[Cite as State v. Cruz-Altunar, 2019-Ohio-2298.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                   No. 18AP-951
v.                                                 :           (C.P.C. No. 10CR-4512)

Jose Cruz-Altunar,                                 :     (ACCELERATED CALENDAR)

                 Defendant-Appellant.              :



                                         D E C I S I O N

                                       Rendered on June 11, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, for appellee.

                 On brief: Jose Cruz-Altunar, pro se.

                   APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
        {¶ 1} Defendant-appellant, Jose Cruz-Altunar, appeals from a judgment of the
Franklin County Court of Common Pleas, denying his motion to vacate a void sentence. For
the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On August 2, 2010, a Franklin County Grand Jury indicted appellant on three
felony counts for the murder of Ricardo Perez. Count 1 of the indictment charged appellant
with aggravated murder, in violation of R.C. 2903.01; Count 2 charged appellant with
murder, in violation of R.C. 2903.02, for purposely causing the death of Perez; and Count 3
charged appellant with felony murder, also in violation of R.C. 2903.02, with the
underlying felony being the felonious assault of Perez, in violation of R.C. 2903.11. On
No. 18AP-951                                                                                              2


October 31, 2011, a jury found appellant not guilty of aggravated murder, but guilty of both
counts of murder.
        {¶ 3} As a result of a sentencing hearing held on November 9, 2011, the trial court
determined that Counts 2 and 3 were allied offenses of similar import and should be
merged. Appellee, however, did not make an election as to which count to pursue for
purposes of sentencing. The trial court imposed a sentence of 15 years to life on each count,
but ordered appellant to serve the sentences on the two convictions concurrently, for an
aggregate sentence of 15 years to life.
        {¶ 4} Appellant timely appealed to this court from the judgment of conviction and
sentence. In State v. Cruz-Altunar, 10th Dist. No. 11AP-1114, 2012-Ohio-4833, this court
affirmed appellant's conviction.1 On July 23, 2014, the Supreme Court of Ohio denied
appellant's motion for a delayed appeal. State v. Cruz-Altunar, 139 Ohio St.3d 1482,
2014-Ohio-3195.
        {¶ 5} On September 7, 2018, appellant, pro se, filed a motion to vacate his sentence
arguing that the trial court violated R.C. 2941.25 and the decision of the Supreme Court in
State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658 when it convicted him of allied
offenses of similar import. Appellee opposed the motion. On November 15, 2018, the trial
court issued an entry denying the motion, wherein the trial court stated: "[T]he Court
vacates the sentence as to Count Three and the Defendant is only being sentenced under
Count Two." (Entry Denying Mot. to Void Sentence at 2.) In conjunction with the entry
denying appellant's motion, the trial court issue an amended judgment entry, wherein the
court stated: "Counts Two and Three merge for sentencing purposes," and "[t]he court
vacates the sentence as to Count Three." (Emphasis omitted.) (Nov. 15, 2018 Am. Jgmt.
Entry at 1.) The trial court re-imposed the sentence of 15 years to life as to Count 2 only.
        {¶ 6} Appellant timely appealed to this court from the judgment of the trial court.
II. ASSIGNMENTS OF ERROR
        {¶ 7} Appellant assigns the following as trial court error:
                1. MR. CRUZ-ALTUNAR'S U.S. CONSTITUTIONAL RIGHT
                TO DUE PROCESS WAS VIOLATED WHEN SENTENCE

1 In his direct appeal, appellant asserted the following two assignments of error: "The trial court erred in

refusing to give an instruction on Voluntary Manslaughter when the evidence warranted such an instruction";
and "Appellant's convictions were not supported by sufficient evidence and were against the manifest weight
of the evidence." Cruz-Altunar at ¶ 6. Appellee did not cross-appeal. Id.
No. 18AP-951                                                                                3


