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State v. Tomlinson

Court of Appeals of Ohio, Ninth District

August 14, 2013

STATE OF OHIO Appellee
v.
DARREN JEFFREY TOMLINSON Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 10 08 2231 (A)

HEATHER R. JOHNSTON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

EVE V. BELFANCE, Presiding Judge.

(¶1} Defendant-Appellant Darren Tomlinson moved to reopen his appeal from his convictions in the Summit County Court of Common Pleas. This Court granted his application to reopen, and the matter is now before us. For the reasons set forth below, we vacate our prior decision and reverse.

I.

(¶2} On August 19, 2010, Mr. Tomlinson was indicted on two counts of possessing cocaine, in violation of R.C. 2925.11(A)(C)(4), two counts of trafficking in cocaine, in violation of R.C. 2925.03(A)(C)(4); three counts of having weapons while under disability, in violation of RC. 2923.13(A)(3) and possessing criminal tools, in violation of RC. 2923.24. All of the possession and trafficking in cocaine counts also contained attendant forfeiture specifications, pursuant to RC. 2941.1417.

(¶3} A joint trial for Mr. Tomlinson and his co-defendant, Ms. Symphone Smith, commenced on March 21, 2011. Thereafter, a jury found Mr. Tomlinson guilty on all counts with the exception of the two trafficking counts. The trial court sentenced Mr. Tomlinson to a total of eleven years in prison.

(¶4} Mr. Tomlinson appealed and this Court affirmed his convictions. See State v. Tomlinson, 9th Dist. Summit No. 25924, 2012-Ohio-1441. Subsequently, Mr. Tomlinson filed a motion to reopen which we granted.

II.

(¶5} In State v. Graves, 9th Dist. Lorain No. 08CA009397, 2011-Ohio-5997, this Court explained our obligations in a reopened appeal:

Under Rule 26(B)(9) of the Ohio Rules of Appellate Procedure, "[i]f th[is][C]ourt finds that the performance of appellate counsel was deficient and the applicant was prejudiced by that deficiency, [it] shall vacate its prior judgment and enter the appropriate judgment. If th[is][C]ourt does not so find, [it] shall issue an order confirming its prior judgment." Deficient performance by a lawyer is a performance that falls below an objective standard of reasonable representation. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, [] ¶ 204[, ]citing Strickland v. Washington, 466 U.S. 668, 687-[6]88 (1984)[]. A defendant is prejudiced by the deficiency if there is a reasonable probability that, but for his lawyer's errors, the result of the proceeding would have been different. [Hale at ¶ 204, ]citing Strickland [at 694.] "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland[ at] 694.

Graves at ¶ 9. Upon our review of the record, we have concluded that the performance of Mr. Tomlinson's appellate counsel was deficient. Consequently, we vacate our opinion in State v. Tomlinson, 9th Dist. Summit No. ...


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