[Cite as State v. Dominguez, 2017-Ohio-476.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 27095 : v. : T.C. NO. 09CR1410 : DAVID DOMINGUEZ : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the ___10th___ day of _____February_____, 2017.
MEAGAN D. WOODALL, Atty. Reg. No. 0093466, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
DAVID DOMINGUEZ, Reg. #617-072, London Correctional Institute, P. O. Box 69, London, Ohio 43140 Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} This matter is before the Court on the pro se April 27, 2016 Notice of Appeal
of David Dominguez. Dominguez appeals from the March 30, 2016 “Decision Overruling
Defendant’s Motion for Re-Sentencing.” We hereby affirm the judgment of the trial court.
{¶ 2} On May 20, 2009, Dominguez was indicted on one count of aggravated -2-
vehicular homicide (driving under suspension), in violation of R.C. 2903.06(A)(2)(a), a
felony of the second degree; three counts of vehicular assault, in violation of R.C.
2903.08(A)(2)(b), felonies of the fourth degree; one count of aggravated assault (serious
physical harm), in violation of R.C. 2903.12(A)(1), a felony of the fourth degree; and one
count of aggravated assault (deadly weapon), in violation of R.C. 2903.12(A)(2), a felony
of the fourth degree. Dominguez pled not guilty on May 26, 2009, and he executed a
time waiver on July 7, 2009.
{¶ 3} On August 26, 2009, Dominguez pled guilty to all of the offenses. His
Judgment Entry of Conviction provides that he received a mandatory seven year
sentence for aggravated vehicular homicide; one and a half years on each vehicular
assault offense; and one and a half years on each aggravated assault offense. The court
ordered the sentences on the vehicular assault offenses to be served concurrently with
each other and consecutively with the sentences imposed for aggravated vehicular
homicide and aggravated assault. Finally, the court ordered that the sentences for
aggravated assault to be served concurrently with each other and consecutively with the
sentences for aggravated vehicular homicide and vehicular assault, for an aggregate term
of 10 years. Dominguez did not file a direct appeal.
{¶ 4} On May 25, 2012, Dominguez filed a pro se “Motion to Alter, Amend or
Vacate a Void Sentence Pursuant to Ohio Revised Code 2941.25,” asserting that his
sentence was contrary to law and void, since his offenses were allied offenses of similar
import subject to merger. The State did not respond. On July 9, 2012, the trial court
overruled Dominguez’s motion, noting that as “an initial matter, even if a sentencing error
had occurred, such an error is not jurisdictional and would not render his conviction void. -3-
Secondly, Defendant pled guilty to each offense and his sentence complies with Ohio
Civ.R. 32(C) [sic].” Dominguez did not appeal from the denial of his May 2012 motion.
{¶ 5} On November 5, 2012, Dominguez filed a “Motion for Resentencing (Oral
Hearing Requested).” The motion provided that Dominguez’s offenses arose from a bar
fight in which Dominguez was attacked by three people. The motion provided that he
was choked and hit in the face, and that the offenses occurred when he “tried to pull away
in his vehicle.” The motion provided that Dominguez “now requests that the Court hold
a hearing to determine if indeed his multiple sentences were for allied offense subject to
merger as is required by R.C. 2941.25 and the case law interpreting it.” The State
opposed the motion, asserting that even if the court erred in imposing sentence, the
sentences “would be merely voidable – not void.” The State asserted that Dominguez’s
motion was barred by the doctrine of res judicata, since Dominguez did not file a direct
appeal.
{¶ 6} On December 19, 2013, Dominguez filed a pro se “Motion to Vacate
Judgement,” (sic) asserting that the court’s “failure to Merge allied offenses * * * amounted
to plain error.” On June 12, 2015, Dominguez filed a pro se “Motion for Re-Sentencing,
Pursuant to Crim.R. 52(B) Trial court committed {Plain Error} in failing to conduct a Merger
Hearing pursuant to R.C. 2941.25.” He argued that he “was convicted of several
offenses that all were committed at the same time within the same incident.” On June
17, 2015, the State filed “State’s Memorandum Contra Defendant’s Motion to Vacate
Judgement [sic] and Defendant’s Motion for Re-Sentencing Pursuant to Crim.R. 52(B).”
The State asserted that res judicata applied to bar Dominguez’s “claim that his crimes
should have merged under R.C. 2941.25.” The State further asserted that Dominguez’s -4-
“claim of plain error is also precluded by res judicata.” On July 2, 2015, Dominguez filed
a pro se “Response to State of Ohio’s Memorandum Contra to Defendant’s Motion for
Re[-]sentencing.” Dominguez asserted that “[t]he current motion is about the failure of
the trial court to hold the [Mandatory Hearing] as required by the Statute. Not so much
as the Merger itself, but the failure to hold the Mandatory Hearing in the present case,
constituted Plain Error Pursuant to Crim.R. 52(B) regardless of whether it was brought to
the attention of the court in this case.” Dominguez requested that the court hold a
hearing.