                WAS IMPOSED         WITHOUT        MR.      CRUZ-ALTUNAR'S
                PRESENCE.
                2. TRIAL COURT VIOLATED MR. CRUZ-ALTUNAR U.S.
                CONSTITUTIONAL RIGHTS BY NOT LETTING THE STATE
                ELECT WHAT COUNT THEY WOULD PURSUE ON ALLIED
                OFFENSES.
                3. TRIAL COURT VIOLATED MR. CRUZ-ALTUNAR'S U.S.
                CONSTITUTIONAL RIGHT TO DUE PROCESS BY NOT
                FOLLOWING STATE V WILLIAMS 2016-OHIO-7658
                MANDATE TO VOID SENTENCE ON MERGING
                SENTENCES ON ALLIED OFFENSES.
(Sic passim.)
III. LEGAL ANALYSIS
       A. Appellant's First and Third Assignments of Error
       {¶ 8} In appellant's first and third assignments of error, appellant argues that the
trial court erred and violated his constitutional rights when it issued an amended judgment
entry to correct the defect in his sentence. Appellant asserts that the sentence originally
imposed on him was void pursuant to R.C. 2941.25 and the decision of the Supreme Court
in Williams, 148 Ohio St.3d 403, 2016-Ohio-7658.             Accordingly, we will consider
appellant's first and third assignments of error jointly.
       {¶ 9} R.C. 2941.25(A) provides, "[w]here the same conduct by defendant can be
construed to constitute two or more allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may be convicted
of only one." The Supreme Court has recognized that R.C. 2941.25(A) "incorporates the
constitutional protections against double jeopardy. These protections generally forbid
successive prosecutions and multiple punishments for the same offense."              State v.
Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 7.
       {¶ 10} In Williams, a jury found Williams guilty of two counts of aggravated murder
with death penalty specifications (Counts 2 and 3) and one count each of murder (as a
lesser-included offense of the aggravated murder charge alleged in Count 1), kidnapping,
aggravated burglary, violating a protection order, intimidating a crime victim, escape,
having a weapon while under disability, and carrying a concealed weapon, along with
firearm specifications. Id. at ¶ 6. At the sentencing hearing, the trial court determined that
Williams had been found guilty of allied offenses of similar import, and the state elected to
No. 18AP-951                                                                                                 4


have Williams sentenced on the conviction for aggravated murder charged in Count 3. In
accordance with the state's election, the trial court merged Counts 1 and 2 into Count 3 and
imposed a sentence of life imprisonment with no possibility of parole until Williams had
served 30 full years on that count. In the trial court's judgment entry of conviction and
sentence, however, the trial court expressed the intent to merge Counts 1 and 2 into
Count 3, but imposed a prison sentence for each of the three counts in the indictment and
ordered Williams to serve the three prison terms "concurrently and not consecutively with
each other." Id. at ¶ 7.
        {¶ 11} Following Williams' direct appeal,2 he filed a motion seeking a correction of
his sentence arguing that all of his convictions should be merged into the aggravated
murder conviction and that he should be convicted of a single offense of aggravated murder.
The trial court dismissed the motion as an untimely petition for postconviction relief and
the court of appeals affirmed.
        {¶ 12} The Supreme Court reversed the judgment of the court of appeals concluding
that because the trial court found that Williams had been found guilty of allied offenses of
similar import, the trial court did not have authority to impose a separate sentence for each
offense. The Supreme Court explained that a trial court "has a mandatory duty to merge
the allied offenses by imposing a single sentence, and the imposition of separate sentences
for those offenses—even if imposed concurrently—is contrary to law because of the
mandate of R.C. 2941.25(A). In the absence of a statutory remedy, those sentences are
void." Id. at ¶ 28, citing State v. Singleton, 124 Ohio St.3d 173, 2009-Ohio-6434, ¶ 25.
        {¶ 13} The significance of the holding in Williams is the determination by the
Supreme Court that when the trial court convicts an offender of allied offenses of similar
import, the conviction is void rather than voidable. The determination that such sentences
are void rather than voidable means that the judgment of conviction and sentence may be
challenged at any time. In other words, res judicata does not present a bar to postconviction
challenges to a sentence outside the appeals process. Id. at ¶ 2.
        {¶ 14} Another significant aspect of the Williams decision is the acknowledgment
by the Supreme Court that a reviewing court may issue a modified sentencing entry as an


2In Williams' direct appeal, the court of appeals affirmed the trial court's judgment with the exception of the
conviction for violating a protection order. State v. Williams, 9th Dist. No. 24169, 2009-Ohio-3162.
No. 18AP-951                                                                               5


