Court of Appeals of Ohio, Eighth District, Cuyahoga
Cuyahoga County Court of Common Pleas Case No. CR-17-614808-A
Application for Reopening Motion No. 524221
APPLICATION FOR REOPENING GRANTED
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Callista Plemel, Assistant Prosecuting
Attorney, for appellee.
Cunningham, pro se.
JOURNAL ENTRY AND OPINION
MICHELLE J SHEEHAN, JUDGE
1} Selvin R. Cunningham has filed a timely
application for reopening pursuant to App.R. 26(B).
Cunningham is attempting to reopen the appellate judgment,
rendered in State v. Cunningham, 8th Dist. Cuyahoga
No. 106109, 2018- Ohio-4022, that affirmed his conviction and
sentence for one count of corrupting another with drugs (R.C.
2925.02(A)(2)) and one count of promoting prostitution (R.C.
2907.22(A)(2)). We grant Cunningham's application for
Standard of Review Applicable to App.R. 26(B) Application for
2} In order to establish a claim of ineffective
assistance of appellate counsel, Cunningham is required to
demonstrate that the performance of his appellate counsel was
deficient and the deficiency resulted in prejudice.
Strickland v. Washington, 466 U.S. 688, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989), cert denied,
497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767 (1990).
3} In Strickland, the United States Supreme
Court held that a court's scrutiny of an attorney's
work must be highly deferential. The court further stated
that it is all too tempting for a defendant to second-guess
his attorney after conviction and that it would be too easy
for a court to conclude that a specific act or omission was
deficient, especially when examining the matter in hindsight.
Thus, a court must indulge in a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy. Strickland. Cunningham has raised three
proposed assignments of error in support of his application
for reopening in an attempt to establish the claim of
ineffective assistance of appellate counsel.
Improper Sentencing - Allied Offenses of Similar
4} Cunningham's first proposed assignment of
error is that:
Trial court committed plain error by sentencing appellant on
corrupting another with drugs and promoting prostitution when
those convictions are allied offenses of similar import in
violation of R.C. 2941.25(A) of the Ohio Revised Code.
5} Cunningham, through his first proposed assignment
of error, argues his appellate counsel was ineffective for
failing to argue on appeal that the offenses of corrupting
another with drugs and promoting prostitution are allied
offenses of similar import that required merger for the
purpose of sentencing.
6} R.C. 2941.25 of the Revised Code prohibits the
imposition of multiple punishments for the same criminal
conduct, and provides that:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such