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State v. Melhado

Court of Appeals of Ohio, Tenth District

August 15, 2013

State of Ohio, Plaintiff-Appellee,
v.
Clive N. Melhado, Defendant-Appellant.

APPEAL from the Franklin County Court of Common Pleas, C.P.C. No. 01CR-06-3599

Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for appellee.

Clive N. Melhado, pro se.

DECISION

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 R.C. 2903.01, and one count of aggravated robbery, in violation of R.C. 2911.01. A firearm specification was also included on each count. A jury found appellant guilty on one count of the lesser-included offense of murder, one count of aggravated murder with specification, and one count of aggravated robbery. Appellant was also found guilty on each firearm specification.

(¶ 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 R.C. 2903.01 when the jury acquitted him on the first count for aggravated murder in violation of R.C. 2903.02 and instead found him guilty of the lesser-included offense of murder in violation of R.C. 2903.01. The trial court found that appellant's petition was untimely and that res judicata barred appellant's petition because the claims either were raised or should have been raised on direct appeal. Additionally, the trial court denied appellant's request for an evidentiary hearing because the trial court found that the evidentiary documentation lacked credibility. Consequently, the trial court dismissed the petition. This court affirmed in State v. Melhado, 10th Dist. No. 05AP-272, 2006-Ohio-641, and the Supreme Court of Ohio denied review in State v. Melhado, 110 Ohio St.3d 1443, 2006-Ohio-3862.

(¶ 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 trial court's judgment, but the appeal was dismissed due to appellant's failure to file a brief.

(¶ 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 ...


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