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State v. Hardnett

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 31, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
RODNEY A. HARDNETT, Defendant-Appellant.

          Cuyahoga County Court of Common Pleas Case No. CR-17-624230-A Application for Reopening Motion No. 526365

         JUDGMENT: APPLICATION FOR REOPENING GRANTED; SENTENCE VACATED IN PART AND REMANDED FOR RESENTENCING

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney and Mary M. Frey, Assistant Prosecuting Attorney, for appellee.

          Mark A. Stanton, Chief Public Defender, and Cullen Sweeney, Assistant Public Defender, for appellant.

          JOURNAL ENTRY AND OPINION

          SEAN C. GALLAGHER, JUDGE

         {¶ 1} Rodney Hardnett has filed a timely application for reopening pursuant to App.R 26(B). Hardnett is attempting to reopen the appellate judgment, rendered in State v. Hardnett, 8th Dist. Cuyahoga No. 107038, 2019-Ohio-105, that affirmed his plea of guilty and the sentence of incarceration imposed with regard to the offenses of attempted felonious assault (R.C. 2923.02/2903.11(A)(2)) with a three-year firearm specification (R.C. 2941.145(A)) and discharge of a firearm on or near prohibited premises (RC. 2923.162(A)(3)) with a three-year firearm specification (RC. 2941.145(A)). We grant the appellant's application for reopening, reopen the original appeal, and vacate the sentence in part and remand for resentencing.

         {¶ 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 Hardnett 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, Hardnett 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.

         {¶ 3} In support of his application for reopening, Hardnett raises two proposed assignments of error that shall be considered simultaneously:

Rodney Hardnett's sentence was contrary to law because the trial court erroneously imposed multiple three-year sentences for firearm specifications attendant to felonies that were committed in the same act or transaction.
Rodney Hardnett received the ineffective assistance of counsel when his trial counsel failed to argue that the trial court could not impose multiple three-year sentences for firearm specifications attendant to felonies that were committed in the same act or transaction.

         {¶ 4} Hardnett, through his two proposed assignments of error, argues that he was prejudiced by the failure of appellate counsel to argue on appeal a sentencing error. Specifically, Hardnett argues that the trial court erred by imposing consecutive three-year terms of incarceration as a result of two firearm specifications. We agree.

         {¶ 5} Herein, Hardnett entered a plea of guilty to the offenses of attempted felonious assault with a three-year firearm specification and discharge of a firearm on or near prohibited premises with a three-year firearm specification. The trial court imposed upon Hardnett a cumulative sentence of seven years:

DEFENDANT IN COURT. COUNSEL [FOR HARDNETT] PRESENT. COURT REPORTER PRESENT.
ON FORMER DAY OF COURT THE DEFENDANT [PLED] GUILTY TO ATTEMPTED, FELONIOUS ASSAULT 2923.02/2903.11A(2) F3 WITH FIREARM SPECIFICATION(S) - 3 YEARS (2941.145) AS ...

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