State v. Banda

2018 Ohio 1233

• Court: Ohio Court of Appeals
• Decided: March 30, 2018
• Docket: L-17-1199
• Status: Published

Opinion

[Cite as State v. Banda, 2018-Ohio-1233.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals No. L-17-1199

Appellee Trial Court No. CR0201402517

v.

Jaime Banda aka Jamie Banda DECISION AND JUDGMENT

Appellant Decided: March 30, 2018

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.

Jaime Banda, pro se.

PIETRYKOWSKI, J.

{¶ 1} Appellant, Jaime Banda, filed an accelerated appeal from the July 13, 2017

judgment of the Lucas County Court of Common Pleas denying his motion to vacate his

sentence. Appellant appeals and presents the following assignments of error: 1. Whether Counsel Failed To Object To The Allied Offenses That

Constituted Ineffective Assistance of Counsel.

2. Whether The Trial Court Abused Its Discretion.

{¶ 2} In 2014, Banda pled guilty under North Carolina v. Alford, 400 U.S. 25, 91

S.Ct. 160, 27 L.Ed.2d 162 (1970), to a lesser included offense of burglary and violating a

protection order. He was convicted and sentenced on December 23, 2014, to a total of

seven years of imprisonment, five years on Count 1 and 24 months on Count 2. Banda

did not file a timely direct appeal.

{¶ 3} On August 10, 2015, Banda moved to vacate the sentencing judgment on the

grounds of plain error alleging the two offenses were allied offenses of similar import

and, therefore, it was unlawful for the court to impose consecutive sentences. The trial

court fully addressed the issue and denied Banda’s motion on October 29, 2015. The trial

court found that the offenses were not allied offenses of similar import. Appellant filed

an appeal from that judgment on December 8, 2015, but we dismissed the appeal on

January 11, 2016, because it was untimely. Appellant sought to file a delayed appeal

from the October 29, 2015 judgment entry, but his motion was denied on June 28, 2016.

{¶ 4} Banda also filed two additional motions to raise the issue of allied offenses

on February 16, 2016, and on April 17, 2017. The trial court denied both motions on

March 2, 2016, and July 13, 2017. Appellant filed a timely appeal for the later judgment.

{¶ 5} On appeal, appellant argues that his alleged errors are not barred by the

doctrine of res judicata because R.C. 2941.25 prohibits a court from imposing

2. consecutive sentences for allied offenses of similar import. Therefore, he argues the

original sentencing judgment is void on its face. Appellant’s argument lacks merit.

{¶ 6} If the trial court determined that offenses are not allied offenses of similar

import or did not address the issue before imposing separate sentences for each offense,

the sentence is only voidable and a challenge to the finding or failure to find the two

offenses are allied offenses must be raised on direct appeal. State v. Williams, 148 Ohio

St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 26, citing State v. Holdcroft, 137 Ohio

St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8-9. However, if the trial court determined

that two offenses were allied offenses of similar import but failed to merge the offenses

and impose a single sentence, the sentence is contrary to law and void. Id. at ¶ 28. Only

a void sentence may be challenged at any time, including by collateral attack. State ex

rel. McKinney v. Schmenk, Slip Opinion No. 2017-Ohio-9183, ¶ 12.

{¶ 7} Furthermore, claims of ineffective assistance of counsel which could have

been raised on direct appeal are barred from being raised again under the doctrine of res

judicata. State v. Davis, 119 Ohio St.3d 422, 2008-Ohio-4608, 894 N.E.2d 1221, ¶ 6.

{¶ 8} In the case before us, appellant failed to file a timely appeal from his original

conviction and sentencing. In an appeal, appellant could have raised the issue of whether

his offenses were allied offenses and challenged that his counsel rendered ineffective

assistance by failing to object to his sentence on both counts. Furthermore, the trial court

considered and denied appellant’s alleged error in his first motion to arrest judgment and

appellant failed to file a timely appeal. Therefore, the determination that the offenses

3. were not allied offenses has been addressed and the issue is barred by the doctrine of res

judicata. We find appellant’s first and second assignments of error not well-taken.

{¶ 9} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Lucas County

Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE

4.