[Cite as State v. Melendez, 2019-Ohio-533.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106994
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ESTARLING MELENDEZ
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-03-436652-ZA
BEFORE: Keough, J., Kilbane, A.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: February 14, 2019 ATTORNEY FOR APPELLANT
Donald M. Gallick The Law Offices of Donald Gallick 190 North Union Street, #102 Akron, Ohio 44304
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor By: Frank Romeo Zeleznikar Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Estarling Melendez, appeals the trial court’s decision denying
his request to make an oral presentence motion to withdraw his guilty plea during a resentencing
hearing. For the following reasons, we affirm.
{¶2} In 2003, Melendez pleaded guilty to murder and was sentenced to “15 years to life in
prison,” and a five-year term of postrelease control. On the same date, he was also sentenced on
an unrelated case where he pleaded guilty to robbery. Melendez did not appeal his convictions.
{¶3} In January 2018, Melendez filed a motion “to correct the facially illegal sentence,”
contending that pursuant to this court’s decision in State v. Kemp, 8th Dist. Cuyahoga No. 97913,
2013-Ohio-167, he should have been sentenced to “an indefinite term of fifteen years to life.”
He also maintained that the imposition of postrelease control was improper. Despite the
arguments raised, the motion did not contain any argument that his plea was invalid. Melendez requested that the court appoint him counsel, conduct a hearing, and reenter judgment and
sentence.
{¶4} The state agreed with Melendez that he would not be subject to postrelease control
for murder, an unclassified felony, and that R.C. 2929.02(B)(1) requires the imposition of a
mandatory sentence of “an indefinite term of 15 years to life.”
{¶5} The trial court held a hearing on Melendez’s motion. The parties agreed that the
motion should be granted, and the state maintained that Melendez’s sentence should be corrected
to include that the sentence is “an indefinite term of 15 years to life” and to remove the term of
postrelease control.
{¶6} During the hearing, however, Melendez’s appointed counsel notified the court that
Melendez wanted to vacate his plea because the penalty notifications rendered his plea “null and
void.” (Tr. 4.) Counsel advised the court that he was not prepared to argue the merits of
Melendez’s oral motion to withdraw his plea because the purpose of the hearing was to consider
the motion to correct the sentence. Melendez stated to the court that, as part of his plea
agreement, he was advised he could receive postrelease control after serving 15 years in prison.
The state agreed that the imposition of postrelease control on the murder offense was in error and
that Melendez had already served his entire sentence on the unrelated robbery offense, and was
thus not subject to any term of postrelease control.
{¶7} The trial court declined to entertain any argument regarding Melendez’s oral motion
to withdraw his plea because the purpose of the hearing was to decide the motion to correct the
illegal sentence, which the court granted. The court advised Melendez that if he wished to
withdraw his plea, he should file a motion following the hearing. After receiving brief comments
from defense counsel and the state, the trial court imposed the mandatory sentence of “an indefinite term of 15 years to life” on the murder offense. The court noted that any reference to
the term of postrelease control in the original sentencing entry would be deleted.
{¶8} Melendez now appeals, raising three assignments of error.
I. Withdraw of Guilty Plea
{¶9} In his first assignment of error, Melendez contends that he suffered a denial of
procedural due process under the Fifth and Fourteenth Amendments to the U.S. Constitution and
Article I of the Ohio Constitution when the trial court refused to allow him to make, and argue in
favor of, an oral motion to withdraw a presentence guilty plea. The state contends that
Melendez’s motion was a postsentence motion because the sentencing hearing was not de novo,
but merely a limited resentencing to correct a “flawed sentence.”
{¶10} Crim.R. 32.1 permits a defendant to move to withdraw his plea at any time prior to
sentencing; but to correct a manifest injustice after sentencing, the court may set aside the
judgment of conviction and permit the defendant to withdraw his plea.
{¶11} Although the trial court did not consider the merits of Melendez’s oral motion to
withdraw his plea, we can glean from the record that Melendez sought to withdraw his plea based
on the erroneous advisement that he would be subject to postrelease control if and when he was
released from prison. Melendez stated:
Because part of my plea agreement — my plea bargain was part of — with the Court was that I was supposed to get post-release [sic] control for all my cases, right, with the murder — whatever. That was part of the plea agreement. The Judge did what she did right and sentenced me to life term on that, right. That was part of my plea agreement was post-release [sic] control.
