[Cite as State v. Delgado, 2015-Ohio-5006.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

JASON DELGADO, 

 DEFENDANT-APPELLANT. 

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CASE NO. 15 MA 26 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 08 CR 884 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Paul Gains 

Prosecutor 

Ralph M. Rivera 

Assistant Prosecutor 

21 W. Boardman St., 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant Jason Delgado, Pro-se 

#A561-065 

Lake Erie Correctional Institution 

501 Thompson Road 

P.O. Box 8000 

Conneaut, Ohio 44030 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Carol Ann Robb 

 

 

 Dated: November 25, 2015 
[Cite as State v. Delgado, 2015-Ohio-5006.]

Donofrio, P.J. 

{¶1} Defendant-appellant, Jason Delgado, appeals from a Mahoning County 

Common Pleas Court judgment denying his motion for resentencing. 

{¶2} On July 31, 2008, a Mahoning County Grand Jury indicted appellant on 

one count of aggravated murder, a first-degree felony in violation of R.C. 

2903.01(A)(F) with a firearm specification; two counts of attempted murder, firstdegree felonies in violation of R.C. 2923.02(A) and R.C. 2903.02(A)(D) with firearm 

specifications; and one count of felonious assault, a first-degree felony in violation of 

R.C. 2903.11(A)(1)(D). Appellant entered a not guilty plea. 

{¶3} On October 30, 2008, pursuant to a plea agreement with plaintiffappellee, the State of Ohio, appellant entered a guilty plea. In exchange for his plea, 

two of his charges were reduced. Count One was reduced from aggravated murder 

with a firearm specification to voluntary manslaughter with a firearm specification and 

Count Three was reduced from attempted murder with a firearm specification to 

felonious assault with a firearm specification. Count Two remained attempted murder 

with a firearm specification and Count Four remained felonious assault without a 

firearm specification. 

{¶4} Appellant and the state also agreed to a sentence of five years for 

voluntary manslaughter plus three years for the firearm specification, three years for 

attempted murder plus three years for the firearm specification, and three years for 

each of the felonious assaults with three years for the firearm specification on the first 

felonious assault count. They further agreed the sentences for voluntary 

manslaughter and felonious assault would be served concurrently and the sentence 

for attempted murder would be served consecutively to the other sentences. The 

parties also stipulated that the firearm specifications would merge. The total agreedupon sentence was 11 years. 

{¶5} The trial court accepted appellant’s guilty plea. It subsequently held a 

sentencing hearing where it sentenced appellant in accordance with the 

recommended sentence. The court entered its judgment entry of sentence on 

December 12, 2008. Appellant did not file a direct appeal from that judgment. 

{¶6} On November 7, 2014, appellant filed a pro se “motion requesting 
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resentencing of consecutive sentences imposed contrary to law.” He requested 

resentencing based on the trial court’s alleged failure to comply with R.C. 

2929.14(C)(4). 

{¶7} The trial court overruled appellant’s motion. Appellant filed a timely 

notice of appeal from this judgment entry. Still acting pro se, appellant now raises 

four assignments of error. 

{¶8} Appellant’s first assignment of error states: 

 THE TRIAL COURT COMMITTED REVERSIBLE ERROR AS A 

MATTER OF LAW WHEN IT FAILED TO FOLLOW RULE 11 OF THE 

OHIO RULES OF CRIMINAL PROCEDURE DURING THE PLEA 

HEARING. 

{¶9} Appellant argues that the trial court erred in accepting his guilty plea. 

Specifically, he contends the court failed to comply with Crim.R. 11(C)(2)(b) by failing 

to inform him that it could proceed directly with judgment and sentence. 

{¶10} The doctrine of res judicata provides that any issue that could have 

been raised on direct appeal, and was not, is barred in later proceedings and not 

subject to review. State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 

824, ¶16. 

{¶11} A court’s compliance with Crim.R. 11(C) goes to an analysis of whether 

a defendant entered his plea knowingly, voluntarily, and intelligently. Thus, if a court 

does not comply with Crim.R. 11(C)’s requirements in accepting the defendant’s plea, 

the plea may be found to be involuntarily entered. 

{¶12} Whether an appellant has entered his plea knowingly, voluntarily, and 

intelligently is an issue properly raised on direct appeal. State v. Kartman, 7th Dist. 

No. 04-BE-13, 2005-Ohio-6441, ¶19. Because appellant failed to file a direct appeal 

in this case, the issue of the voluntariness of his plea is now barred by res judicata. 

{¶13} Appellant’s second assignment of error states: 

 THE TRIAL COURT COMMITTED REVERSIBLE ERROR AS A 
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MATTER OF LAW WHEN IT FAILED TO MERGE THE TWO COUNTS FOR 

SENTENCING PURPOSES. 

{¶14} Here appellant contends the trial court erred in failing to merge his 

convictions for voluntary manslaughter and felonious assault. He urges the two 

offenses are allied offenses of similar import and should have merged for purposes of 

sentencing. 

{¶15} The issue of merger of allied offenses of similar import must be raised 

in an appellant's direct appeal or it is barred by res judicata. State v. Dillard, 7th Dist. 

No. 12 JE 29, 2014-Ohio-439, ¶¶23-24. Thus, in this case, the issue of allied 

offenses is barred by res judicata. 

{¶16} Appellant’s third and fourth assignments of error make the same 

argument. Therefore, we will address them together. They state, respectively: 

 MR. DELGADO SUFFERED INEFFECTIVE ASSISTANCE OF 

TRIAL COUNSEL IN VIOLATION OF THE U.S. CONSTITUTION. 

 MR. DELGADO SUFFERED INEFFECTIVE ASSISTANCE OF 

TRIAL COUNSEL IN VIOLATION OF THE OHIO CONSTITUTION. 

{¶17} In his final two assignments of error, appellant argues his trial counsel 

was ineffective for failing to request an interpreter during his plea and sentencing 

hearings. He states his first language is Spanish and he speaks very limited English. 

Thus, appellant asserts he was prejudiced because he could not communicate 

effectively with his counsel. Appellant goes on to state that he wanted his counsel to 

raise the affirmative defense of self-defense for him but his counsel did not 

understand him so counsel did not raise this defense. Appellant also questions 

whether counsel ever hired an investigator. 

{¶18} A claim of ineffective assistance of trial counsel should be raised in a 

direct appeal. State v. Dillard, 7th Dist. No. 12 JE 29, 2014-Ohio-439, ¶21, 27. Thus, 

this argument is barred by the doctrine of res judicata. 

{¶19} Moreover, the trial court sustained appellant’s oral request for a 
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translator. See August 21, 2008 Judgment Entry. This translator was present at both 

the plea hearing and the sentencing hearing. See November 3, 2008 Judgment 

Entry; December 12, 2008 Judgment Entry. Thus, appellant’s argument on this point 

fails. 

{¶20} Additionally, appellant did not raise this argument in the trial court. The 

judgment entry from which he now appeals disposed of his motion “motion requesting 

resentencing of consecutive sentences imposed contrary to law.” His motion focused 

on his sentence and did not raise a claim for ineffective assistance of trial counsel. 

An appellant's failure to raise an issue in the trial court precludes him from raising it 

for the first time on appeal. State v. Lagese, 7th Dist. No. 11-MA-198, 2013-Ohio5773, ¶15. 

{¶21} Accordingly, appellant’s third and fourth assignments of error are 

barred. 

{¶22} For the reasons stated above, the trial court’s judgment is hereby 

affirmed. 

Waite J., concurs. 

Robb, J., concurs.