State v. Cruz-Altunar
2019 Ohio 2298
Ohio Ct. App.2019Background
- Jose Cruz-Altunar was indicted on three counts (aggravated murder and two murder counts) for the killing of Ricardo Perez; a jury convicted him of two murder counts in 2011.
- At sentencing the trial court found Counts 2 and 3 were allied offenses and merged them for sentencing, but the court imposed 15 years-to-life on each count and ordered them served concurrently (aggregate 15 years-to-life).
- Appellant appealed and his conviction was affirmed on direct appeal; later, in 2018 he moved to vacate his sentence under R.C. 2941.25 and State v. Williams arguing the merged convictions made one sentence void.
- The trial court issued an amended judgment entry vacating the sentence for Count 3 and re-imposed sentence on Count 2 only, without holding a new sentencing hearing or a prosecutor election on the record.
- Cruz-Altunar appealed the amended entry, arguing (1) due process violation because the amended entry was issued outside his presence, (2) the state should have been required to elect which allied count to pursue, and (3) the trial court failed to follow Williams.
- The Tenth District affirmed: it held the amended entry properly corrected the record under Williams and Crim.R.36, the absence of the defendant at issuance did not violate due process, and lack of a prosecutor election did not harm defendant where the state now agreed to the choice.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could issue an amended judgment vacating one of two merged murder sentences without resentencing in defendant's absence | Trial court properly issued amended entry to reflect merger per Williams; no resentencing required where merger was found at original hearing | Amended entry issued outside defendant's presence violated due process and Crim.R.43 | Court: Amended entry was a permissible correction (Crim.R.36/nunc pro tunc) and did not violate due process because it reflected what court had already decided at sentencing |
| Whether the failure of the prosecutor to elect which allied offense to pursue at sentencing invalidates the amended correction | State conceded no election occurred but argued the absence of election was immaterial because statutory punishment for each murder count was identical and state now agrees with the court's choice | Failure to compel state election at correction violated defendant's rights under Whitfield | Court: Election right belongs to the state; absence of prior election does not grant defendant a constitutional right. Because the state agrees with vacating Count 3, no prejudice to defendant |
| Whether the original concurrent sentences for multiple allied offenses were void under Williams and subject to correction at any time | Williams requires merger and deems multiple sentences for allied offenses void; amended entry is proper remedy to vacate the extra sentence | Defendant sought relief under Williams to have the void sentence vacated | Court: Williams applies; the sentence for Count 3 was void and vacated by amended entry; defendant obtained all relief Williams affords |
| Whether res judicata or procedural bars preclude postconviction correction of allied-offense sentencing errors | Williams held such sentences are void, not merely voidable, and may be challenged any time | Defendant relied on postconviction remedy availability | Court: No res judicata bar to correcting void allied-offense sentences; amendment was timely to correct a void sentence |
Key Cases Cited
- State v. Williams, 148 Ohio St.3d 403 (2016) (when trial court convicts of allied offenses, imposing separate sentences is contrary to law and those sentences are void; remedial entry may vacate merged sentences without remand in some circumstances)
- State v. Whitfield, 124 Ohio St.3d 319 (2010) (upon allied-offenses error appellate remedy is reversal and remand for resentencing where the state elects which offense to pursue)
- State v. Fischer, 128 Ohio St.3d 92 (2010) (resentencing limited to correcting a void sentence is a proper remedy)
- State v. Singleton, 124 Ohio St.3d 173 (2009) (discussion of void sentences and merger principles)
- State v. Wilks, 154 Ohio St.3d 359 (2018) (defendant's right to be present applies only to stages where absence would frustrate a fair hearing)
- State v. Bonnell, 140 Ohio St.3d 209 (2014) (trial court may issue nunc pro tunc entries to correct sentencing records to reflect legal findings)
- State v. Jordan, 104 Ohio St.3d 21 (2004) (de novo resentencing required where post-release control notification is omitted from the sentencing hearing)