[Cite as State v. Melton, 2018-Ohio-4699.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 107076



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                             ANDRE MELTON

                                                        DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                    Case No. CR-95-327341-ZA

        BEFORE: Boyle, J., E.A. Gallagher, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED: November 21, 2018
FOR APPELLANT

Andre Melton, pro se
Inmate No. 320659
Grafton Correctional Institution
2500 South Avon Belden Road
Grafton, Ohio 44044


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY J. BOYLE, J.:

       {¶1}    Defendant-appellant, Andre Melton, appeals the trial court’s denial of his motion

to vacate sentence. He raises one assignment of error for our review:

       The trial court erred by disregarding statutory sentencing when it sentenced the
       appellant to an unauthorized sentence of 20 full years to life for aggravated
       murder with capital spec., instead of [a] sentence required by law and statute;
       abused its discretion when it denied appellant’s motion to vacate unauthorized
       sentence. Accordingly, appellant’s sentence is contrary to law, void and illegal.

       {¶2}    Finding no merit to his appeal, we affirm.

I. Procedural History and Factual Background

       {¶3}    In February 1996, Melton pleaded guilty to aggravated murder with a mass

murder capital specification and a gun specification. As part of his plea, the prosecutor agreed

not to pursue the death penalty.     A three-judge panel accepted his plea and immediately
sentenced him to a “term of 20 years to life imprisonment consecutive to three years actual” for

the firearm specification.

       {¶4}    Nine months later, Melton moved to withdraw his guilty plea, which the trial

court denied. Melton filed a notice of appeal that we dismissed for failure to file a record.

Several years later, Melton filed a motion for a delayed appeal, which we denied.

       {¶5}    In October 2006, Melton moved to withdraw his guilty plea for a second time,

which the trial court also denied.   Melton appealed to this court.    We dismissed this appeal for

failure to file the record.   Subsequently, Melton moved for a delayed appeal on several more

occasions, which this court denied each time.

       {¶6}    On April 10, 2007, Melton filed a “Memorandum Regarding Sentencing,” where

he argued that he was not found guilty of a capital specification, so a “sentence of life with

twenty full years is not available.”        This motion was in response to the department of

rehabilitation and correction’s request that the trial court correct the sentencing entry to reflect a

sentence of “twenty full years to life” versus “twenty years to life.” At his original sentencing

hearing, the trial court orally sentenced Melton to “twenty full years to life,” which, at that time,

was the minimum sentence available under R.C. 2929.03, the statute that sets forth possible

sentences for aggravated murder. Melton also asserted that the trial court was without authority

to change the sentence because he did not waive his right to a jury trial and because such change

would render his guilty plea involuntary.

       {¶7}    Several months later, Melton filed a motion requesting the trial court to enter a

final appealable order, arguing that his conviction was not a final appealable order because the

trial court did not set forth in the judgment that he was guilty pursuant to the requirements of

Crim.R. 32(C).
        {¶8}     On April 14, 2009, the trial court entered a nunc pro tunc entry correcting

Melton’s sentence to “20 full years to life, which is consecutive to the [three] year actual” instead

of “20 years to life imprisonment consecutive to three years actual” to reflect what it had orally

ordered at the time of the original sentencing hearing.         The court also stated that it considered

Melton’s remaining claims as a petition for postconviction relief that was untimely and barred by

res judicata.

        {¶9}     Melton appealed the trial court’s nunc pro tunc entry, raising six assignments of

error. We held that all but one of them were barred by res judicata. See State v. Melton, 8th

Dist. Cuyahoga No. 93299, 2010-Ohio-4476, ¶ 14, 18, and 27-29. We found merit, in part, to

his argument that because his original conviction was entered by a three-judge panel, the court

could not issue a nunc pro tunc entry signed by one judge. We remanded the matter for the trial

court to issue a nunc pro tunc order signed by a three-judge panel. Id. at ¶ 25.