(Tr. 7-8.)
{¶12} A motion to withdraw a guilty plea is treated as a postsentence motion under
Crim.R. 32.1 when the motion attacks the failure to comply with statutory requirements regarding the imposition of postrelease control. State v. Skipworth, 8th Dist. Cuyahoga No.
103701, 2016-Ohio-3069; State v. Rogers, 8th Dist. Cuyahoga No. 99246, 2013-Ohio-3246, ¶ 24.
Therefore, Melendez’s oral motion to withdraw his guilty plea is a postsentence motion where
Melendez must demonstrate that a manifest injustice occurred that warrants the withdrawal of his
plea. This burden is the same whether the court would have considered his oral motion or a
subsequent written motion filed on a later date. See State v. Temp, 8th Dist. Cuyahoga
No.101265, 2014-Ohio-4934 (Crim.R. 32.1 does not prescribe a time limitation for filing a
postsentence motion to withdraw a plea.). Because the trial court stated it would consider
Melendez’s motion if he filed it after the hearing, Melendez cannot demonstrate that was
prejudiced by the trial court’s decision not to consider his oral motion to withdraw his plea
during the hearing on his pro se motion to correct an illegal sentence.
{¶13} The assignment of error is overruled.
II. Effective Assistance of Counsel
{¶14} In his second assignment of error, Melendez contends that his counsel was
ineffective for failing to (1) seek a continuance to file a written motion to withdraw the guilty
plea before sentencing, and (2) object to the trial court’s decision to not allow the motion to
withdraw until after resentencing.
{¶15} As previously determined, Melendez’s oral motion to withdraw his plea was a
postsentence motion. A defendant does not have a right of counsel regarding a postsentence
motion to withdraw a guilty plea. State v. Meadows, 6th Dist. Lucas L-05-1321,
2006-Ohio-2622.
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[Cite as State v. Melendez, 2019-Ohio-533.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 106994
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ESTARLING MELENDEZ
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-03-436652-ZA
BEFORE: Keough, J., Kilbane, A.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: February 14, 2019 ATTORNEY FOR APPELLANT
Donald M. Gallick The Law Offices of Donald Gallick 190 North Union Street, #102 Akron, Ohio 44304
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor By: Frank Romeo Zeleznikar Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:
{¶1} Defendant-appellant, Estarling Melendez, appeals the trial court’s decision denying
his request to make an oral presentence motion to withdraw his guilty plea during a resentencing
hearing. For the following reasons, we affirm.
{¶2} In 2003, Melendez pleaded guilty to murder and was sentenced to “15 years to life in
prison,” and a five-year term of postrelease control. On the same date, he was also sentenced on
an unrelated case where he pleaded guilty to robbery. Melendez did not appeal his convictions.
{¶3} In January 2018, Melendez filed a motion “to correct the facially illegal sentence,”
contending that pursuant to this court’s decision in State v. Kemp, 8th Dist. Cuyahoga No. 97913,
2013-Ohio-167, he should have been sentenced to “an indefinite term of fifteen years to life.”
He also maintained that the imposition of postrelease control was improper. Despite the
arguments raised, the motion did not contain any argument that his plea was invalid. Melendez requested that the court appoint him counsel, conduct a hearing, and reenter judgment and
sentence.
{¶4} The state agreed with Melendez that he would not be subject to postrelease control
for murder, an unclassified felony, and that R.C. 2929.02(B)(1) requires the imposition of a
mandatory sentence of “an indefinite term of 15 years to life.”
{¶5} The trial court held a hearing on Melendez’s motion. The parties agreed that the
motion should be granted, and the state maintained that Melendez’s sentence should be corrected
to include that the sentence is “an indefinite term of 15 years to life” and to remove the term of
postrelease control.
{¶6} During the hearing, however, Melendez’s appointed counsel notified the court that
Melendez wanted to vacate his plea because the penalty notifications rendered his plea “null and
void.” (Tr. 4.) Counsel advised the court that he was not prepared to argue the merits of
Melendez’s oral motion to withdraw his plea because the purpose of the hearing was to consider
the motion to correct the sentence. Melendez stated to the court that, as part of his plea
agreement, he was advised he could receive postrelease control after serving 15 years in prison.
