State v. MelhadoState v. Melhado
Ron O‘Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.
Clive N. Melhado, pro se.
APPEAL from the Franklin County Court of Common Pleas.
SADLER, J.
{¶ 1} Defendant-appellant, Clive N. Melhado, appeals from a judgment of the Franklin County Court of Common Pleas denying his “motion to vacate/void judgment.” For the reasons that follow, we affirm the judgment of the trial court.
I. BACKGROUND
{¶ 2} Arising out of the shooting death of Jerome Cunningham, appellant was indicted on June 21, 2001 on two counts of aggravated murder, with specification, in violation of
{¶ 3} On March 28, 2002, the trial court merged the murder conviction with the conviction for aggravated murder and sentenced appellant to a term of life imprisonment without the possibility of parole based on the aggravated murder conviction. The trial court imposed a concurrent eight-year sentence on the aggravated robbery conviction. Additionally, the trial court imposed a total of three years of incarceration on the firearm specifications.
{¶ 4} The specific facts giving rise to appellant‘s convictions were set forth by this court in his direct appeal in State v. Melhado, 10th Dist. No. 02AP-458, 2003-Ohio-4763, wherein we affirmed his convictions. The Supreme Court of Ohio declined a discretionary appeal in State v. Melhado, 100 Ohio St.3d 1547, 2003-Ohio-6879.
{¶ 5} On January 18, 2005, appellant filed a petition for post-conviction relief, arguing that (1) his constitutional right to a speedy trial was denied, (2) his constitutional right to self-representation was denied in violation of Faretta v. California, 422 U.S. 806 (1975), and (3) double jeopardy barred his conviction for aggravated murder in violation of
{¶ 6} Appellant filed a motion to vacate void judgment in April 2010 arguing that his judgment of conviction and sentence was not a final appealable order, that he was improperly sentenced, and that post-release control was not correctly imposed. The trial court denied appellant‘s motion to vacate void judgment. Appellant filed an appeal of the
{¶ 7} On May 10, 2012, appellant filed a “motion to vacate/void sentence,” the disposition of which is currently before this court. In the motion, appellant argued he was not advised of his ability to appeal his convictions, post-release control was not properly imposed, and his offenses were not properly merged. The trial court denied appellant‘s motion.
II. ASSIGNMENTS OF ERROR
{¶ 8} Appellant timely appealed and brings the following five assignments of error for our review:
- [I.] Trial Court failed to properly impose Post-Release Control pursuant to
Ohio Revised Code 2967.28 . - [II.] Trial Court erred by not considering the necessary factors set forth in
Ohio Revised Code 2929.11 and2929.12 . - [III.] Trial Court erred in not advising of the right to appeal pursuant to
Ohio Criminal Rule 32(B) . - [IV.] Trial Court erred by convicting of charges that were to be considered as allied offenses of similar import pursuant to
Ohio Revised Code 2941.25 . - [V.] Trial Court erred to make separate findings pursuant to
Ohio Revised Code 2929.03(F) .
III. DISCUSSION
{¶ 9} At the outset, we construe appellant‘s motion to vacate or correct sentences as a petition for post-conviction relief. See State v. Reynolds, 79 Ohio St.3d 158, 160 (1997) (in construing definition of criteria under which post-conviction relief may be sought, “where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in
{¶ 10} A trial court may also dismiss a petition for post-conviction relief if it determines that the doctrine of res judicata is applicable. State v. Aleshire, 5th Dist. No. 2011-CA-99, 2012-Ohio-772, ¶ 21, citing State v. Szefcyk, 77 Ohio St.3d 93 (1996). Res judicata precludes a defendant from raising an issue “in a motion for postconviction relief if he or she could have raised the issue on direct appeal.” Reynolds at 161, citing State v. Duling, 21 Ohio St.2d 13 (1970). See also State v. Lester, 3d Dist. No. 2-11-20, 2012-Ohio-135, ¶ 13, citing State v. Wilson, 3d Dist. No. 1-08-60, 2009-Ohio-1735, ¶ 15 (“motions for post-conviction relief will be barred by the doctrine of res judicata if they raise on appeal an issue that could have been raised or was raised on direct appeal“).
