Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-17-616093-A
Application for Reopening Motion No. 527038
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Mary M. Frey, Assistant Prosecuting Attorney,
Williams, pro se.
JOURNAL ENTRY AND OPINION
EILEEN KILBANE, ADMINISTRATIVE JUDGE
1} Ocie Williams has filed a timely application for
reopening pursuant to App.R. 26(B). Williams is attempting to
reopen the appellate judgment, rendered in State v.
Williams, 8th Dist. Cuyahoga No. 106998, 2019-Ohio-10,
that affirmed his conviction and sentence for four counts of
aggravated burglary (R.C. 2911.11(A)(2)) with one- and
three-year firearm specifications (R.C. 2941.141/R.C.
2941.145), two counts of felonious assault (R.C.
2903.11(A)(1)) with one- and three-year firearm
specifications (RC. 2941.141/R.C. 2941.145), improperly
discharging firearm at or into habitation (RC.
2923.161(A)(1)) with one- and three-year firearm
specifications (RC. 2941.141/R.C. 2941.145), and having
weapons while under disability (R.C. 2923.13(A)(3)). We deny
Williams's application for reopening.
2} An application for reopening, pursuant to App.R.
26(B), provides a means to raise a claim of ineffective
assistance of appellate counsel in a criminal appeal. The
analysis set forth in Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for
ineffective assistance of counsel is the appropriate standard
to assess whether Williams has raised a "genuine
issue" as to the ineffectiveness of appellate counsel in
his request to reopen under App.R 26(B)(5). See State v.
Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998). To
establish ineffective assistance, Williams must demonstrate
that his counsel was deficient in failing to raise the issues
he now presents and that there was a reasonable probability
of success had the claims been presented on appeal. State
v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraph three of the syllabus.
In support of his application for reopening, Williams raises
one proposed assignment of error:
Appellate counsel was ineffective for failing to raise the
trial court erred when it imposed more than one term under
R.C. 2941.145 when it involves the same act or transaction
violating R.C. 2929.14(B)(1)(b) thus violating 5th Amendment
of the U.S. Constitution and the Ohio Constitution Art. I
Sect. 10 procedural due process of law.
4} Williams, through his sole proposed assignment of
error, argues that he was prejudiced by the failure of
appellate counsel to argue on appeal a sentencing error.
Specifically, Williams argues that the trial court erred by
imposing consecutive three-year terms of incarceration as a
result of two firearm specifications. We disagree.
5} Herein, the trial court sentenced Williams to
prison for a total of ten years: (1) four years on each
principal count but concurrent with each other; and (2) three
years on each of two separate firearm specifications, but
consecutive to each other and consecutive to the principal
6} Multiple firearm specifications may be subject to
merger under R.C. 2929.14. Ordinarily, a trial court is
prohibited from imposing multiple consecutive prison terms on
multiple firearm specifications for "felonies committed
as part of the same act or transaction" pursuant to R.C.
2929.14(B)(1)(b). However, R.C. 2929.14(B)(1)(g) permits the
imposition of multiple prison terms, with regard to multiple
firearm specifications, if the defendant is convicted of or
pleads guilty to two or more felonies that include one of the
specific offenses of aggravated murder, murder, attempted
aggravated murder, attempted murder, aggravated robbery,
felonious assault, or rape.
If an offender is convicted of or pleads guilty to two or
more felonies, if one or more of those felonies are
aggravated murder, murder, attempted aggravated murder,
attempted murder, aggravated robbery, felonious
assault, or rape, and if the offender is convicted of or
pleads guilty to a specification of the type described under
division (B)(1)(a) of this section in connection with two or
more of the felonies, the sentencing court shall impose
on the offender the prison term specified under division
(B)(1)(a) of this section for each of the two most serious
specifications of which the offender is convicted or to which
the offender pleads guilty and, in its discretion, also
may impose on the offender the prison term specified under
that division for any or all of the remaining specifications.
7} Williams's conviction for the offense of
felonious assault, along with his conviction for the serious
felony of aggravated burglary, mandated that the trial court
impose consecutive prison terms of incarceration with regard
to two firearm specifications. State v. Nelson, 8th
Dist. Cuyahoga No. 104336, 2017-Ohio-5568; State v.
Nitsche, 8th Dist. Cuyahoga No. 103174, 2016-Ohio-3170;
State v. Young, ...