The state agreed that the imposition of postrelease control on the murder offense was in error and
that Melendez had already served his entire sentence on the unrelated robbery offense, and was
thus not subject to any term of postrelease control.
{¶7} The trial court declined to entertain any argument regarding Melendez’s oral motion
to withdraw his plea because the purpose of the hearing was to decide the motion to correct the
illegal sentence, which the court granted. The court advised Melendez that if he wished to
withdraw his plea, he should file a motion following the hearing. After receiving brief comments
from defense counsel and the state, the trial court imposed the mandatory sentence of “an indefinite term of 15 years to life” on the murder offense. The court noted that any reference to
the term of postrelease control in the original sentencing entry would be deleted.
{¶8} Melendez now appeals, raising three assignments of error.
I. Withdraw of Guilty Plea
{¶9} In his first assignment of error, Melendez contends that he suffered a denial of
procedural due process under the Fifth and Fourteenth Amendments to the U.S. Constitution and
Article I of the Ohio Constitution when the trial court refused to allow him to make, and argue in
favor of, an oral motion to withdraw a presentence guilty plea. The state contends that
Melendez’s motion was a postsentence motion because the sentencing hearing was not de novo,
but merely a limited resentencing to correct a “flawed sentence.”
{¶10} Crim.R. 32.1 permits a defendant to move to withdraw his plea at any time prior to
sentencing; but to correct a manifest injustice after sentencing, the court may set aside the
judgment of conviction and permit the defendant to withdraw his plea.
{¶11} Although the trial court did not consider the merits of Melendez’s oral motion to
withdraw his plea, we can glean from the record that Melendez sought to withdraw his plea based
on the erroneous advisement that he would be subject to postrelease control if and when he was
released from prison. Melendez stated:
Because part of my plea agreement — my plea bargain was part of — with the Court was that I was supposed to get post-release [sic] control for all my cases, right, with the murder — whatever. That was part of the plea agreement. The Judge did what she did right and sentenced me to life term on that, right. That was part of my plea agreement was post-release [sic] control.
(Tr. 7-8.)
{¶12} A motion to withdraw a guilty plea is treated as a postsentence motion under
Crim.R. 32.1 when the motion attacks the failure to comply with statutory requirements regarding the imposition of postrelease control. State v. Skipworth, 8th Dist. Cuyahoga No.
103701, 2016-Ohio-3069; State v. Rogers, 8th Dist. Cuyahoga No. 99246, 2013-Ohio-3246, ¶ 24.
Therefore, Melendez’s oral motion to withdraw his guilty plea is a postsentence motion where
Melendez must demonstrate that a manifest injustice occurred that warrants the withdrawal of his
plea. This burden is the same whether the court would have considered his oral motion or a
subsequent written motion filed on a later date. See State v. Temp, 8th Dist. Cuyahoga
No.101265, 2014-Ohio-4934 (Crim.R. 32.1 does not prescribe a time limitation for filing a
postsentence motion to withdraw a plea.). Because the trial court stated it would consider
Melendez’s motion if he filed it after the hearing, Melendez cannot demonstrate that was
prejudiced by the trial court’s decision not to consider his oral motion to withdraw his plea
during the hearing on his pro se motion to correct an illegal sentence.
{¶13} The assignment of error is overruled.
II. Effective Assistance of Counsel
{¶14} In his second assignment of error, Melendez contends that his counsel was
ineffective for failing to (1) seek a continuance to file a written motion to withdraw the guilty
plea before sentencing, and (2) object to the trial court’s decision to not allow the motion to
withdraw until after resentencing.
{¶15} As previously determined, Melendez’s oral motion to withdraw his plea was a
postsentence motion. A defendant does not have a right of counsel regarding a postsentence
motion to withdraw a guilty plea. State v. Meadows, 6th Dist. Lucas L-05-1321,
2006-Ohio-2622. Accordingly, because Melendez did not have a constitutional right to counsel, he cannot be deprived of effective assistance of counsel. See, e.g., State v. Carter, 93 Ohio
St.3d 581, 582, 757 N.E.2d 362 (2001).
