[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, 2012FOR 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, 9 th 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 tria l court failed to merge counts which were allied offenses of similar import. We deny the app lication 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 de prived 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.2d696 (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 he ld 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 de ficient for failing to raise the issues he now presents, as well as showing that had he pr esented 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, de ny the application on the merits. {¶ 4} Taylor contends that his convictions for “aggravated robbery” and “aggravated kidnapping” should have been merged as allie d offenses of similar import under R.C. 2941.25. Application, 5. “Also the multiple count char ges sentences for aggravated burglary and kidnapping.” (C itation 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 i ndictment, which include d amended Count 1, burglary in violation of R.C. 2911.12(A)(1), a felony of the second degree, with a three-year fi rearm specification; and amended Count 2, robbery in vi olation of R.C. 2911.02(A)(1), a felony of the second degree, with a three-year firearm specifica tion. As part of the plea agreemen t, 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 author ity that the burglary and robbery in the underlying case are allied offenses of simila r 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 wher ein males wore masks and brandished guns upon the victims. Further, as part of the incident , it was alleged that appe llant held a gun to a victim’s head and subsequently discharged the firearm in her proximity.” Id ., ¶ 3. {¶ 7} Taylor has not provided th is court with any contro lling authority under which there would have been a “reasonable probability” th at he would have been successful on direct appeal if appellate couns el had assigned Taylor’s proposed a ssignment 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 wa s complete. When he proceeded to take property from the various individuals inside, while brandishing a g un, he engaged in the separate crime of robbery. For that reason, these are not a llied 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 fo r which he was convicte d, we must conclude that he has not demonstrated a ge nuine issue that he has a colorable claim of the ineffectiveness

1 The robbery count was actually count 9.of appellate counsel. Ra ther, we must conclude that appe llate counsel was not deficient and Taylor was not prejudiced by the absence of an a ssignment 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