[Cite as State v. Taylor, 2012-Ohio-99.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 95339

STATE OF OHIO 

DEFENDANT-APPELLEE 

vs. 

TEVIN TAYLOR 

PLAINTIFF-APPELLANT 

JUDGMENT: 

APPLICATION DENIED 

Cuyahoga County Common Pleas Court 

Case No. CR-531560 

Application for Reopening 

Motion No. 446220 

RELEASE DATE: January 11, 2012 
FOR APPELLANT 

Tevin Taylor 

Inmate No. A 584-561 

Lake Erie Correctional Inst. 

501 Thompson Road 

Conneaut, OH 44030 

ATTORNEYS FOR APPELLEE 

William D. Mason 

Cuyahoga County Prosecutor 

By: Mary McGrath 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 9th Floor 

Cleveland, OH 44113 

PATRICIA A. BLACKMON, P.J.: 

{¶ 1} In State v. Taylor, Cuyahoga County Court of Common Pleas Case No. 

CR-531560, applicant, Tevin Taylor, pled guilty to burglary and robbery, each with three-year 

firearm and forfeiture specifications. This court affirmed that judgment in State v. Taylor, 

Cuyahoga App. No. 95339, 2011-Ohio-2150. 

{¶ 2} Taylor filed with the clerk of this court a timely application for reopening. He 

asserts that he was denied the effective assistance of appellate counsel because his appellate 

counsel did not assign as error that the trial court failed to merge counts which were allied 

offenses of similar import. We deny the application for reopening. As required by App.R. 

26(B)(6), the reasons for our denial follow. 

{¶ 3} Having reviewed the arguments set forth in the application for reopening in light 

of the record, we hold that Taylor has failed to meet his burden to demonstrate that “there is a 

genuine issue as to whether the applicant was deprived of the effective assistance of counsel on 

appeal.” App.R. 26(B)(5). In State v. Spivey, 84 Ohio St.3d 24, 1998-Ohio-704, 701 N.E.2d 
696 (1998), the Supreme Court specified the proof required of an applicant. “In State v. Reed 

(1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456, 458, we held that the two-prong analysis found 

in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the 

appropriate standard to assess a defense request for reopening under App.R. 26(B)(5). 

[Applicant] must prove that his counsel were deficient for failing to raise the issues he now 

presents, as well as showing that had he presented those claims on appeal, there was a 

‘reasonable probability’ that he would have been successful. Thus [applicant] bears the burden 

of establishing that there was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of 

ineffective assistance of counsel on appeal.” Id. at 25. Applicant cannot satisfy either prong of 

the Strickland test. We must, therefore, deny the application on the merits. 

{¶ 4} Taylor contends that his convictions for “aggravated robbery” and “aggravated 

kidnapping” should have been merged as allied offenses of similar import under R.C. 2941.25. 

Application, 5. “Also the multiple count charges sentences for aggravated burglary and 

kidnapping.” (Citation deleted.) Id. 

{¶ 5} Taylor’s argument is, however, based on the erroneous assumption that he was 

convicted of aggravated burglary, aggravated robbery and kidnapping. In fact, Taylor “entered a 

plea of guilty to the amended indictment, which included amended Count 1, burglary in violation 

of R.C. 2911.12(A)(1), a felony of the second degree, with a three-year firearm specification; and 

amended Count 2, robbery in violation of R.C. 2911.02(A)(1), a felony of the second degree, 

with a three-year firearm specification. As part of the plea agreement, the parties agreed that the 

firearm specifications would merge for purposes of sentencing.” State v. Taylor, 8th Dist. No. 
95339, 2011-Ohio-2150, ¶ 7.1

 Absent some controlling authority that the burglary and robbery 

in the underlying case are allied offenses of similar import, we must reject Taylor’s request for 

reopening. 

{¶ 6} “The underlying criminal charges resulted from an incident where appellant was 

accused of participating in a home invasion wherein males wore masks and brandished guns 

upon the victims. Further, as part of the incident, it was alleged that appellant held a gun to a 

victim’s head and subsequently discharged the firearm in her proximity.” Id., ¶ 3. 

{¶ 7} Taylor has not provided this court with any controlling authority under which 

there would have been a “reasonable probability” that he would have been successful on direct 

appeal if appellate counsel had assigned Taylor’s proposed assignment of error regarding allied 

offenses. Compare State v. Smith, 8th Dist. No. 95243, 2011-Ohio-3051 (rejecting appellant’s 

argument that his convictions for aggravated burglary and aggravated robbery were allied 

offenses of similar import requiring merger). “Defendant [Smith] argues that the convictions 

stemmed from a single event. However, once defendant entered the apartment with an intent to 

commit a felony inside, the crime of burglary was complete. When he proceeded to take 

property from the various individuals inside, while brandishing a gun, he engaged in the separate 

crime of robbery. For that reason, these are not allied offenses of similar import and the court did 

not err by imposing separate sentences for them.” Id. ¶ 80. 

{¶ 8} In light of the faulty premise of Taylor’s argument as well as the absence of 

authority supporting his argument for the crimes for which he was convicted, we must conclude 

that he has not demonstrated a genuine issue that he has a colorable claim of the ineffectiveness 

 1

The robbery count was actually count 9. 
of appellate counsel. Rather, we must conclude that appellate counsel was not deficient and 

Taylor was not prejudiced by the absence of an assignment of error that the trial court failed to 

merge his convictions for burglary and robbery. 

{¶ 9} As a consequence, Taylor has not met the standard for reopening. Accordingly, 

the application for reopening is denied. 

PATRICIA A. BLACKMON, ADMINISTRATIVE JUDGE 

SEAN C. GALLAGHER, J., AND 

KENNETH A. ROCCO, J., CON