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State v. Melendez

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 4, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
ESTARLING MELENDEZ, Defendant-Appellant.

          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 appellee.

          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 Constitution."

         I. 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 issue is

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 ...

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