appropriate remedy for a trial court's violation of the merger rules, without the need for
resentencing by the trial court. The Williams court explained the procedure as follows:
               We have recognized that a resentencing hearing limited to
               correcting the void sentence is a proper remedy for a trial
               court's failure to comply with mandatory sentencing laws.
               Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332,
               at ¶ 29. And when a case involving an allied offenses
               sentencing error is remanded for resentencing, the state has
               the right to elect which offense to pursue at resentencing.
               Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182,
               at ¶ 21.
               But a resentencing is not required in all cases. * * *
               The judgment of conviction in this case states the trial court's
               finding that the two counts of aggravated murder and one
               count of murder of which Williams was convicted are allied
               offenses of similar import, and the concurrent sentences it
               imposed for those offenses are therefore contrary to law. But
               there is no need to remand for resentencing, because at the
               sentencing hearing, the state elected to have Williams
               sentenced for aggravated murder as charged in Count three,
               and the trial court had no discretion to impose separate
               sentences for Counts one and two.
               Accordingly, we modify the judgment of the court of appeals
               to vacate the sentences imposed for murder in Count one and
               aggravated murder in Count two, which the trial court found
               subject to merger. The remaining convictions and sentences,
               including the sentence of life with the possibility of parole
               after 30 years imposed for aggravated murder in Count three,
               are not affected by our ruling today.
               We recognize that our decision will not change the aggregate
               sentence Williams received. * * * We expect that our decision
               today will clarify the path going forward for lawyers, litigants,
               and judges of our state.
(Emphasis added.) Id. at ¶ 30-34.
       {¶ 15} Under Williams, a remand for a resentencing hearing is not required in order
to vacate an erroneous conviction where the trial court has determined at the original
sentencing hearing that merger applies and the state has made an election of which charge
to pursue for sentencing. In response to appellant's motion in this case, and in an effort to
comply with Williams, the trial court issued an amended judgment entry vacating
appellant's conviction as to Count 3 of the indictment. The trial court's amended judgment
No. 18AP-951                                                                                              6


entry conforms to the trial court's prior determination at the sentencing hearing that the
charge of murder as to Count 2 of the indictment and the charge of murder as to Count 3 of
the indictment merge for purposes of sentencing.3 Accordingly, we find that the trial court's
amended judgment entry complies with Williams. Appellant obtained all of the relief to
which he was entitled under Williams and R.C. 2941.25(A) when the trial court issued the
amended judgment entry.
        {¶ 16} Appellant next contends that the trial court violated appellant's
constitutional rights when the trial court issued the amended judgment entry outside of his
presence. We disagree.
        {¶ 17} Under the auspices of due process, "[a]n accused has a fundamental right to
be present at all critical stages of his criminal trial. Article I, Section 10, Ohio Constitution;
Crim.R. 43(A)." State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 215. "An accused's
absence, however, does not necessarily result in prejudicial or constitutional error. '[T]he
presence of a defendant is a condition of due process to the extent that a fair and just
hearing would be thwarted by his absence, and to that extent only.' " (Emphasis sic.) Wilks
at ¶ 215, quoting Snyder v. Massachusetts, 291 U.S. 97, 107-08 (1934), reversed on other
grounds, Malloy v. Hogan, 378 U.S. 1 (1964).
        {¶ 18} Crim.R. 43(A) provides that "the defendant must be physically present at
every stage of the criminal proceeding and trial, including * * * the imposition of sentence,
except as otherwise provided by these rules." (Emphasis added.) Crim.R. 36 provides that
"[c]lerical mistakes in judgments, orders, or other parts of the record, and errors in the
record arising from oversight or omission, may be corrected by the court at any time." The
term "clerical mistake" as used in Crim.R. 36 refers to a mistake or omission, mechanical
in nature and apparent on the record, which does not involve a legal decision or judgment.
State v. Williams, 6th Dist. No. L-02-1394, 2004-Ohio-466. Though trial courts possess
authority to correct errors in judgment entries so that the record speaks the truth, " 'nunc
pro tunc entries are limited in proper use to reflecting what the court actually decided, not
what the court might or should have decided or what the court intended to decide.' " Id. at
¶ 7, quoting State v. Rowland, 3rd Dist. No. 5-01-39, 2002-Ohio-1421, ¶ 10-11.


3The transcript contains the following finding: "THE COURT: And just so the record is clear, Counts Two
and Three do merge for sentencing purposes." (Tr. Vol. III at 561.)
No. 18AP-951                                                                                               7


        {¶ 19} There is no question in this case that appellant was physically present at the
sentencing hearing in 2011. As noted above, the trial court issued the amended judgment
entry to both comply with Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, and to accurately
reflect the trial court's prior determination at the sentencing hearing that the charge of
murder as to Count 2 of the indictment and charge of murder as to Count 3 of the
indictment merge for purposes of sentencing. The amended judgment entry did not change
appellant's aggregate sentence but merely vacated one of appellant's murder convictions as
the trial court was required to do on finding, at the sentencing hearing, that merger applied.
Under these circumstances, we find no merit in appellant's contention that the trial court
violated appellant's due process rights when it issued the amended judgment entry outside
of his presence. See Columbus v. Beasley, 10th Dist. No. 17AP-629, 2019-Ohio-719, ¶ 72.
See also State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177 (authorizing trial court to
issue nunc pro tunc entry incorporating R.C. 2941.19(C)(4) findings in support of the
imposition of a consecutive sentence).4
        {¶ 20} For the foregoing reasons, appellant's first and third assignments of error are
overruled.
        B. Appellant's Second Assignment of Error
        {¶ 21} In his second assignment of error, appellant contends that the trial court
violated his constitutional rights when it issued the amended judgment entry because the
record shows that the prosecutor did not elect which murder charge to pursue at
sentencing. We disagree.
        {¶ 22} In Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, the trial court, in a bench trial,
found Whitfield guilty of felony drug possession and felony drug trafficking, imposed a
three-year prison term for each offense, but ordered Whitfield to serve the sentences
concurrently. Whitfield appealed and the appellate court found reversible error in the
court's failure to merge the two allied offenses. Whitfield at ¶ 2-3. The appellate court,
however, reversed only the portion of the judgment related to the drug-possession charge,
and instructed the trial court to vacate the drug-possession conviction on remand. Id. at
¶ 4. In the state's appeal from the judgment of the court of appeals, one of the questions for