{¶ 7} On September 23, 2015, the trial court issued a “Decision Overruling
Defendant’s Motion to Vacate Judgment and Defendant’s Motion for Re-Sentencing
Pursuant to Crim.R. 52(B),” which provides: “Specifically, the Court finds the doctrine of
[r]es judicata controlling.” The court noted that “[b]ecause the Defendant could have
raised his allied-offense argument in a direct appeal, res judicata precludes him from
doing so now.” The court noted that Sate v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-
6314, 942 N.E.2d 1061 “is of no benefit to the Defendant because ‘[a] new judicial ruling
may be applied only to cases that are pending on the announcement date * * *,’ ” and not
retroactively. Finally, the court determined that Dominguez’s “claim of plain error is also
precluded by res judicata.”
{¶ 8} Dominguez appealed the trial court’s decision, and this Court determined in
part as follows:
* * * We express no opinion as to the merits of the allied-offense issue
or as to whether the record does demonstrate a reasonable probability that
allied offenses subject to merger exist. We cannot reach these issues in -5-
the context of Dominguez’s post-conviction motions, which were the subject
of the trial court’s September 23, 2015 ruling. The trial court correctly
recognized that res judicata precludes consideration of Dominguez’s allied-
offense argument, even in the context of plain error, because he could have
raised the issue on direct appeal. * * *
State v. Dominguez, 2d Dist. Montgomery No. 26853, 2016-Ohio-5051, ¶ 10.
{¶ 9} On March 3, 2016, Dominguez filed his pro se “Motion for Re-Sentencing
Pursuant to R.C. 2967.28 request to correct sentence to improper imposition of Post
Release Control.” Dominguez asserted in part as follows:
This very district had found that using “up to” language when
imposing post release control is error – and renders the post release control
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[Cite as State v. Dominguez, 2017-Ohio-476.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NO. 27095 : v. : T.C. NO. 09CR1410 : DAVID DOMINGUEZ : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
...........
OPINION
Rendered on the ___10th___ day of _____February_____, 2017.
MEAGAN D. WOODALL, Atty. Reg. No. 0093466, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
DAVID DOMINGUEZ, Reg. #617-072, London Correctional Institute, P. O. Box 69, London, Ohio 43140 Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} This matter is before the Court on the pro se April 27, 2016 Notice of Appeal
of David Dominguez. Dominguez appeals from the March 30, 2016 “Decision Overruling
Defendant’s Motion for Re-Sentencing.” We hereby affirm the judgment of the trial court.
{¶ 2} On May 20, 2009, Dominguez was indicted on one count of aggravated -2-
vehicular homicide (driving under suspension), in violation of R.C. 2903.06(A)(2)(a), a
felony of the second degree; three counts of vehicular assault, in violation of R.C.
2903.08(A)(2)(b), felonies of the fourth degree; one count of aggravated assault (serious
physical harm), in violation of R.C. 2903.12(A)(1), a felony of the fourth degree; and one
count of aggravated assault (deadly weapon), in violation of R.C. 2903.12(A)(2), a felony
of the fourth degree. Dominguez pled not guilty on May 26, 2009, and he executed a
time waiver on July 7, 2009.
{¶ 3} On August 26, 2009, Dominguez pled guilty to all of the offenses. His
Judgment Entry of Conviction provides that he received a mandatory seven year
sentence for aggravated vehicular homicide; one and a half years on each vehicular
assault offense; and one and a half years on each aggravated assault offense. The court
ordered the sentences on the vehicular assault offenses to be served concurrently with
each other and consecutively with the sentences imposed for aggravated vehicular
homicide and aggravated assault. Finally, the court ordered that the sentences for
aggravated assault to be served concurrently with each other and consecutively with the
sentences for aggravated vehicular homicide and vehicular assault, for an aggregate term
of 10 years. Dominguez did not file a direct appeal.
{¶ 4} On May 25, 2012, Dominguez filed a pro se “Motion to Alter, Amend or
Vacate a Void Sentence Pursuant to Ohio Revised Code 2941.25,” asserting that his
sentence was contrary to law and void, since his offenses were allied offenses of similar
import subject to merger. The State did not respond. On July 9, 2012, the trial court
overruled Dominguez’s motion, noting that as “an initial matter, even if a sentencing error
had occurred, such an error is not jurisdictional and would not render his conviction void. -3-
Secondly, Defendant pled guilty to each offense and his sentence complies with Ohio
Civ.R. 32(C) [sic].” Dominguez did not appeal from the denial of his May 2012 motion.