{¶16} The second assignment of error is overruled.
III. Right of Allocution
{¶17} Melendez contends in his third assignment of error that the trial court violated
Crim.R. 32(A) when it did not offer him the right of allocution.
{¶18} Crim.R. 32(A)(1) provides that, at the time of imposing sentence, the trial court
shall, “[a]fford counsel an opportunity to speak on behalf of the defendant and address the
defendant personally and ask if he or she wishes to make a statement in his or her own behalf or
present any information in mitigation of punishment.”
{¶19} However, the trial court’s failure to address the defendant is not prejudicial in
every case. State v. Campbell, 90 Ohio St.3d 320, 325, 738 N.E.2d 1178 (2000). In Campbell,
the Ohio Supreme Court held that “[i]n a case in which the trial court has imposed sentence
without first asking the defendant whether he or she wishes to exercise the right of allocution
created by Crim.R. 32(A), resentencing is required unless the error is invited error or harmless
error.” Id. at paragraph three of the syllabus; see also State v. Gumins, 8th Dist. Cuyahoga No.
90447, 2008-Ohio-4238.
{¶20} In considering whether an error is harmless, this court must determine whether the
error “affect[ed] substantial rights” of the defendant, meaning that the error affected the outcome
of the trial court proceedings causing prejudice to the defendant. State v. Fisher, 99 Ohio St.3d
127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, citing United States v. Olano, 507 U.S. 725, 734,
113 S.Ct. 1770, 123 L.E.2d 508 (1993). {¶21} In this case, the trial court asked defense counsel “what [he] would like to say on
behalf of your client * * * with regard to sentencing.” Counsel responded briefly, stating “we
already stated what —,” and then agreeing with the trial court regarding what the appropriate
sentence would be based on the actual conviction. (Tr. 10.) Although the trial court did not
personally address Melendez at this time, Melendez has not demonstrated how he was prejudiced
by the trial court’s failure to specifically inquire of him whether he had anything to say in his
defense. The only sentence the court could impose for a conviction of murder in violation of
R.C. 2929.02(B)(1) was an indefinite 15 years to life sentence. The sentence was statutory, and
no judicial discretion was involved in imposing this sentence. Accordingly, any error by the
trial court in not affording Melendez the right of allocution was harmless. Moreover, we note
that during his original sentencing in 2003, Melendez was afforded the right of allocution where
he apologized for committing the crimes.
{¶22} Melendez’s third assignment of error is overruled.
{¶23} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure. KATHLEEN ANN KEOUGH, JUDGE
ANITA LASTER MAYS, J., CONCURS; MARY EILEEN KILBANE, A.J., DISSENTS WITH SEPARATE OPINION
MARY EILEEN KILBANE, A.J., DISSENTING:
{¶24} I respectfully dissent. I would find that Melendez was deprived of his right to
allocution.
{¶25} A review of the resentencing transcript reveals that the trial court asked defense
counsel if he wanted to speak prior to sentencing, and then stopped counsel, asking if he knew
what the sentence would be based on the actual conviction. At no point did the trial court
personally ask Melendez if he wanted to speak prior to the imposition of sentence. Immediately
after the trial court imposed the sentence, Melendez asked, “[c]an I say something” to which the
court replied, “[n]o.”
{¶26} While there was no judicial discretion involved in the imposition of Melendez’s
sentence, the record is clear that the court interrupted defense counsel, did not personally address
Melendez, and did not give him any opportunity to speak. “[A] judge must ‘painstakingly’
guarantee the right of allocution at sentencing because it is ‘much more than an empty ritual: it
represents a defendant’s last opportunity to plead his case or express remorse.’” State v.
Sanders, 8th Dist. Cuyahoga No. 81450, 2003-Ohio-1163, ¶ 13, quoting State v. Green, 90 Ohio
St.3d 359-360, 2000-Ohio-182, 738 N.E.2d 1208.
{¶27} In light of the foregoing, I would sustain the third assignment of error, finding that
Melendez was not afforded the right of allocution at his resentencing and there are no factors
warranting harmless error. State v. King, 8th Dist. Cuyahoga No. 95972, 2011-Ohio-3985, ¶ 8.