Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-16-609359-A
Application for Reopening Motion No. 514109
APPELLANT Darwin Canales
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Amy Venesile Assistant County
Prosecutor 8th Floor Justice Center
JOURNAL ENTRY AND OPINION
Darwin Canales has filed a timely application for reopening
pursuant to App.R. 26(B). Canales is attempting to reopen the
appellate judgment, rendered in State v. Canales,
8th Dist. Cuyahoga No. 105514, 2017-Ohio-8735, that affirmed
his plea of guilty to the offenses of robbery, grand theft,
assault, and aggravated menacing, but modified the sentence
imposed by the trial court with regard to restitution. We
decline to reopen Canales's original appeal.
In order to establish a claim of ineffective assistance of
appellate counsel, Canales is required to establish that the
performance of his appellate counsel was deficient and the
deficiency resulted in prejudice. Strickland v.
Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110
S.Ct. 3258, 111 L.Ed.2d 767 (1990).
In Strickland, the United States Supreme Court held
that a court's scrutiny of an attorney's work must be
highly deferential. The court further stated that it is all
too tempting for a defendant to second-guess his attorney
after conviction and that it would be too easy for a court to
conclude that a specific act or omission was deficient,
especially when examining the matter in hindsight. Thus, a
court must indulge in a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.
Canales has raised one proposed assignment of error in
support of his application for reopening. Canales's sole
proposed assignment of error is that:
Trial court erred when it convicted and sentenced appellant
for robbery and grand theft, allied offenses and assault and
aggravated menacing, allied offenses, when they should have
merged for sentencing under R.C. 2941.25
Canales, through his sole assignment of error, argues that
appellate counsel was ineffective for failing to challenge
the validity of his plea of guilty without determining allied
offenses pursuant to R.C. 2941.25. Specifically, Canales
argues that the offenses of robbery and grand theft are
allied offenses. Canales further argues that the offenses of
assault and aggravated menacing are allied offenses.
When a defendant fails to raise an objection regarding the
nonmerger of alleged allied offenses of similar import, any
error associated with the failure to merge is waived, with
the exception of plain error. State v. Rogers, 143
Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860. Herein, we
find that Canales did not raise the issue of merger at trial
that waives any error associated with the failure to merge,
except for plain error. We further find that Canales has
failed to establish the existence of any plain error through
his argument of allied offenses.
In State v. Young, 8th Dist. Cuyahoga No. 105511,
2018-Ohio-488, this court once again detailed the analysis
that is to be applied to a claim of allied offenses and held
In his final assignment of error, [defendant] contends that
the court erred in failing to merge his convictions.
[Defendant] claims that his convictions were part of a single
course of conduct with a single animus.
R.C. 2941.25, the allied offenses statute, codifies the
constitutional right against double jeopardy, thus
prohibiting multiple punishments for the same offense.
State v. Robinson, 8th Dist. Cuyahoga No. 99917,
2014-Ohio-2973, ¶ 53, citing State v.
Underwood,124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d