{¶ 5} On November 5, 2012, Dominguez filed a “Motion for Resentencing (Oral
Hearing Requested).” The motion provided that Dominguez’s offenses arose from a bar
fight in which Dominguez was attacked by three people. The motion provided that he
was choked and hit in the face, and that the offenses occurred when he “tried to pull away
in his vehicle.” The motion provided that Dominguez “now requests that the Court hold
a hearing to determine if indeed his multiple sentences were for allied offense subject to
merger as is required by R.C. 2941.25 and the case law interpreting it.” The State
opposed the motion, asserting that even if the court erred in imposing sentence, the
sentences “would be merely voidable – not void.” The State asserted that Dominguez’s
motion was barred by the doctrine of res judicata, since Dominguez did not file a direct
appeal.
{¶ 6} On December 19, 2013, Dominguez filed a pro se “Motion to Vacate
Judgement,” (sic) asserting that the court’s “failure to Merge allied offenses * * * amounted
to plain error.” On June 12, 2015, Dominguez filed a pro se “Motion for Re-Sentencing,
Pursuant to Crim.R. 52(B) Trial court committed {Plain Error} in failing to conduct a Merger
Hearing pursuant to R.C. 2941.25.” He argued that he “was convicted of several
offenses that all were committed at the same time within the same incident.” On June
17, 2015, the State filed “State’s Memorandum Contra Defendant’s Motion to Vacate
Judgement [sic] and Defendant’s Motion for Re-Sentencing Pursuant to Crim.R. 52(B).”
The State asserted that res judicata applied to bar Dominguez’s “claim that his crimes
should have merged under R.C. 2941.25.” The State further asserted that Dominguez’s -4-
“claim of plain error is also precluded by res judicata.” On July 2, 2015, Dominguez filed
a pro se “Response to State of Ohio’s Memorandum Contra to Defendant’s Motion for
Re[-]sentencing.” Dominguez asserted that “[t]he current motion is about the failure of
the trial court to hold the [Mandatory Hearing] as required by the Statute. Not so much
as the Merger itself, but the failure to hold the Mandatory Hearing in the present case,
constituted Plain Error Pursuant to Crim.R. 52(B) regardless of whether it was brought to
the attention of the court in this case.” Dominguez requested that the court hold a
hearing.
{¶ 7} On September 23, 2015, the trial court issued a “Decision Overruling
Defendant’s Motion to Vacate Judgment and Defendant’s Motion for Re-Sentencing
Pursuant to Crim.R. 52(B),” which provides: “Specifically, the Court finds the doctrine of
[r]es judicata controlling.” The court noted that “[b]ecause the Defendant could have
raised his allied-offense argument in a direct appeal, res judicata precludes him from
doing so now.” The court noted that Sate v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-
6314, 942 N.E.2d 1061 “is of no benefit to the Defendant because ‘[a] new judicial ruling
may be applied only to cases that are pending on the announcement date * * *,’ ” and not
retroactively. Finally, the court determined that Dominguez’s “claim of plain error is also
precluded by res judicata.”
{¶ 8} Dominguez appealed the trial court’s decision, and this Court determined in
part as follows:
* * * We express no opinion as to the merits of the allied-offense issue
or as to whether the record does demonstrate a reasonable probability that
allied offenses subject to merger exist. We cannot reach these issues in -5-
the context of Dominguez’s post-conviction motions, which were the subject
of the trial court’s September 23, 2015 ruling. The trial court correctly
recognized that res judicata precludes consideration of Dominguez’s allied-
offense argument, even in the context of plain error, because he could have
raised the issue on direct appeal. * * *
State v. Dominguez, 2d Dist. Montgomery No. 26853, 2016-Ohio-5051, ¶ 10.
{¶ 9} On March 3, 2016, Dominguez filed his pro se “Motion for Re-Sentencing
Pursuant to R.C. 2967.28 request to correct sentence to improper imposition of Post
Release Control.” Dominguez asserted in part as follows:
This very district had found that using “up to” language when
imposing post release control is error – and renders the post release control
portion of the sentence void – where mandatory post release control for a
specific number of years is required. See; State v. Adkins 2011 Ohio 2819,
2nd District.
Wherefore, Defendant now request [sic] for a Re[-]Sentencing to
require the trial court to specify the terms of Post Release Control.
Appellant David Dominguez moves this Honorable Court to correct the
October 30th 2009 Termination Entry, as that portion of his sentence was
void due to the improper imposition of Post Release Control as required by
Ohio Law pursuant to R.C. 2967.28.
