The opinion
[Cite as State v. Melhado, 2016-Ohio-3346.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-960
v. : (C.P.C. No. 01CR06-3599)
Clive N. Melhado, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 9, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
Taylor, for appellee.
On brief: Clive N. Melhado, pro se.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Clive N. Melhado, appeals from a judgment of the
Franklin County Court of Common Pleas denying his "Motion for Discharge from
Custody." For the following reasons, we affirm that judgment.
I. Factual and Procedural Background
{¶ 2} In 2001, appellant was indicted for two counts of aggravated murder in
violation of R.C. 2903.01 and one count of aggravated robbery in violation of R.C. 2911.01.
A jury found appellant guilty on the first count of the lesser-included offense of murder in
violation of R.C. 2903.02, and guilty on the second count of aggravated murder and of
aggravated robbery. At sentencing, the trial court merged the murder and aggravated
murder convictions and sentenced appellant to a term of life imprisonment without
No. 15AP-960 2
possibility of parole for the aggravated murder conviction. The trial court imposed a
concurrent eight-year sentence on the aggravated robbery conviction.1 Appellant
appealed to this court and argued that his convictions were not supported by sufficient
evidence and were against the manifest weight of the evidence, that he received ineffective
assistance of counsel, and that the sentencing scheme in R.C. 2929.03 is unconstitutional.
This court rejected appellant's arguments and affirmed his convictions and sentence.
State v. Melhado, 10th Dist. No. 02AP-458, 2003-Ohio-4763.
{¶ 3} In a 2010 motion to vacate a void judgment, appellant argued that the trial
court failed to properly impose post-release control ("PRC") for his aggravated robbery
conviction. The trial court rejected that argument and denied the motion. This court
dismissed appellant's attempt to appeal that judgment because he did not timely file his
appellate brief. In 2012, appellant filed another motion to vacate in which he again
argued that the trial court failed to properly impose PRC. The trial court again rejected
the argument, noting that it had already addressed and rejected the exact issue. On
appeal, this court affirmed. State v. Melhado, 10th Dist. No. 13AP-114, 2013-Ohio-3547,
¶ 12-18. We rejected his PRC argument because he had already served his sentence for
the aggravated robbery conviction and, therefore, any error in failing to properly impose
PRC on that conviction was not correctable. Id. at ¶ 17.
{¶ 4} In 2015, appellant filed the present "Motion for Discharge from Custody" in
which he once again argued that the trial court failed to properly impose PRC. Appellant
also argued, for the first time, that he was not afforded a preliminary hearing in a timely
manner pursuant to R.C. 2945.71(C)(1). The trial court denied the motion. In doing so,
the trial court specifically noted that it had already rejected his PRC argument. It also
concluded that appellant was not entitled to a preliminary hearing once he had been
indicted.
II. Appellant's Appeal
{¶ 5} Appellant appeals from the trial court's denial of his "Motion for Discharge
from Custody" and assigns the following errors:
[1.] Whether, and pursuant to the provisions of: O.R.C.
§ 2967.28; O.R.C. § 2943.032(E); and, State v. Bezak, 114
1 Appellant was also found guilty of and sentenced for accompanying firearm specifications.
No. 15AP-960 3
Ohio St. 3d 94, it was reversible error and thus violative of due
process for the trial court to refuse to impose a mandatory
period of postrelease control on offenses(s) with which
postrelease control was/is required as a matter of law.
[2.] Whether a trial court's failure to indicate ['the sequence']
with which 'consecutive sentences' were/are to be served
implicates due process and renders the attempted judgment a
nullity and void.
[3.] Whether a jurisdictional challenge pursuant to relevant
portions of: O.R.C. § 2945.71; and, O.R.C. § 2945.73 [where
the record is manifest that appellant was not indicted or
received a municipal court remand to the grand jury within
the requisite 10-day time limitation] can be made at any time.
[4.] Whether a trial court's failure to notify a criminal
defendant of any of the consequences associated with a
violation of postrelease control sanction * * * implicates due
process and further implicates the resulting attempted
judgment as a final appealable order.
A. Appellant's Third Assignment of Error—Res Judicata
{¶ 6} Appellant's third assignment of error is barred by res judicata. State v.
Myers, 10th Dist. No. 11AP-909, 2012-Ohio-2733, ¶ 5. Under the doctrine of res judicata,
a final judgment bars a convicted defendant who was represented by counsel from raising
and litigating in any proceeding, except an appeal from that judgment, any defense or any
claimed lack of due process that the defendant raised or could have raised at trial or on
appeal. Id., citing State v. Brown, 167 Ohio App.3d 239, 2006-Ohio-3266, ¶ 7 (10th
Dist.); State v. Szefcyk, 77 Ohio St.3d 93, 96 (1996). This assignment of error could have
been raised in appellant's original appeal to this court. Having failed to do so, res judicata
bars him from raising it now. We recognize that an exception to the application of res
judicata applies to void judgments. State v. Mitchell, 187 Ohio App.3d 315, 2010-Ohio-
1766, ¶ 22, fn. 1 (6th Dist.), citing State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197,
¶ 30. However, the argument appellant presents in this assignment of error would not
render the trial court's judgment void. State v. Zaffino, 9th Dist. No. 21514, 2003-Ohio-
7202, ¶ 13-14, citing State v. Parker, 10th Dist. No. 80AP-67 (Sept. 2, 1980) ("An
otherwise valid indictment need not be dismissed merely because it was returned after the
No. 15AP-960 4
time limits imposed on a preliminary hearing."). Accordingly, we overrule appellant's
third assignment of error.
B. Appellant's Second Assignment of Error–Sentencing
{¶ 7} Appellant argues that the trial court failed to order the sequence of his
consecutive sentences. Res judicata notwithstanding, we cannot address this assignment
of error because appellant did not make this argument in his motion for discharge to the
trial court, and the failure to raise an issue before the trial court forfeits the right to raise
that issue on appeal. State v. Jackson, 10th Dist. No. 15AP-581, 2015-Ohio-5282, ¶ 5;
State v. Parsley, 10th Dist. No. 09AP-612, 2010-Ohio-1689, ¶ 18. Accordingly, we
overrule appellant's second assignment of error.
C. Appellant First and Fourth Assignments of Error–The Imposition of
Post-Release Control
{¶ 8} In these assignments of error, appellant again argues that the trial court
failed to properly impose PRC. While the improper imposition of PRC may render at least
that portion of a sentence void, so as to avoid the application of res judicata,2 this court
has already considered and rejected appellant's argument, noting that any error in the
trial court's failure to so notify appellant was not correctable because he has already
served his sentence for the aggravated robbery conviction. Melhado at ¶ 17. As this court
has already decided the issue, it is now law of the case and appellant cannot challenge it
again. State v. Eskridge, 11th Dist. No. 2001-P-0012, 2002-Ohio-1474. Accordingly, we
overrule appellant's first and fourth assignments of error.
III. Conclusion
{¶ 9} Having overruled appellant's four assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and BRUNNER, JJ., concur.
2 Myers at ¶ 8.