[Cite as State v. Pizarro , 2014-Ohio-5344.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 101546

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. MIGUEL PIZARRO

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-07-495634-D

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

RELEASED AND JOURNALIZED: December 4, 2014FOR APPELLANT Miguel Pizarro Inmate No. A-533-493 Grafton Correctional Institution 2500 South Avon Belden Road Grafton, Ohio 44044

ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor

BY: Diane Smilanick Assistant County Prosecutor The Justice Center, 8 th Floor 1200 Ontario Street Cleveland, Ohio 44113LARRY A. JONES, SR., P.J.: {¶1} Defendant-appellant Miguel Pizarro appeal s from the judgment denying his motion for specific performance of breached contract. For the reasons that follow, we affirm. {¶2} In 2007, Pizarro was charged with aggravat ed murder with one- and three-year firearm specifications. He pleaded guilty to invol untary manslaughter with a three-year firearm specification. The trial court sentenced him to ten years on the underlying charge, consecutive to three years on the firearm specification. Th e sentence was also ordered to be served consecutively to a kidnapping conviction in a nother case, Cuyahoga C.P. No. CR-500632; the kidnapping conviction involved th e same victim as the involuntar y manslaughter conviction. This court upheld the conviction in that case. State v. Pizarro , 8th Dist. Cuyahoga No. 93694, 2010-Ohio-4007; see also State v. Pizarro , 8th Dist. Cuyahoga No. 100564, 2014-Ohio-1734 (denying postconviction relief). {¶3} In 2014, Pizarro filed a motion for specific performance of breached contract that the state opposed. The trial court denied Pizarro ’s motion. Pizarro now appeals, raising the following assignment of error for our review: The trial court disregar ded mandatory provisions of R.C. 2941.25 and breached the contractual plea agreement between [the] state of Ohio and appellant where a deviation from mandatory provisions of stat ute rendered [the] sentence contrary to law and not authorize[d] by law and appe llant suffered prejudice when [the] trial court applied res judicata to deny his Civ.R. 60(B) motion for specific performance of breached contract. {¶4} It is Pizarro’s contention that his plea agreement was breached because the trial

court failed to addr ess whether the involuntary manslaughter and kidnapping charges were allied

offenses. {¶5} Res judicata is the “‘[r]ule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusi ve as to the rights of the par ties and their privies, and, as tothem, constitutes an absolute bar to a subseque nt action involving the same claim, demand or

cause of action.’” Holzemer v. Urbanski , 86 Ohio St.3d 129, 132, 712 N.E.2d 713 (1999), quoting Black’s Law Dictionary 1305 (6th Ed.1990). In the criminal law context, the Ohio Supreme Court has 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, ¶ 6. {¶6} Pizarro’s claimed error could ha ve been raised in his dir ect appeal, but was not. He

is therefore now barred under the doctrine of res judicata from raising it here. {¶7} Res judicata aside, there is no merit to the claimed error. “When the plea agreement is silent on the issue of allied offenses of similar import, * * * the trial court is obligated under R.C. 2941.25 to determine whether th e offenses are allied, and if they are, to convict the defendant of only one offense.” State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 29. In line with Underwood , this court has recognized that a stipulation by the parties is sufficient to resolve the issue of merger. State v. Rogers , 8th Dist. Cuyahoga No. 98292, 2013-Ohio-3235, 994 N.E.2d 499, ¶ 40-44. {¶8} The plea agreement here is not silent. The record specifically reflects that the state and Pizarro agreed that the “involuntary manslaug hter and the kidnapping are not allied offenses of similar import.” {¶9} In light of the above, Pizarro’s sole a ssignment of error is without merit and

overruled. {¶10} Judgment affirmed. It is ordered that appellee r ecover of appellant co sts 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 pleascourt to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

LARRY A. JONES, SR., PRESIDING JUDGE KATHLEEN ANN KEOUGH, J., and MELODY J. STEWART, J., CONCUR

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