Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No.
CR-03-436652-ZA Application for Reopening Motion No. 528072
Michael C. O'Malley, Cuyahoga County Prosecutor, and
Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for
Estarling Melendez, pro se.
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, J.
1} Estarling Melendez seeks to reopen his appeal,
State v. Melendez, 8th Dist. Cuyahoga No. 106994,
2019-Ohio-533, claiming that appellate counsel was
ineffective for not arguing that trial counsel was
ineffective during a resentencing hearing held by the trial
court. We deny the application.
2} In 2003, Melendez pled guilty to a single count
of murder, for which he received a prison sentence of 15
years to life. According to the sentencing entry memoralizing
this sentence, the court also imposed a five-year term of
postrelease control. Melendez did not file a direct appeal
challenging his conviction.
3} In 2018, the trial court held a hearing that was
prompted by a motion Melendez filed seeking "to correct
the facially illegal sentence." At the hearing, where
Melendez was represented by counsel, the trial court removed
the improperly imposed period of postrelease control and
reworded the imposition of sentence to track the language of
the appropriate sentencing statute to state an indefinite
sentence of 15 years to life. The court issued a new
sentencing entry reflecting these changes.
4} Melendez appealed, raising three assignments of
error. He argued that (1) the court erred in not allowing him
to argue an oral motion to withdraw his plea, (2) trial
counsel was ineffective for not seeking a continuance to file
a written motion or objecting to the trial court's
decision denying Melendez the ability to argue the oral
motion, and (3) the trial court denied him his right of
allocution Melendez, 8th Dist. Cuyahoga No. 106994,
2019-Ohio-533. This court overruled these assigned errors and
affirmed his convictions. Id. at ¶ 23.
5} Melendez then timely filed an application for
reopening, asserting a single proposed assignment of error
arguing that "trial counsel failed to render effective
assistance of counsel at appellant's resentencing in
violation of his constitutional rights under the Sixth and
Fourteenth Amendments to the United States
Ineffective Assistance of Appellate Counsel
6} App.R. 26(B) provides a limited opportunity to
reopen a direct appeal based on ineffective assistance of
appellate counsel. Ineffective assistance of appellate
counsel is reviewed using the same standard applicable to
ineffective assistance of trial counsel set forth in
Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). The applicant must prove
that counsel's conduct fell below an objective standard
of reasonableness and that prejudice resulted. Prejudice can
be established by showing there was a reasonable probability
the results would have been different. State v.
Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699,
¶ 10-11. The applicant must show that counsel was
deficient for failing to raise the proposed issues presented
in the application and that there was a reasonable
probability of success had he presented those claims on
appeal. Id. at ¶ 11, citing State v.
Sheppard, 91 Ohio St.3d 329, 330, 744 N.E.2d 770 (2001).
This means the appellant bears the burden of demonstrating
that there is a "genuine issue" as to whether he
has a "colorable claim" of ineffective assistance
of appellate counsel. State v. Spivey, 84 Ohio St.3d
24, 25, 701 N.E.2d 696 (1998).
7} In support of his claim of ineffective assistance
of appellate counsel, Melendez claims that the question at
whether trial counsel made reasonable attempts to review
Melendez's 2003 plea and sentencing transcript to
determine whether he was induced to enter into a plea
agreement sentence that was unlawful on its face, and whether
counsel had a constitutional duty to bring the void plea
agreement to the attention of the trial court judge before
the court ...