State v. Lozada , 2012 Ohio 8 ( 2012 )

[Cite as State v. Lozada, 2012-Ohio-8.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 94902
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EDWIN LOZADA
DEFENDANT-APPELLANT
JUDGMENT:
APPLICATION FOR REOPENING GRANTED (MOTION NO.
444726), CONVICTION VACATED IN PART,
SENTENCE VACATED IN PART, AND
REMANDED FOR RESENTENCING
Cuyahoga County Common Pleas Court
Case No. CR-523795-A
Application for Reopening
Motion No. 444726 and 444727
RELEASE DATE: January 4, 2012
ATTORNEY FOR APPELLANT
Peter Galyardt
Assistant State Public Defender
250 East Broad St., Suite 1400
Columbus, OH 43215
ATTORNEYS FOR RESPONDENT
William D. Mason
Cuyahoga County Prosecutor
By: Katherine Mullin
Assistant County Prosecutor
The Justice Center
1200 Ontario, 8th Floor
Cleveland, OH 44113
KENNETH A. ROCCO, J.:
{¶ 1} In State v. Lozada, Cuyahoga County Court of Common Pleas Case No.
CR-523795, applicant, Edwin Lozada, was found guilty by a jury of: two counts of
aggravated murder, each with one-year, three-year and five-year firearm specifications;
felonious assault, with one-year, three-year and five-year firearm specifications; and
tampering with evidence. This court affirmed that judgment in State v. Lozada,
Cuyahoga App. No. 94902, 2011-Ohio-823. The Supreme Court of Ohio denied
Lozada’s motion for a delayed appeal. State v. Lozada, 129 Ohio St.3d 1448,
2011-Ohio-4217, 951 N.E.2d 1045.
{¶ 2} Lozada has 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 appellate counsel did not assign as error that: 1) the trial court committed plain
error by entering a judgment of conviction on count two, aggravated murder under R.C.
2903.01(B) with attempted murder and felonious assault as the underlying, predicate
offenses; 2) the trial court committed plain error by sentencing Lozada to two, five-year
terms on firearm specifications that were committed in connection with two felonies as
part of the same act or transaction; and 3) trial counsel was ineffective for failing to
object to the trial court’s errors asserted in Lozada’s first and second proposed
assignments of error.
{¶ 3} We grant the application for reopening as well as reinstate his appeal,
vacate Lozada’s conviction in part, vacate his sentence in part, and remand for
resentencing with respect to the firearm specifications. As required by App.R. 26(B)(6),
the reasons for our decision follow.
{¶ 4} In State v. Spivey, 84 Ohio St.3d 24, 1998-Ohio-704, 701 N.E.2d 696, 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 was 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.
{¶ 5} In his first proposed assignment of error, Lozada argues that the trial court
committed plain error by entering a judgment of conviction on count two, aggravated
murder under R.C. 2903.01(B) with attempted murder and felonious assault as the
underlying, predicate offenses. Lozada was charged with offenses occurring in 2009.
At that time, R.C. 2903.01(B) provided: “No person shall purposely cause the death of
another or the unlawful termination of another’s pregnancy while committing or
attempting to commit, or while fleeing immediately after committing or attempting to
commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery,
aggravated burglary, burglary, terrorism, or escape.” Clearly, attempted murder and
felonious assault are not listed among the predicate offenses.
{¶ 6} Lozada correctly observes that, although the trial court merged the two
aggravated murder counts for sentencing, his conviction under count two for violating
R.C. 2903.01(B) is not authorized by law. Compare State v. Underwood, 124 Ohio
St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶31 (“[E]ven when the sentences are to be
served concurrently, a defendant is prejudiced by having more convictions than are
authorized by law”).
{¶ 7} The state concedes that Lozada’s having been charged and tried for
aggravated murder with attempted murder and felonious assault as the predicate offenses
was error. Additionally, the state acknowledges that vacating Lozada’s conviction with
respect to count two is the proper remedy. Appellee’s Memorandum in Response, at 4.
{¶ 8} In his second proposed assignment of error, Lozada argues that the trial
court committed plain error by sentencing Lozada to two five-year terms on firearm
specifications that were committed in connection with two felonies as part of the same act
or transaction. He observes that R.C. 2929.14(D)(1)(c) then provided: “A court shall not
impose more than one additional prison term on an offender under division (D)(1)(c) of
this section for felonies committed as part of the same act or transaction.”
{¶ 9} The state acknowledges that R.C. 2929.14(D)(1)(c) requires that the trial
court merge Lozada’s five-year specifications. Appellee’s Memorandum in Response,
at 5. The state argues, however, that the trial court erred by not imposing an additional
three-year firearm specification. R.C. 2929.14(D)(1)(g) requires the trial court to
impose the two most serious specifications if the defendant has been convicted of
multiple felonies at least one of which is aggravated murder or felonious assault, among
others.
{¶ 10} We decline to determine the propriety of the state’s position regarding the
three-year specification. Rather, we vacate Lozada’s sentence with respect to the
firearm specifications and remand the case for resentencing with respect to the firearm
specifications.
{¶ 11} In his third proposed assignment of error, Lozada contends that trial counsel
were ineffective for failing to object to the trial court’s errors asserted in Lozada’s first
and second proposed assignments of error. In light of our determination of his first two
proposed assignments of error, Lozada’s third proposed assignment of error is moot.
{¶ 12} Accordingly, we: grant the application for reopening; reinstate Lozada’s
appeal; vacate his conviction with respect to count two, aggravated murder under R.C.
2903.01(B); vacate his sentence with respect to the firearm specifications; and remand
this case for resentencing with respect to the firearm specifications. See, e.g., State v.
Wulff, Cuyahoga App. No. 94087, 2011-Ohio-700, reopening granted in part, sentence
vacated in part, and remanded for resentencing, 2011-Ohio-5146; State v. Alhajjeh,
Cuyahoga App. No. 93077, 2010-Ohio-3179, reopening allowed, 2011-Ohio-2160; and
State v. Douglas, Cuyahoga App. No. 88367, 2007-Ohio-2625, reopening granted,
2007-Ohio-5941.
Application for reopening granted (Motion No. 444726), conviction vacated in
part, sentence vacated in part, and remanded for resentencing.
It is, therefore, ordered that appellant recover of the appellee his costs herein
taxed.
It is ordered that a special mandate be sent to the Cuyahoga County Court of
Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27, of the Rules of Appellate Procedure.
KENNETH A. ROCCO, JUDGE
MARY J. BOYLE, P.J., AND
LARRY A. JONES, CONCUR