[Cite as State v. Pizarro, 2014-Ohio-5344.]




                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 101546



                                              STATE OF OHIO

                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                              MIGUEL PIZARRO

                                                                 DEFENDANT-APPELLANT




                                                JUDGMENT:
                                                 AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-07-495634-D

        BEFORE:           Jones, P.J., Keough, J., and Stewart, J.

        RELEASED AND JOURNALIZED: December 4, 2014
FOR APPELLANT

Miguel Pizarro
Inmate No. A-533-493
Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Diane Smilanick
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

       {¶1} Defendant-appellant Miguel Pizarro appeals from the judgment denying his motion

for specific performance of breached contract. For the reasons that follow, we affirm.

       {¶2} In 2007, Pizarro was charged with aggravated murder with one- and three-year

firearm specifications. He pleaded guilty to involuntary manslaughter with a three-year firearm

specification. The trial court sentenced him to ten years on the underlying charge, consecutive

to three years on the firearm specification.       The sentence was also ordered to be served

consecutively to a kidnapping conviction in another case, Cuyahoga C.P. No. CR-500632; the

kidnapping conviction involved the same victim as the involuntary manslaughter conviction.

This court upheld the conviction in that case. State v. Pizarro, 8th Dist. Cuyahoga No. 93694,

2010-Ohio-4007; see also State v. Pizarro, 8th Dist. Cuyahoga No. 100564, 2014-Ohio-1734

(denying postconviction relief).

       {¶3} In 2014, Pizarro filed a motion for specific performance of breached contract that

the state opposed. The trial court denied Pizarro’s motion. Pizarro now appeals, raising the

following assignment of error for our review:

       The trial court disregarded mandatory provisions of R.C. 2941.25 and breached
       the contractual plea agreement between [the] state of Ohio and appellant where a
       deviation from mandatory provisions of statute rendered [the] sentence contrary to
       law and not authorize[d] by law and appellant suffered prejudice when [the] trial
       court applied res judicata to deny his Civ.R. 60(B) motion for specific
       performance of breached contract.

       {¶4} It is Pizarro’s contention that his plea agreement was breached because the trial

court failed to address whether the involuntary manslaughter and kidnapping charges were allied

offenses.

       {¶5} Res judicata is the “‘[r]ule that a final judgment rendered by a court of competent

jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to
them, constitutes an absolute bar to a subsequent action involving the same claim, demand or

cause of action.’” Holzemer v. Urbanski, 86 Ohio St.3d 129, 132, 712 N.E.2d 713 (1999),

quoting Black’s Law Dictionary 1305 (6th Ed.1990). In the criminal law context, the Ohio

Supreme Court has recognized that the doctrine of res judicata bars claims that were raised or

could have been raised on direct appeal. State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608,

894 N.E.2d 1221, ¶ 6.

       {¶6} Pizarro’s claimed error could have been raised in his direct appeal, but was not. He

is therefore now barred under the doctrine of res judicata from raising it here.

       {¶7} Res judicata aside, there is no merit to the claimed error.            “When the plea

agreement is silent on the issue of allied offenses of similar import, * * * the trial court is

obligated under R.C. 2941.25 to determine whether the offenses are allied, and if they are, to

convict the defendant of only one offense.”          State v. Underwood, 124 Ohio St.3d 365,

2010-Ohio-1, 922 N.E.2d 923, ¶ 29.         In line with Underwood, this court has recognized that a

stipulation by the parties is sufficient to resolve the issue of merger. State v. Rogers, 8th Dist.

Cuyahoga No. 98292, 2013-Ohio-3235, 994 N.E.2d 499, ¶ 40-44.

       {¶8} The plea agreement here is not silent. The record specifically reflects that the state

and Pizarro agreed that the “involuntary manslaughter and the kidnapping are not allied offenses

of similar import.”

       {¶9} In light of the above, Pizarro’s sole assignment of error is without merit and

overruled.

       {¶10} Judgment affirmed.

       It is ordered that appellee recover of 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 this judgment into execution.

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

Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
MELODY J. STEWART, J., CONCUR


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