Court of Appeals of Ohio, Eighth District, Cuyahoga
County Court of Common Pleas Case No. CR-08-510282
Application for Reopening Motion No. 509384
APPELLANT Landra Shearer, pro se
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Katherine Mullen Mary McGrath Assistant
JOURNAL ENTRY AND OPINION
T. GALLAGHER, J.
On August 8, 2017, the applicant, L Shearer, pursuant to
App.R. 26(B), applied to reopen this court's judgment in
State v. Shearer, 8th Dist. Cuyahoga No. 92974,
2010-Ohio-1666, in which this court affirmed his convictions
for attempted murder, two counts of felonious assault, and
having a weapon while under disability, but remanded the case
for resentencing to allow for merger of allied offenses.
Shearer now argues that his appellate counsel was ineffective
for not arguing alleged errors at the resentencing. For the
following reasons, this court denies the application.
Shearer shot his neighbor twice, in the arm and in the face,
while they were arguing. The grand jury indicted Shearer for
attempted murder with one- and three-year firearm
specifications, two counts of felonious assault with one- and
three-year firearm specifications, and two counts of having a
weapon while under disability. The jury found him guilty of
attempted murder and the two counts of felonious assault with
the firearm specifications, and the court found him guilty of
Count 4, having a weapon while under
disability. After merging the one- and three- year
firearm specifications, the trial judge sentenced Shearer to
three years on the firearm specification consecutive to five
years on the base charge of attempted murder, three years on
the firearm specifications for both felonious assault charges
consecutive to two years on each of the felonious assault
charges, and two years on the weapons charge. Each of the
firearm specifications were consecutive to each other and
consecutive to the base charges. The attempted murder charge
and the felonious assault charges were to be served
consecutively to each other, and the weapons charge was
concurrent to the other charges for a total of 18 years.
On appeal, this court affirmed the convictions but noted:
In Williams [124 Ohio St.3d 381');">124 Ohio St.3d 381, 2010-Ohio-174, 922
N.E.2d 937], the Ohio Supreme Court held that felonious
assault as defined in R.C. 2903.11(A)(2) is an allied offense
of attempted murder * * *. As a result, a criminal defendant
'may be found guilty of both offenses, [but] he may be
sentenced for only one.' * * * Shearer shot the victim
twice although he was charged and convicted of three separate
counts. The state retains the right to choose which of the
allied offenses to pursue at sentencing.
8th Dist. Cuyahoga No. 92974, 2010-Ohio-1666, ¶ 32 and
33. This court then remanded the case for resentencing.
On remand, the state of Ohio elected to have the court
sentence on Counts 1, 2, and 4, admitting that Count 3,
felonious assault, would merge with attempted murder.
Apparently, the trial judge then issued a nunc pro tunc order
on July 7, 2010, merging Count 3 and retaining the rest of
the sentence, so that Shearer was sentenced to 13 years.
Shearer maintains that this was done without notice, without
his attorney, without a court reporter, without a hearing,
and without him.
Since July 2010, Shearer has been trying to obtain a review
of that July 7, 2010 resentencing order. He has filed
multiple motions for resentencing; motions for delayed
appeal; an application to reopen this appeal, State v.
Shearer, 8th Dist. Cuyahoga No. 92974, 2010-Ohio-1666,
reopening disallowed, 2015-Ohio-5131, and appeals of
the denials of motions to resentence, e.g., State v.
Shearer, 8th Dist. Cuyahoga No. 103848, 2016-Ohio-7302,
in which this court ruled that Shearer's merger arguments
are now barred by res judicata.
Shearer has now filed another application to reopen pursuant
to App.R. 26(B) arguing that his appellate counsel in Case
No. 92974 was ineffective for not arguing the errors in the
resentencing. However, this is the wrong remedy at the wrong
App.R. 26(B) is to correct appellate counsel's deficient
representation in pursuing the appeal. Errors, if any, that
occurred after the appeal upon remand are beyond the scope of
App.R. 26(B). Appellate counsel in 2009 could not have argued
issues that would not arise until July 2010. State v.
Redmond, 8th Dist. Cuyahoga No. 74738, 1999 Ohio App.
LEXIS 4108 (Sept. 2, 1999), reopening disallowed,
Moreover, Shearer has previously filed an application to
reopen this appeal, which this court denied. Successive
applications are not permitted. State v. Slagle, 97
Ohio St.3d 332, ...