4 By contrast, de novo resentencing is required where the judgment entry imposes post-release control but the

mandatory post-release notification is absent from the sentencing hearing. State v. Jordan, 104 Ohio St.3d
21, 2004-Ohio-6085.
No. 18AP-951                                                                               8


the Supreme Court was the proper procedure for an appellate court to follow on finding a
violation of R.C. 2941.25 in the trial court's judgment entry of sentence.
       {¶ 23} In reversing the court of appeals, the Whitfield court noted that the proper
remedy for an allied-offenses sentencing error was for the appellate court to "reverse the
judgment of conviction and remand for a new sentencing hearing at which the state must
elect which allied offense it will pursue against the defendant." Id. at paragraph two of the
syllabus. The Whitfield court explained that the state retains discretionary power to elect
which offense it wants the trial court to sentence upon reversal for an allied-offenses
sentencing error. Id. at ¶ 20-21. Though the language of R.C. 2941.25 does not expressly
provide that the state must choose which of the allied offenses to pursue at sentencing, the
Whitfield court stated that "[t]he General Assembly has made clear that it is the state that
chooses which of the allied offenses to pursue at sentencing, and it may choose any of the
allied offenses." Id. at ¶ 20, citing State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569,
¶ 16, 43, citing Maumee v. Geiger, 45 Ohio St.2d 238, 244 (1976); Legislative Service
Commission Summary of Am.Sub.H.B. No. 511, The New Ohio Criminal Code (June 1973)
69.
       {¶ 24} Here, the trial court's November 15, 2018 entry denying his motion states in
relevant part: "The State did not elect a count for the Defendant to be sentenced and the
Court imposed a sentence for Counts Two and Three. Now, the Court vacates the sentence
as to Court Three and the Defendant is only being sentenced under Count Two." (Nov. 15,
2018 Entry at 2.)
       {¶ 25} Appellee concedes that the prosecutor made no election at appellant's
original sentencing hearing. Appellee maintains, however, that because R.C. 2929.02(B)(1)
mandated a prison sentence of 15 years to life for each of the two murder charges for which
appellant was found guilty, the absence of an election by the prosecutor as to which charge
to pursue for sentencing was of no consequence to either party in this case. Moreover, in
response to appellant's motion, appellee merely urged the trial court to issue a corrected
judgment without expressing any preference as to which of the two murder charges
appellee wished to pursue for sentencing. And, in this appeal, appellee has expressed
agreement with the trial court's amended judgment entry vacating the conviction on
Count 3 and convicting on Count 2.
No. 18AP-951                                                                                  9


       {¶ 26} The Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, court concluded that
when a trial court determines that the jury has found the offender guilty of allied offenses
of similar import, the trial court violates R.C. 2941.25 and the prohibition against double
jeopardy by imposing multiple sentences. Williams holds that because such a sentence is
contrary to law, the sentence is void. Id. at ¶ 28. Our reading of Williams convinces us the
absence of an election by the state was not the reason the Williams court declared Williams'
sentence void. Rather, it was the violation of R.C. 2941.25 and double jeopardy that
resulted in a void sentence. Our reading of Whitfield also convinces us that the right to elect
the charge to pursue for sentencing is a right belonging to the state of Ohio, not the offender.
As previously noted, appellee has expressed agreement with the choice made by the trial
court in this case.
       {¶ 27} Because the absence of an election by appellee as to which of the two murder
charges appellee wished to pursue for sentencing does not implicate any constitutional
right belonging to appellant, appellant's second assignment of error is overruled.
IV. CONCLUSION
       {¶ 28} Having overruled appellant's three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
                                                                         Judgment affirmed.
                      BROWN and LUPER SCHUSTER, JJ., concur.
                                     _____________
