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State v. Canales

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 25, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DARWIN CANALES DEFENDANT-APPELLANT

          Cuyahoga County Court of Common Pleas Case No. CR-16-609359-A Application for Reopening Motion No. 514109

          FOR 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

          TIM McCORMACK, JUDGE

         {¶1} 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.

         {¶2} 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).

         {¶3} 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. Strickland

         {¶4} 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

         {¶5} 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.

         {¶6} 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.

         {¶7} 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 that:

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 923, ...

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