Opinion
No. 109199
03-17-2021
STATE OF OHIO, Plaintiff-Appellee, v. ESTARLING MELENDEZ, Defendant-Appellant.
Appearances: Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Tasha Forchione, Assistant Prosecuting Attorney, for appellee. Estarling Melendez, pro se.
JOURNAL ENTRY AND OPINION JUDGMENT: APPLICATION DENIED Cuyahoga County Court of Common Pleas
Case Nos. CR-03-436652-ZA and CR-03-436653-A
Application for Reopening
Motion No. 544713
Appearances:
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Tasha Forchione, Assistant Prosecuting Attorney, for appellee. Estarling Melendez, pro se. MICHELLE J. SHEEHAN, J.:
{¶ 1} Applicant, Estarling Melendez, seeks to reopen his appeal, regarding the denial of his motion to withdraw a guilty plea, State v. Melendez, 8th Dist. Cuyahoga No. 109199, 2020-Ohio-6736. He claims appellate counsel was ineffective. However, because an application for reopening only applies to an appeal from a judgment of a conviction and sentence, not a postconviction collateral attack on a plea, the application is denied.
Statement of the Case and Facts
{¶ 2} In 2003, Melendez pleaded guilty to murder and received a sentence of 15 years to life. The sentencing journal entry indicates that the trial court imposed postrelease control on the indefinite sentence, even though an indefinite sentence is subject to parole, not postrelease control. No appeal of this conviction was taken at that time.
{¶ 3} In 2018, Melendez filed a motion to correct his "facially illegal sentence." As a result of this motion, the trial court held a resentencing hearing. Melendez attempted to orally withdraw his guilty plea entered in 2003, but the court limited the hearing to the issues raised in the motion to correct the "facially illegal sentence." The court resentenced Melendez, and he appealed the resentencing order. This court affirmed the sentence that was imposed at the 2018 resentencing hearing. State v. Melendez, 8th Dist. Cuyahoga No. 106994, 2019-Ohio-533 ("Melendez I"). This court also rejected arguments that Melendez should have been allowed to withdraw his guilty plea. Id. at ¶ 9-13.
{¶ 4} After this court's decision in Melendez I was released, Melendez filed a motion to withdraw his guilty plea on October 11, 2019. This motion was denied by the trial court on October 24, 2019, and he perfected an appeal challenging that decision. Melendez, 8th Dist. Cuyahoga No. 109199, 2020-Ohio-6736 ("Melendez II"). In Melendez II, he assigned the following errors:
I. Appellant should have been permitted to withdraw his guilty plea since it was not knowingly and intelligently made due to misrepresentations of law made by the trial court at the time of the acceptance of the plea.
II. The Appellant's expectation in the finality of his sentence mandates his immediate release from incarceration.
{¶ 5} In a decision issued on December 17, 2020, this court overruled these assignments of error and affirmed the trial court's decision denying the motion to withdraw his guilty plea. Id. at ¶ 16-17.
{¶ 6} On March 4, 2021, Melendez timely filed the instant application. The reasons he claims appellate counsel was ineffective are not exactly clear from the application, but he appears to assert two proposed assignments of error. First, Melendez asserts "Appellant [sic] counsel failed to render effective assistance of counsel at critical stages at appellant's appeal from his Criminal Rule 32.1 motion to withdraw of [sic] his plea in violation of constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution." Melendez raises arguments regarding a second issue: "Appellant [sic] counsel erred in arguing in his appellant's brief 'Second Assignment of error * * * * That'. [sic] 'The Appellant's expectation in the finality of his sentence mandates his immediate release from incarceration.'" This proposed assignment of error goes on to argue that appellate counsel raised a losing argument when he should have raised any number of other winning arguments.
Law and Analysis
{¶ 7} An application for reopening governed by App.R. 26(B) offers a criminal defendant with a limited means to assert a claim of ineffective assistance of counsel on direct appeal. State v. Barnes, 8th Dist. Cuyahoga Nos. 108857, 108858, and 109321, 2020-Ohio-4988. The rule only applies to appeals from "the judgment of conviction and sentence." App.R. 26(B)(1).
{¶ 8} The present application seeks to reopen an appeal from the denial of a motion to withdraw a guilty plea. This postconviction collateral attack does not constitute an appeal of the conviction and sentence. State v. Loomer, 76 Ohio St.3d 398, 667 N.E.2d 1209 (1996). In Loomer, the Supreme Court of Ohio affirmed the denial of an application to reopen an appeal involving a motion to dismiss. The court found that such an appeal did not involve an appeal from "the judgment of conviction and sentence." Id. at 398.
{¶ 9} This court applied the same reasoning to motions to withdraw a guilty plea in State v. Smith, 8th Dist. Cuyahoga Nos. 84687, 84688, and 84689, 2005-Ohio-2711, ¶ 6. In Smith, this court was confronted with an application to reopen an appeal from the denial of a motion to withdraw a guilty plea. This court denied the application because, among other reasons, App.R. 26(B) was inapplicable to an appeal of the denial of such a motion. Id. See also State v. Gilbert, 8th Dist. Cuyahoga No. 106358, 2019-Ohio-1117; State v. Smith, 8th Dist. Cuyahoga No. 104263, 2017-Ohio-8399; and State v. Bush, 7th Dist. Mahoning No. 18 MA 0105, 2020-Ohio-1147.
Conclusion
{¶ 10} Melendez's claims of ineffective assistance of appellate counsel may not be addressed in the instant application because App.R. 26(B) is inapplicable. The present application is a collateral attack on his conviction, not an appeal from the conviction and sentence entered in this case. Therefore, Melendez's application for reopening is denied.
Resolving every doubt in Melendez's favor, the appeal of his conviction and sentence occurred in Melendez I, where he appealed from his 2018 resentencing.
{¶ 11} Application denied. /s/_________
MICHELLE J. SHEEHAN, JUDGE EILEEN T. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR