be raised in App.R. 26(B) application for reopening).

Procedural deficiencies of Rodriguez’s ineffective assistance of appellate counsel

claim aside, the arguments underlying the claim are res judicata.

               Finally, Rodriguez claims he was denied the effective assistance of

counsel at the resentencing hearing. Rodriguez asserts that counsel’s performance

was deficient because he did not file the previously discussed Crim.R. 33 motion or

argue its merits at the hearing. The record reflects that the trial court assigned

counsel to represent Rodriguez at the “resentencing hearing to correct postrelease

control.” We note that Rodriguez makes no claim that counsel was deficient in his

representation as to the resentencing.

               Rodriguez provides no basis by which we can conclude that counsel,

appointed for the purpose of resentencing, was otherwise obligated to represent him
with regard to a wholly unrelated motion. We are thus unable to conclude counsel

was deficient for not doing so.

              Nevertheless, even were we to assume that counsel was deficient,

Rodriguez makes no claim that this deficiency caused prejudice. Nor can he,

because any argument in support of the Crim.R. 33 motion was meritless.

              We overrule the fourth assignment of error.

              Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry out this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



EILEEN A. GALLAGHER, JUDGE

MARY EILEEN KILBANE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
