[Cite as State v. Rodriguez, 2012-Ohio-3352.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97025




                                      STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.



                               ANTONIO RODRIGUEZ
                                                            DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-379959

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

        RELEASED AND JOURNALIZED:                     July 26, 2012
FOR APPELLANT

Stephen L. Miles
20800 Center Ridge Road
Suite 405
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

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

         {¶1} Defendant-appellant, Antonio Rodriguez, appeals the trial court’s denial of

his “Motion to Declare Judgment Void.”       We affirm.

         {¶2} In 2000, Rodriguez pleaded guilty to one count of felonious assault. He

subsequently filed a motion to withdraw his guilty plea, which the trial court denied. He

filed an appeal, which this court dismissed because Rodriguez failed to file the record.

State v. Rodriguez, 8th Dist. No. 78696 (June 21, 2010). In 2002, he filed a “Motion for

the Issuance of an Injunction and/or Restraining Order” challenging his conviction on

postrelease control grounds. The trial court denied the motion and Rodriguez did not

appeal the trial court’s judgment.

         {¶3} In 2009, Rodriguez filed a “Petition To Vacate Or Set Aside Sentence,”

which the trial court denied.     He filed a motion for a delayed appeal, which this court

denied and dismissed his appeal.        State v. Rodriguez, 8th Dist. No. 95079 (June 21,

2010).        In 2010, he filed a “Motion to Declare Judgment Void,” advancing the same

arguments as he had in his prior motions. The trial court denied the motion.

         {¶4} Rodriguez now appeals the denial of his motion to declare his conviction

void, pro se, and raises the following assignment of error for our review:

         I.    The trial court’s October 5, 2000 judgment should be declared as void

         because appellant was not properly advised on postrelease control.

         {¶5} On appeal, Rodriguez argues that his conviction for felonious assault should

be declared void because he was not properly advised of postrelease control at his
October 5, 2000 sentencing hearing.

       {¶6} Rodriguez’s claim is barred by res judicata.       In 2002, Rodriguez filed a

motion “for the issuance of an injunction or restraining order,” arguing that he had not

been properly advised of postrelease control at the sentencing hearing.        The trial court

denied the motion, making the specific finding that it had properly advised Rodriguez of

postrelease control.     Rodriguez did not appeal the trial court’s finding.        In 2009,

Rodriguez filed a motion to vacate or set aside his sentence based again on his postrelease

control argument.      The trial court denied the motion; Rodriguez moved to file a delayed

appeal, and this court denied said motion and dismissed his appeal. Rodriguez, 8th Dist.

No. 95079. Rodriguez then filed a “Motion to Declare Judgment Void” based again on

his postrelease control claims;   the trial court again denied his argument.

       {¶7} Thus, Rodriguez has filed three motions asking to have his conviction

vacated based on his argument that he was not properly advised of postrelease control at

his sentencing hearing. But Rodriguez failed to appeal the trial court’s denial of his

2002 “Motion for the Issuance of an Injunction or Restraining Order.”                 Instead,

Rodriguez chose to wait over six years and file another motion advancing the same

arguments as he had in 2002.

       {¶8} Because the trial court’s denial of Rodriguez’s first motion challenging his

sentence based on postrelease control grounds was an adjudication on the merits of his

claims, was based upon the same facts, and sought the same relief as his second and third

motions challenging his conviction on postrelease control ground, the trial court’s denial
of his 2002 motion operated under res judicata to bar his successive motions.               State v.

Tate, 8th Dist. No. 93936, 2010-Ohio-2357, ¶ 10. Therefore, because Rodriguez did not

properly appeal the court’s denial of his first motion, any successive motions are barred

by res judicata.1

       {¶9} Even if we were able to consider Rodriguez’s appeal, we would be unable to

determine whether the trial court properly sentenced Rodriguez to postrelease control

because Rodriguez did not file a transcript of that hearing.       In Ohio, the appellant has the

duty to file the transcript or such parts of the transcript that are necessary for evaluating

the lower court’s decision.        App.R. 9(B); State v. Peterson, 8th Dist. No. 96958,

2012-Ohio-87, ¶ 7.        Failure to file the transcript prevents an appellate court from

reviewing an appellant’s assignments of error. State v. Turner, 8th Dist. No. 91695,

2008-Ohio-6648, ¶13.       Thus, absent a transcript or alternative record under App.R. 9(C)

or (D), we must presume regularity in the proceedings below.2 State v. Lababidi, 8th

Dist. No. 96755, 2012-Ohio-267, ¶ 13; State v. Rice, 8th Dist. No. 95100,

2011-Ohio-1929.



        We note that this case differs from those in which a defendant challenges his or her sentence
       1


because it is void. In those cases, the Ohio Supreme Court has found res judicata does not apply.
State v. Bailey, 8th Dist. No. 93994, 2010-Ohio-1874, ¶ 7, citing State v. Simpkins, 117 Ohio
St.3d 420, 2008-Ohio-1197, 884 N.E.2d 568. Here, however, Rodriguez is challenging his
underlying conviction, arguing that it should be vacated because his sentence was void.

          We note that Rodriguez filed, as an exhibit to his 2009 motion to vacate his sentence, what
       2


appears to be a portion of the transcript from his plea hearing and the hearing on the motion to
withdraw his guilty plea; however, the full transcript, including the transcript from the sentencing
hearing, is not in the record.
       {¶10} Finally, even if the trial court improperly imposed postrelease control at the

sentencing hearing and his claims were not barred by res judicata, Rodriguez would not

be entitled to have his entire conviction vacated based on an error in imposing postrelease

control.   See State v. Alford, 8th Dist. No. 95946, 2011-Ohio-4811, appeal not allowed

by 131 Ohio St.3d 1414, 2012-Ohio-136, 959 N.E.2d 1058 (holding that “res judicata

applies ‘to other aspects of the merits of a conviction including the determination of guilt

and the lawful elements of the ensuing sentence.’” Id. at ¶ 11, citing State v. Fischer, 128

Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332).

       {¶11} Finally, we note that the trial court sentenced Rodriguez to two years in

prison. Rodriguez is no longer in prison or otherwise under the supervision of the Adult

Parole Authority; his sentence has expired.3 Once the sentence for the offense that

carries postrelease control has been served, the court can no longer correct sentencing

errors and impose postrelease control at resentencing; in other words, once Rodriguez’s

sentence expired, he cannot be subject to resentencing in order to correct the trial court’s

failure to impose postrelease control. Peterson, 2012-Ohio-87, at ¶ 10, citing State v.

Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961.

       {¶12} The sole assignment of error is overruled.

       {¶13} Judgment affirmed.

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


           Although it appears from the pleadings filed in this appeal that Rodriguez is currently
       3


incarcerated in a federal penitentiary, there is no evidence in the record, nor does Rodriguez argue,
that he is still incarcerated or under supervision for this case.
      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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.   Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

JAMES J. SWEENEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
