[Cite as State v. Castro, 2012-Ohio-2206.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97451



                                       STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                 vs.

                                         JOSE CASTRO
                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-413227

        BEFORE:           Cooney, J., Jones, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: May 17, 2012
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Chief Public Defender

John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Daniel T. Van
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:

       {¶1} Defendant-appellant, Jose Castro (“Castro”), appeals the trial court’s denial

of his motion to correct an illegal sentence. Finding no merit to the appeal, we affirm.

       {¶2} In October 2002, Castro was convicted of aggravated burglary, aggravated

robbery, kidnapping, felonious assault, and gross sexual imposition. He was sentenced

to 40½ years in prison. His convictions and sentence were affirmed by this court on

appeal. State v. Castro, 8th Dist. No. 81122, 2002-Ohio-5568.1

       {¶3} Castro was not properly sentenced to postrelease control so he filed a pro se

motion to correct his sentence.    His counsel also filed a motion to “correct the illegal

sentence.”   At the hearing, Castro argued that his convictions should be merged as allied

offenses of similar import.       The court denied Castro’s motions seeking a full

resentencing, and Castro was properly advised of postrelease control by way of a nunc

pro tunc entry.

       {¶4} Castro now appeals, arguing in his sole assignment of error that the court

erred in failing to address whether his convictions should have been merged as allied

offenses of similar import.

       {¶5} It is well 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. Consistent therewith, this

        Castro attacked his sentence on direct appeal on the issues of maximum and consecutive
       1


sentences.
              court has consistently recognized that the doctrine of res
              judicata bars all claims raised in a Crim.R. 32.1 motion that
              were raised or could have been raised in a prior proceeding,
              including a direct appeal. State v. McGee, Cuyahoga App.
              No. 91638, 2009-Ohio-3374; State v. Pickens, Cuyahoga App.
              No. 91924, 2009-Ohio-1791; State v. Gaston, Cuyahoga App.
              No. 82628, 2003-Ohio-5825; see also State v. Coats, Mercer
              App. Nos. 10-09-04 and 10-09-05, 2009-Ohio-3534.

State v. Fountain, 8th Dist. Nos. 92772 and 92874, 2010-Ohio-1202.

       {¶6} Castro failed to raise the issue of allied offenses in his direct appeal.

       {¶7} Moreover, it is well settled that the issue of allied offenses is not properly

raised during resentencing but rather on direct appeal. See State v. Marshall, 8th Dist.

No. 89409, 2007-Ohio-683 (finding that defendant’s allied offense argument was barred

by res judicata because it had already been raised on direct appeal); State v. Martin, 2d

Dist. No. 21697, 2007-Ohio-3585 (issue of merger not within the scope of the trial court’s

limited review of sentencing issues on remand); State v. McCauley, 8th Dist. No. 86671,

2006-Ohio-2875 (finding that the defendant’s allied offenses argument was barred by res

judicata because it was not raised on direct appeal); State v. Poole, 8th Dist. No. 94759,

2011-Ohio-716 (finding that allied offense issue was barred by res judicata when

improperly raised during resentencing hearing).

       {¶8} The Ohio Supreme Court held in State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332, at ¶ 27, that when a trial court fails to properly impose

postrelease control, “that part of the sentence * * * is void and must be set aside.”   The

defendant is not entitled to be resentenced on the entire sentence, “only the portion that is

void may be vacated and otherwise amended.” Id. at ¶ 28;         State v. Gonzalez, 195 Ohio
App.3d 262, 2011-Ohio-4219, 959 N.E.2d 596, ¶ 5 (1st Dist.).                 The Fischer court

concluded that “[t]he scope of an appeal from a resentencing hearing in which a

mandatory term of postrelease control is imposed is limited to issues arising at the

resentencing hearing.” Id. at ¶ 40.

       {¶9} In addressing this exact issue in Poole, this court held that:

       when a court affirms the convictions in an appellant’s first appeal, the
       propriety of those convictions becomes the law of the case, and subsequent
       arguments seeking to overturn them are barred. State v. Harrison,
       Cuyahoga App. No. 88957, 2008-Ohio-921, at ¶ 9. Therefore, in a
       subsequent appeal, only arguments relating to the resentencing are proper.
       State v. Riggenbach, Richland App. No. 09CA121, 2010-Ohio-3392,
       affirmed by Slip Opinion No. 2010-Ohio-6336.

       In further clarification on this issue, we note that the Ohio Supreme Court

       recently stated that “under R.C. 2941.25, the court must determine prior to

       sentencing whether the offenses were committed by the same conduct.”

       State v. Johnson, Slip Opinion No. 2010-Ohio-6314, at the syllabus.

       (Emphasis added.)

(Emphasis sic.)   Id. at ¶ 11-12.

       {¶10} Therefore, in accordance with Fischer and Johnson, we find that the trial

court did not err in refusing to address the issue of allied offenses at Castro’s postrelease

control hearing, as his sentence had been affirmed on direct appeal.    The correction of an

improper imposition of postrelease control does not open the door for appellant to attack

his underlying convictions or other unrelated matters.      Poole at ¶ 13. Thus, Castro’s

argument is barred by the doctrine of res judicata.
      {¶11} Accordingly, the sole assignment of error is overruled.

      {¶12} 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. 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.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
