State v. Banda , 2018 Ohio 1233 ( 2018 )

[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.