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State v. Cunningham

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 14, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
SELVIN CUNNINGHAM, Defendant-Appellant.

          Cuyahoga County Court of Common Pleas Case No. CR-17-614808-A Application for Reopening Motion No. 524221

         JUDGMENT: APPLICATION FOR REOPENING GRANTED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Callista Plemel, Assistant Prosecuting Attorney, for appellee.

          Selvin 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 reopening.

         I. Standard of Review Applicable to App.R. 26(B) Application for Reopening

         {¶ 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.

         II. Improper Sentencing - Allied Offenses of Similar Import

         {¶ 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 ...

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