Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-17-624230-A
Application for Reopening Motion No. 526365
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
A. Stanton, Chief Public Defender, and Cullen Sweeney,
Assistant Public Defender, for appellant.
JOURNAL ENTRY AND OPINION
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
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 ...