        {¶10} On March 4, 2011, the trial court issued an identical nunc pro tunc order, but this

time it was signed by three judges.       Melton appealed that order as well.

        {¶11} Again, he raised many of the same arguments that he had previously raised. We

overruled his assigned errors and affirmed the judgment of the trial court. See State v. Melton,

8th Dist. Cuyahoga No. 96621, 2011-Ohio-5929, ¶ 22.

        {¶12} In December 2017, Melton filed a motion to “Vacate Unauthorized Sentence,”

which the trial court denied.    It is from this judgment that Melton now appeals.

  II. Analysis

        {¶13} Melton argues that the trial court erred when it denied his motion to vacate his

“unauthorized     sentence”     because     it   “disregarded   statutory sentencing” requirements.

Specifically, Melton contends that his sentence is contrary to law because the trial court imposed
a sentence of “‘20 full years to life’ on the aggravated murder count instead of a sentence of ‘life

imprisonment with parole eligibility after serving twenty full years of imprisonment.’”

       {¶14} The state, however, maintains that this court already considered and affirmed

Melton’s sentence in Melton, 8th Dist. Cuyahoga No. 96621, 2011-Ohio-5929. Thus, the state

is essentially arguing that this court cannot address Melton’s argument because it is barred by res

judicata.

       {¶15} Generally, “if the sentencing court had jurisdiction and statutory authority to act,

sentencing errors do not render the sentence void and the sentence can be set aside only if

successfully challenged on direct appeal.”            State v. Williams, 148 Ohio St.3d 403,

2016-Ohio-7658, 71 N.E.3d 234, ¶ 23, citing State v. Fischer, 128 Ohio St.3d 92,

2010-Ohio-6238, 942 N.E.2d 332. But “‘[n]o court has the authority to impose a sentence that

is contrary to law.’” Id. at ¶ 22, quoting Fischer.

       {¶16} The Ohio Supreme Court explained in Fischer that “[j]udges are duty-bound to

apply sentencing laws as they are written.” Id. at ¶ 22, citing State v. Thomas, 111 Ohio App.3d

510, 676 N.E.2d 903 (8th Dist.1996).          The Fischer court further reiterated, “‘[T]he only

sentence which a trial court may impose is that provided for by statute. A court has no power to

substitute a different sentence for that provided for by statute or one that is either greater or lesser

than that provided for by law.’” Id., quoting Colegrove v. Burns, 175 Ohio St. 437, 195 N.E.2d

811 (1964).

       {¶17} Therefore, when a trial court “disregards statutory mandates, ‘[p]rinciples of res

judicata, including the doctrine of the law of the case, do not preclude appellate review. The

sentence may be reviewed at any time, on direct appeal or by collateral attack.’” Williams at ¶

22, quoting Fischer.
       {¶18} In support of his argument that his sentence is contrary to law, Melton relies on this

court’s decision in State v. Kemp, 8th Dist. Cuyahoga No. 97913, 2013-Ohio-167, which was a

direct appeal, and    State v. Duncan, 2d Dist. Clark No. 2016-CA-77, 2017-Ohio-8103, a

decision from the Second District applying Kemp to a postconviction appeal. In Kemp, the

defendant was convicted of murder in violation of R.C. 2903.02(A) and sentenced in January

2012 to “[l]ife in prison with eligibility of parole after 15 years.” The relevant statute in effect

at that time, R.C. 2929.02(B)(1), provided “whoever is convicted of or pleads guilty to murder in

violation of section 2903.02 of the Revised Code shall be imprisoned for an indefinite term of

fifteen years to life.” This court agreed with Kemp that his sentence was contrary to law, and

thus, we vacated his sentence and remanded for resentencing. Kemp at ¶ 76.