{¶ 11} Further,
A. First Assignment of Error
{¶ 12} In his first assignment of error, appellant contends the trial court failed to properly impose post-release control, rendering that part of his sentence void. In support, appellant relies on State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238. Fischer reaffirmed that if a sentence “does not include the statutorily mandated term of postrelease control,” it “is void.” Id. at paragraph one of the syllabus. The court added that such a void sentence “is not precluded from appellate review by principles of res
{¶ 13} Appellant does not dispute that “an individual sentenced for aggravated murder * * * is not subject to postrelease control, because that crime is an unclassified felony to which the postrelease-control statute does not apply.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 36, citing
{¶ 14} The state of Ohio, plaintiff-appellee, contends, inter alia, that, under Fischer, the trial court‘s failure to properly impose post-release control on the aggravated robbery conviction affects only the sentence pertaining thereto; therefore, the remedy would be a resentencing for the limited purpose of imposing post-release control on the aggravated robbery conviction. However, because appellant has already served the sentence for aggravated robbery, resentencing on this conviction is not an available remedy. We agree.
{¶ 16} The Brown court recognized the well-established principle that when a defendant has been convicted of both an offense that carries mandatory post-release control and an unclassified felony to which post-release control is inapplicable, the trial court‘s duty to notify of post-release control is not negated. Id. at ¶ 8, citing State v. Taylor, 2d Dist. No. 20944, 2006-Ohio-843; State v. Seals, 2d Dist. No. 2009 CA 4, 2010-Ohio-2843. The court noted that it is also well-settled that once the sentence for the offense that carries post-release control has been served, the court can no longer correct sentencing errors and impose post-release control at resentencing. Brown at ¶ 11, citing Bezak. Thus, even though the trial court failed to impose post-release control on the aggravated robbery and CCW convictions, because the defendant was sentenced to concurrent terms of incarceration for those convictions and the sentences for those convictions had expired, even though he remained incarcerated, the defendant could not be subject to resentencing on those convictions. Id. at ¶ 14-15. See also State v. Cobb, 8th Dist. No. 93404, 2010-Ohio-5118 (though the trial court failed to impose post-release control on robbery conviction where defendant was sentenced to 18 to life for murder concurrent to five years for robbery, defendant could not be resentenced on robbery conviction to impose post-release control because the time for that conviction had been served); State v. O‘Hara, 8th Dist. No. 95575, 2011-Ohio-3060 (though the defendant remained in jail, because concurrent sentence expired, defendant could not be resentenced to impose post-release control); State v. Turner, 10th Dist. No. 06AP-491, 2007-Ohio-2187 (the expiration of the journalized sentence rather than the offender‘s release from prison is determinative of the trial court‘s authority to resentence); Bezak
{¶ 17} Similarly, in the case sub judice, appellant was sentenced to a term of life imprisonment without the possibility of parole based on his aggravated murder conviction. Additionally, appellant was sentenced to a concurrent eight-year term of imprisonment on the aggravated robbery charge and a three-year term of imprisonment on the firearm specification. The March 28, 2002 sentencing entry, however, fails to make any mention of the imposition of post-release control in connection with the aggravated robbery conviction. While the typical remedy would be a remand for the limited purpose of imposing post-release control for his aggravated robbery conviction, such is not an available remedy in this case. The record reflects that appellant was sentenced to eight years on the aggravated robbery conviction and has been incarcerated for over ten years as he remains incarcerated on the concurrent sentence of life without the possibility of parole. Though appellant remains incarcerated on his aggravated murder conviction, appellant‘s concurrent sentence for the aggravated robbery conviction has been served. Brown; Cobb. Therefore, the court can no longer correct any sentencing error and impose post-release control at a resentencing hearing on the aggravated robbery conviction. Bezak; Brown; Cobb.
{¶ 18} Accordingly, appellant‘s first assignment of error is overruled.
B. Second and Fifth Assignments of Error
{¶ 19} In his second assignment of error, appellant contends the trial court failed to consider the necessary sentencing factors under
{¶ 20} Accordingly, appellant‘s second and fifth assignments of error are overruled.
C. Third and Fourth Assignments of Error
{¶ 21} In his third assignment of error, appellant contends the trial court did not advise him of his right to appeal. In his fourth assignment of error, appellant contends a different merger analysis should have been applied to his convicted offenses. Both of these issues are barred by the doctrine of res judicata because they either were or could have been presented in a direct appeal from the trial court‘s sentencing entry; however, they were not. State v. Richardson, 10th Dist. No. 12AP-640, 2013-Ohio-292, ¶ 10, citing State v. Greenberg, 10th Dist. No. 12AP-11, 2012-Ohio-3975 (doctrine of res judicata bars merger issue). Additionally, because these issues were asserted in an untimely successive petition for post-conviction relief and the conditions of
{¶ 22} Accordingly, appellant‘s third and fourth assignments of error are overruled.
IV. CONCLUSION
{¶ 23} Based on the foregoing, appellant‘s five assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
TYACK and DORRIAN, JJ., concur.