STATE OF OHIO v. ANDRE MELTON
No. 96621
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 17, 2011
[Cite as State v. Melton, 2011-Ohio-5929.]
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-327341
BEFORE: Blackmon, P.J., Cooney, J., and Keough, J.
RELEASED AND JOURNALIZED: November 17, 2011
ATTORNEYS FOR APPELLANT
Timothy Young Ohio Public Defender
By: Stephen P. Hardwick Assistant Public Defender Ohio Public Defender‘s Office 250 East Broad St., Suite 1400 Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
By: Matthew E. Meyer Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113
{1} Appellant Andre Melton appeals his conviction for aggravated murder and assigns the following errors for our review:
“I. The trial court erred by failing to issue a sentencing opinion pursuant to
R.C. 2929.03(F) .”“II. The trial court erred by accepting Mr. Melton‘s plea and sentencing him for aggravated murder, with capital specifications without taking any evidence, without any recorded deliberation or determination by the three-judge panel as to the appropriateness of the charge, without any finding on the record that aggravated murder had been proven beyond a reasonable doubt, and without journalizing a
finding of guilt. Accordingly, he has no valid conviction and his sentence is void.” “III. The trial court erred by accepting Mr. Melton‘s plea and sentencing him for aggravated murder with capital specifications in the absence of a signed jury waiver filed with the clerk.”
“IV. The trial court erred by imposing court costs in the entry without first imposing them in open court.”
{2} Having reviewed the record and pertinent law, we affirm Melton‘s conviction. The apposite facts follow.
Facts
{3} On February 21, 1996, Melton pled guilty to aggravated murder with a mass murder capital specification, and a gun specification. As part of his plea, the prosecutor agreed not to pursue the death penalty. A three-judge panel accepted his plea, and he was immediately sentenced to a term of 20 full years to life imprisonment, plus three years of actual time for the firearm specification.
{4} On October 3, 1996, Melton filed a motion to withdraw his guilty plea, which the trial court denied. Melton filed a notice of appeal, which we denied for failure to file a record. Several years later, Melton filed a motion for a delayed appeal, which we denied.
{5} On October 4, 2006, Melton filed another motion to withdraw his guilty plea. The trial court denied the motion; Melton appealed to this court. The appeal was dismissed for failure to file the record. Thereafter, Melton attempted to file several delayed appeals, which this court denied.
{7} Several months later, Melton filed a motion requesting the trial court to enter a final, appealable order, contending his conviction was not a final, appealable order because the order did not set forth that he was guilty pursuant to the requirements of
{8} On April 14, 2009, the trial court entered a nunc pro tunc entry in which it corrected the sentence to “20 full years to life,” instead of “20 years to life” to reflect what had been ordered at the time of the hearing. The court also stated that it considered Melton‘s remaining claims as a petition for postconviction relief that was untimely filed and barred by res judicata.
{10} On March 4, 2011, the trial court issued an identical nunc pro tunc order signed by three judges. It is from that order that Melton files his instant appeal.
Failure to issue a Sentencing Opinion
{11} In his first assigned error, Melton argues the trial court erred by failing to issue a sentencing opinion in addition to his judgment of conviction as required pursuant to
{12} Melton relies on the Ohio Supreme Court‘s decision in State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, to support his argument. In Ketterer, the Supreme Court held that in death penalty cases, the final, appealable order consists of both the sentencing opinion filed pursuant to
{13} The instant case is distinguishable from Ketterer. In Ketterer, the
Trial Court‘s Failure to Enter a Finding of Guilt
{14} In his second assigned error, Melton argues that his judgment of conviction never became a final, appealable order because the judgment failed to set forth that the trial court found him guilty, before accepting his guilty plea, as required by
{15}
{16} We conclude that the court‘s recent decision in Lester does not bolster Melton‘s argument. In Lester, the Ohio Supreme Court modified its holding in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. In Baker, the Court held that a judgment of conviction pursuant to
{17} In Lester, the trial court listed the offenses for which Lester was convicted, but failed to indicate whether the conviction was the result of a guilty or no-contest plea, or trial. The trial court later issued a nunc pro tunc order including the fact the judgment was entered pursuant to a jury trial. Lester contended that his time for appeal ran from the nunc pro tunc entry because it was the only order that was final. In Lester, the Ohio Supreme Court disagreed, explaining that “the purpose of
{18} In the instant case, the trial court‘s failure to include the finding of guilt required by
{19} Melton‘s additional argument that the trial court failed to conduct a hearing to determine his guilt, prior to accepting his plea, is barred by res judicata. He raised this same argument in his previous appeal. Relying on the Ohio Supreme Court‘s opinion in Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, we concluded the alleged error was barred by res judicata as it was an error that could have been raised on
Res Judicata
{20} We will address Melton‘s third and fourth assigned errors together because they are both barred by res judicata.
{21} The doctrine of res judicata bars further litigation in a criminal case of issues that were raised previously or could have been raised previously in a direct appeal. State v. Reddy, Cuyahoga App. No. 95814, 2011-Ohio-2927, citing State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph nine of the syllabus. Melton‘s third assigned error is identical to an error he raised in his prior appeal in which we concluded res judicata applied. There is no basis to conclude otherwise in the instant appeal.
{22} In his fourth assigned error, Melton contends the trial court erred in imposing court costs in its journal entry because it failed to do so at his sentencing hearing. This was an issue that could have been raised on direct appeal; therefore, res judicata prevents our review of this error. Accordingly, Melton‘s third and fourth assigned errors are overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
COLLEEN CONWAY COONEY, J., DISSENTS (SEE ATTACHED DISSENTING OPINION)
COLLEEN CONWAY COONEY, J., DISSENTING:
{23} I respectfully dissent because I would dismiss the instant appeal pursuant to State v. Lester, Slip Opinion No. 2011-Ohio-5204, syllabus paragraph two, which states:
“2. A nunc pro tunc judgment entry issued for the sole purpose of complying with
Crim.R. 32(C) to correct a clerical omission in a final judgment entry is not a new final order from which a new appeal may be taken.”
{24} This court reviewed Melton‘s arguments in 2010 and remanded solely for the trial court to issue its nunc pro tunc order signed by three judges. As the majority correctly notes, that is the order now on appeal.
{25} I would dismiss this attempt to file another appeal and find no reasonable grounds existed to file the appeal.