[Cite as State v. Dominguez, 2016-Ohio-5051.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 26853
                                                     :
 v.                                                  :   Trial Court Case No. 2009-CR-1410
                                                     :
 DAVID D. DOMINGUEZ                                  :   (Criminal Appeal from
                                                     :    Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........
                                                OPINION
                             Rendered on the 22nd day of July, 2016.
                                                ...........

MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

DAVID D. DOMINGUEZ, #617-072, London Correctional Institution, Post Office Box 69,
London, Ohio 43140
     Defendant-Appellant, pro se

                                            .............

HALL, J.

        {¶ 1} David D. Dominguez appeals pro se from the trial court’s September 23,

2015 decision overruling a motion to vacate judgment and a motion for resentencing
                                                                                         -2-


pursuant to Crim.R. 52(B).

       {¶ 2} Dominguez’s sole assignment of error states:

              Because defendant failed to object to his sentences in the trial court,

       did he forfeit appellate review of the argument that the trial court committed

       plain error pursuant to Crim.R. 52(B) for failing to hold a merger hearing

       after demonstrating there was a facial showing of allied offenses on the

       record on appeal pursuant to the holding in State v. Rogers June 14th

       decision 2015-Ohio-2459.

(Appellant’s brief at pg. 6).

       {¶ 3} The record reflects that Dominguez was convicted and sentenced in October

2009 following a guilty plea to one count of aggravated vehicular homicide, three counts

of vehicular assault, and two counts of aggravated assault. He received a combination of

consecutive and concurrent sentences totaling 10 years in prison. (Doc. #40). Dominquez

did not file a direct appeal.

       {¶ 4} In May 2012, Dominguez filed a pro se motion to vacate a void sentence

pursuant to R.C. 2941.25, Ohio’s allied-offense statute. (Doc. #48). Therein, he asserted

that some or all of his convictions involved allied offenses of similar import and sought to

be resentenced under the standard set forth in State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061. In July 2012, the trial court overruled Dominguez’s

motion to vacate. It reasoned: “As an initial matter, even if a sentencing error had

occurred, such an error is not jurisdictional and would not render his conviction void.

Secondly, Defendant pled guilty to each offense and his sentence complies with Ohio

C[rim].R. 32.” (Doc. #49 at 2). Dominguez did not appeal from the trial court’s denial of
                                                                                           -3-


his May 2012 motion.

       {¶ 5} Instead, Dominguez filed a pro se November 2012 motion for resentencing.

(Doc. #50). Therein, he requested a hearing for the trial court to determine whether his

multiple convictions were subject to merger as allied offenses. In support, he claimed that

his six convictions involved him striking three people with a car (and killing one of them)

as he attempted to flee from a bar fight. He argued that when a plea agreement is silent

on the issue of allied offenses a trial court must determine, prior to sentencing, whether

allied offenses exist. Because the trial court did not address the allied-offense issue at his

sentencing, Dominguez asserted that his sentence was void.

       {¶ 6} Prior to obtaining a ruling on the foregoing motion, Dominguez filed a pro se

December 2013 motion to vacate judgment. (Doc. #52). Therein, he essentially raised the

same allied-offense argument in the context of a plain-error analysis under Crim.R. 52(B).

He argued, again, that the trial court’s failure to merge allied offenses rendered his

sentence void.

       {¶ 7} The foregoing two motions remained pending in the trial court when, in June

2015, Dominguez filed a third pro se motion, which he captioned as a “Motion for Re-

Sentencing, Pursuant to Crim.R. 52(B) Trial court committed (Plain Error) in failing to

conduct a Merger Hearing pursuant to R.C. 2941.25.” (Doc. #53). Therein, he argued that

the trial court was obligated to address the merger issue at sentencing and that its failure

to do so constituted plain error.

       {¶ 8} In a short September 23, 2015 decision, the trial court overruled Dominguez’s

pro se motions raising the allied-offense issue. It reasoned that res judicata bars all of his

allied-offense arguments, which could have been raised on direct appeal, even if they are
                                                                                           -4-


analyzed in the context of plain error.1 (Doc. #58 at 1-2).

       {¶ 9} On appeal, Dominguez cites State v. Rogers, 143 Ohio St.3d 385, 2015-

Ohio-2459, 38 N.E.3d 860, for the following proposition: “[A]n accused has the burden to

demonstrate a reasonable probability that the convictions are for allied offenses of similar

import committed with the same conduct and without a separate animus; absent that

showing, the accused cannot demonstrate that the trial court’s failure to inquire whether

the convictions merge for purposes of sentencing was plain error.” Id. at ¶ 3. Dominguez

proceeds to argue that the record below does demonstrate a reasonable probability that

allied offenses subject to merger exist in his case and that plain error exists.

       {¶ 10} Upon review, we find Dominguez’s argument to be unpersuasive. We

express no opinion as to the merits of the allied-offense issue or as to whether the record

actually does demonstrate a reasonable probability that allied offenses subject to merger

exist. We cannot reach these issues in the context of Dominguez’s post-conviction

motions, which were the subject of the trial court’s September 23, 2015 ruling. The trial

court correctly recognized that res judicata precludes consideration of Dominguez’s

allied-offense argument, even in the context of plain error, because he could have raised

the issue on direct appeal. State v. Byrd, 2d Dist. Montgomery No. 26700, 2015-Ohio-

5293, ¶ 10 (“The failure to merge allied offenses does not render a judgment void, but

voidable. * * * Consequently, challenges to the trial court’s failure to merge allied offenses



1 In its appellate brief, the State asserts that Dominguez’s motions were the functional
equivalent of untimely petitions for post-conviction relief under R.C. 2953.23. The trial
court did not address this issue in its September 23, 2015 ruling, however, and we need
not do so now. As set forth more fully herein, we agree with the trial court that res judicata
precluded Dominguez from raising the allied-offense issue in his motions, regardless of
their alleged untimeliness.
                                                                                        -5-


are barred by the doctrine of res judicata if they could have been, but were not, raised on

direct appeal.”); see also State v. Haynes, 2d Dist. Clark No. 2013 CA 90, 2014-Ohio-

2675, ¶ 14 (“[T]he issues raised in Haynes’s assignments of error could have been raised

on direct appeal, and are barred by res judicata, regardless of whether they might be

characterized as plain error.”).

       {¶ 11} The Ohio Supreme Court’s decision in Rogers is distinguishable because

that case did involve a direct appeal. In Rogers, the allied-offense issue was raised and

discussed in the context of plain error on direct appeal because it had not been raised

below at sentencing. Unlike the appellant in Rogers, Dominguez did not raise the allied-

offense issue on direct appeal. Indeed, he did not file a direct appeal. Because

Dominguez could have raised the allied-offense issue in a direct appeal, the trial court

correctly concluded that res judicata applied to his post-conviction motions. We see

nothing in Rogers to the contrary.

       {¶ 12} Based on the reasoning set forth above, the trial court’s judgment is

affirmed.

                                     .............

FROELICH, J., and WELBAUM, J., concur.




Copies mailed to:

Mathias H. Heck
Meagan D. Woodall
David D. Dominguez
Hon. Richard Skelton