This court would be reasonable to grant defendant’s Motion for Re-
Sentencing and allow the October 30th 2009 Termination Entry to be
Corrected for the reasons stated herein. * * * -6-
{¶ 10} The State did not respond to Dominguez’s March 3, 2016 motion. In its
decision overruling Dominguez’s motion, the trial court determined as follows:
* * * This Court has reviewed the relevant record and the Termination
Entry. The Court on October 27, 2009 plainly informed the Defendant that
he “will be required to serve a period of three years Post Release Control.”
The Termination Entry, filed On October 30, 2009, specifically states “The
Court notifies the defendant that, as part of this sentence, the defendant will
be supervised by the parole Board for a Period of THREE years Post-
Release Control after the defendant’s release from prison.” The Court
finds that language plain and unambiguous. Accordingly, Defendant’s
motion is NOT WELL-TAKEN and is OVERRULED.
{¶ 11} Dominguez asserts the following assignment of error in the table of
contents of his brief:
First Assignment of Error NO. 1 THE TRIAL COURT ERRED BY
FAILING TO MAKE STATUTORY FINDINGS AS TO THE CONSECUTIVE
SENTENCES, PURSUANT TO R.C. 2929.14(C)(4) WHEN IMPOSING
CONSECUTIVE SENTENCES.
{¶ 12} In the body of his brief, Dominguez asserts as follows:
Assignment of Error No. 1 THE TRIAL COURT ERRED BY
FAILING TO PROPERLY IMPOSE THE MANDATORY PORTIONS OF
POST RELEASE CONTROL AS STATUTORY [sic] REQUIRED
PURSUANT TO R.C. 2967.28(B).
{¶ 13} The body of Dominguez’s brief is addressed exclusively to the imposition of -7-
post-release control. His argument regarding consecutive sentencing was not raised
before the trial court, and we will not consider it as it is not properly before us.
Dominguez asserts in part as follows:
In the present case, defendant asserts that the trial court erred when
it failed to properly impose Post Release control at sentencing. Now
comes the Defendant {David Dominguez} acting Pro Se for this proceeding
only. Defendant asserts to this Honorable Court that pursuant to R.C.
2967.28(b) This Honorable Court failed to properly impose post release
control. Here is Why! Defendant asserts that pursuant to R.C. 2967.28
the trial court is required to impose a “Mandatory” Three years post
release control.
* * * Defendant only argues the Mandatory portion of his sentence as
being Void and therefore contrary to Ohio Law, wherefore his only intent is
to bring this Court’s awareness to the error within his sentence in spite of
being sentenced to a felony two sentence.
{¶ 14} The State responds that “the trial court informed Dominguez that he would
be required to serve a period of three years post-release control, and that language is
mirrored in the termination entry – that he would be supervised for a period of three years
after his release from imprisonment.” The State asserts, “Moreover, the exclusion of the
word ‘mandatory’ in relation to his post-release control sanction is not determinative.”
The State asserts that the “mandatory nature of the term was stated, and Dominguez was
on notice that he was required to be supervised for three years by the parole board.”
{¶ 15} R.C. 2967.28 governs post-release control and provides: -8-
***
(B) Each sentence to a prison term for a felony of the first degree, for
a felony of the second degree, for a felony sex offense, or for a felony of the
third degree that is an offense of violence and is not a felony sex offense
shall include a requirement that the offender be subject to a period of post-
release control imposed by the parole board after the offender's release
from imprisonment. * * * Unless reduced by the parole board pursuant to
division (D) of this section when authorized under that division, a period of
post-release control required by this division for an offender shall be of one
of the following periods:
(2) For a felony of the second degree that is not a felony sex offense, three
years;
{¶ 16} As the trial court indicated, Dominguez’s sentencing transcript reflects that
the previous trial court advised Dominguez at sentencing regarding post-release control.
Specifically, the court noted, “I am required to advise you about post-release control.”
The court then indicated as follows: “Following your release from prison, you will be
required to serve a period of three years post-release control under the supervision of the
parole board.”
{¶ 17} Dominguez’s October 30, 2009 Termination Entry provides: “The Court
notifies the defendant that, as a part of this sentence, the defendant will be supervised by
the Parole Board for a period of THREE years Post-Release Control after the defendant’s -9-
release from imprisonment.” We conclude that the trial court complied with the mandate
of R.C. 2967.28 by including a requirement that Dominguez be subject to post-release
control imposed by the parole board for a period of three years after his release from
imprisonment. Accordingly, Dominguez’s assigned error is overruled, and the judgment
of the trial court is affirmed.
FROELICH, J. and BROGAN, J., concur.
(Hon. James A. Brogan, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Meagan D. Woodall David Dominguez Hon. Richard S. Skelton