FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 14CR089050
CABRERA, Attorney at Law, for Appellant.
P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
JENNIFER HENSAL, JUDGE.
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.
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
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.
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.
OF ERROR I
WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION AND ...