       {¶19} In Duncan, the defendant filed a motion in 2016 to vacate his 2006 sentence for

felony murder relying on our holding in Kemp and arguing that the trial court “entered a sentence

not provided for by statute thereby rendering the sentence void.”      Id. at ¶ 4. Duncan argued

that his sentence, “life with the possibility of parole after fifteen (15) years” was contrary to law

because the relevant sentencing statute, R.C. 2903.02(B), provided that “whoever is convicted of

or pleads guilty to murder in violation of section 2903.02 of the Revised Code shall be

imprisoned for an indefinite term of fifteen years to life.” Duncan at ¶ 7.

       {¶20} The Second District stated:

               Kemp, supra, involved a direct appeal, whereas we are dealing with a
       sentence that is more than a decade old. But, Duncan argues that his sentence is
       void, and therefore, subject to attack at any time. Thus, we must determine
       whether the sentence imposed by the trial court, and described by the Eighth
       District Court of Appeals in Kemp as contrary to law, is void or is merely a type of
       sentencing error that may only be challenged on direct appeal.

Duncan at ¶ 9.

       {¶21} After setting forth the standard of review, the Second District agreed with Duncan
that his sentence was contrary to law. It reasoned:

                “When construing a statute, [a reviewing] court’s paramount concern is
        the legislative intent in enacting the statute.” Yonkings v. Wilkinson, 86 Ohio
        St.3d 225, 227, 1999-Ohio-98, 714 N.E.2d 394 (1999), citing State v. S.R., 63
        Ohio St.3d 590, 594, 589 N.E.2d 1319 (1992). “Furthermore, ‘words must be
        taken in their usual, normal or customary meaning.’” Id., quoting S.R. “A
        ‘definite’ sentence is just what its name implies: a specific number of years of
        imprisonment rather than a range defined by minimum and maximum terms.
        Referring to a minimum or maximum term of imprisonment makes sense only
        when speaking of an indefinite sentence.” Id.

                We reject the state’s argument that the sentence imposed has no practical
        consequence because it has the same outcome for purposes of parole. Regardless
        of whether the two sentences permit parole at the same time, they are two
        different sentences. One is set forth by statute, the other is not. The trial court
        converted an indefinite sentence required by statute into a de facto definite
        sentence. Thus, we conclude that the trial court exceeded its authority in
        sentencing, rendering void the sentence imposed.

Id. at ¶ 13-14.

        {¶22} Here, Melton was sentenced under former R.C. 2929.03(C)(2), which provided in

pertinent part:

        (2) If the indictment or count in the indictment contains one or more

        specifications of aggravating circumstances listed in division (A) of section

        2929.04 of the Revised Code, and if the offender is found guilty of both the

        charge and one or more of the specifications, the penalty to be imposed on the

        offender shall be death, life imprisonment with parole eligibility after serving

        twenty full years of imprisonment, or life imprisonment with parole eligibility

        after serving thirty full years of imprisonment[.]

(Emphasis added.)

        {¶23} In both Kemp and Duncan, the defendants were sentenced to life in prison with the

possibility of parole after 15 years, when they should have been sentenced to “an indefinite term
of 15 years to life.” Here, however, it is the reverse:   Melton was sentenced to “20 full years to

life” when the statute required that he be sentenced to “life imprisonment with parole eligibility

after serving twenty full years of imprisonment.”

       {¶24} After review, we find Kemp and Duncan to be distinguishable from the present

case. Melton was sentenced under pre-S.B. 2 law. He was sentenced to an indefinite sentence

of “20 full years to life in prison.” Although not the exact wording of the statute, the trial court

did not convert a “de facto definite sentence” into an indefinite sentence — as it did in Kemp and

Duncan — because Melton’s sentence was already an indefinite sentence. Accordingly, we find

that Melton’s sentence is not contrary to law, and we are therefore barred by res judicata from

addressing it.

       {¶25} Judgment affirmed.

       It is ordered that appellee recover from appellant the 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

EILEEN A. GALLAGHER, A.J., and
MELODY J. STEWART, J., CONCUR
