[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 401⁄2 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 

 1

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

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