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State v. Moore

Court of Appeals of Ohio, Ninth District, Lorain

July 8, 2019

STATE OF OHIO Appellee
v.
MICHAEL MOORE Appellant

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 14CR089050

          ROBERT CABRERA, Attorney at Law, for Appellant.

          DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          JENNIFER HENSAL, JUDGE.

         {¶1} Michael Moore moved to reopen his appeal from his convictions and sentence in the Lorain County Court of Common Pleas. This Court granted his application to reopen, and this matter is now before us for decision. For the reasons that follow, we vacate our previous decision and now reverse.

         I.

         {¶2} In State v. Graves, this Court explained our obligations in a reopened appeal as follows:

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, at ¶ 204 (citing Strickland v. Washington, 466 U.S. 668, 687-88 (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. Id. (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.

(Alterations sic.) 9th Dist. Lorain No. 08CA009397, 2011-Ohio-5997, ¶ 9. With those obligations in mind, we now turn to the relevant facts and procedural history of this case.

         {¶3} As this Court previously explained, "Mr. Moore pled guilty to one count of aggravated robbery with firearm specifications, three counts of robbery with firearm specifications, one count of tampering with evidence, one count of receiving stolen property with firearm specifications, and one count of obstructing official business. He was found guilty and sentenced to an aggregate total of twelve years in prison." State v. Moore, 9th Dist. Lorain No. 15CA010753, 2017-Ohio-7546, ¶ 2. He then moved for a delayed appeal, which this Court granted. Id. at ¶ 3. On appeal, he argued that his sentence was void because the trial court did not advise him of his "right to appeal, his right to appellate counsel, his right to an appeal without payment if indigent, and the time-sensitive nature of an appeal." Id. at ¶ 4. This Court overruled his appeal on the basis that any error in that regard was harmless. Id. at ¶ 6.

         {¶4} Mr. Moore then filed an application to reopen his appeal on the basis of ineffective assistance of appellate counsel. This Court granted his application, finding that a genuine issue existed as to whether his appellate counsel was ineffective. Mr. Moore then filed his merit brief, raising four assignments of error for our review. We have combined Mr. Moore's assignments of error, and will address his second assignment of error first.

         II.

         ASSIGNMENT OF ERROR I

         MOORE WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ...


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