[Cite as State v. Eaton, 2015-Ohio-170.]



                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA



                                  JOURNAL ENTRY AND OPINION
                                          No. 100147



                                            STATE OF OHIO


                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                           NATHANIEL EATON

                                                       DEFENDANT-APPELLANT




                                            JUDGMENT:
                                       APPLICATION GRANTED



                                Cuyahoga County Court of Common Pleas
                                       Case No. CR-12-564360
                                      Application for Reopening
                                          Motion No. 475135


               RELEASE DATE: January 20, 2015
FOR APPELLANT

Nathaniel Eaton, pro se
Inmate Number 634-355
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, OH 44430



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Brett Hammond
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

        {¶1} On May 27, 2014, the applicant, Nathaniel Eaton, pursuant to App.R. 26(B), applied

to reopen this court’s judgment in State v. Eaton, 8th Dist. Cuyahoga No. 100147 (Mar. 7, 2014),

in which this court dismissed Eaton’s appeal for failure to file a brief.      Eaton now claims that

his appellate counsel was ineffective for failing to argue that his convictions for involuntary

manslaughter and aggravated robbery were allied offenses and that his trial lawyers were

ineffective for failing to argue that point. On July 28, 2014, the state of Ohio filed its brief in

opposition. For the following reasons, this court grants the application to reopen.

        {¶2} A review of the record shows that Eaton was walking with a friend when he came

upon an acquaintance, Robert Jackson, who was arguing with the victim.1             As Eaton’s friend

continued the walk, Eaton stayed and apparently tried to separate Jackson from the victim.         (Tr.

28.) Nevertheless, Jackson struck the victim who fell down and hit his head. Eaton took the

victim’s cell phone from his hip and used it to place several calls. The victim’s fall resulted in

injuries that caused his death.

        {¶3}     The grand jury indicted Eaton for aggravated murder, murder, aggravated robbery,

and felonious assault, all with notice of prior conviction and repeat violent offender

specifications. 2     Pursuant to a plea agreement, the state amended the murder charge to

involuntary manslaughter. Eaton pleaded guilty to that charge and to aggravated robbery. The

state nolled the specifications and the aggravated murder and felonious assault charges.




            Apparently, the victim asked Jackson for a quarter and an argument ensued. (Tr. 39.)
        1




             The grand jury indicted Jackson on the same basic charges.
        2
       {¶4}    At the sentencing hearing in January 2013, Eaton’s lawyers tried to distance

Eaton’s actions from the killing blow in the hope of mitigating the sentence. His first attorney

stated that it was not Eaton’s purpose to steal from the victim. (Tr. 31.) His second attorney

pleaded that “the totality of the evidence would suggest that Mr. Eaton was not involved in the

violence that caused [the victim] to fall to the ground and strike his head and die.” (Tr. 36.)

       {¶5}    The trial judge sentenced Eaton to nine years in prison for the involuntary

manslaughter and three years for the aggravated robbery, to run consecutively for a total of

twelve years. The court noted that Eaton had an extensive criminal record dating back to 1995

and had been sent to prison multiple times.    The trial judge made the findings required by R.C.

2929.14:

       I’m going to find a consecutive prison term is necessary to protect the community
       and punish you, and it’s not disproportionate, and find that the harm was so great
       or unusual, that a single term does not adequately reflect the seriousness of this
       conduct, and your criminal history shows that a consecutive sentence is necessary
       to protect the public and the harm being so great or unusual that there was a life
       lost.
(Tr. 51-52.) The judge further explained postrelease control, specified the number of jail-time

credit days, and waived court costs. However, the trial judge did not state the R.C. 2929.14

findings in the January 14, 2013 sentencing entry.

       {¶6}    On July 29, 2013, this court granted Eaton’s July 23, 2013 motion for delayed

appeal. On October 23, 2013, Eaton’s appointed counsel filed an Anders brief and a motion to

withdraw as counsel. After reviewing the record she concluded that Eaton’s trial attorneys were

not ineffective, that his guilty plea conformed to the requirements of Crim.R. 11, and that his

sentence was not contrary to law. This court granted the motion to withdraw pursuant to Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and directed Eaton to file a

pro se brief if he chose to do so.
        {¶7}   On January 13, 2014, Eaton filed a six-sentence brief, claiming that his trial

attorneys were ineffective because they failed to investigate the case, failed to contact witnesses,

failed to obtain exculpatory evidence, and represented that he would get seven years, instead of

twelve. The state moved to dismiss the brief for failure to comply with App.R. 16.       This court

granted that motion and instructed Eaton to file a brief in compliance with all the rules by March

3, 2014. When Eaton failed to file a new brief, this court dismissed the appeal on March 7,

2014.

        {¶8}   Now Eaton, through the public defenders’ office, has applied to reopen his appeal

because of ineffective assistance of appellate counsel.         App.R. 26(B)(5) provides: “An

application for reopening shall be granted if the there is a genuine issue as to whether the

applicant was deprived of the effective assistance of counsel on appeal.” Generally, in order to

establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate

that counsel’s performance was deficient and that the deficient performance resulted in prejudice:

but for the unreasonable error there is a reasonable probability that the results of the proceeding

would have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74

Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.

        {¶9}   Eaton argues that his appellate counsel was ineffective for failing to argue that

involuntary manslaughter and aggravated robbery were allied offenses and that his trial counsel

were ineffective for failing to raise the issue.      R.C. 2941.25(A) provides that when the

defendant’s conduct can be construed to constitute two or more allied offenses, he may be

indicted for all such offenses but may be convicted of only one. Subsection (B) provides that if
the defendant’s conduct was separately committed or committed with a separate animus as to

each act, then the defendant may be convicted of all the offenses. This statute protects the

constitutional right against double jeopardy.       In State v Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1601, the Supreme Court of Ohio clarified that when considering

whether two offenses are allied offenses, the conduct of the accused must be considered. First,

the court must determine whether it is possible to commit one offense and commit the other with

the same conduct. If that is possible, then the court “must determine whether the offenses were

committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’” ¶ 48.

 Eaton relies upon State v. Lacavera, 8th Dist. Cuyahoga No. 96242, 2012-Ohio-800, and State

v. Darnell, 5th Dist. Delaware No. 10 CAA 10 0083, 2011-Ohio-3647, for the proposition that

aggravated robbery and acts of violence, such as knocking a person down during a robbery, are

allied offenses.

       {¶10} On July 25, 2013, in State v. Rogers, 2013-Ohio-3235, 994 N.E.2d 499 (8th Dist.),

this court, en banc, ruled: “Where a facial question of allied offenses of similar import presents

itself, a trial court has a duty to inquire and determine under R.C. 2941.25 whether those offenses

should merge. A trial court commits plain error in failing to inquire and determine whether

such offenses are allied offenses of similar import.” 2013-Ohio-3235, ¶ 63. A defendant’s

failure to raise the allied offense issue at sentencing does not preclude the defendant from raising

the issue on appeal.   Similarly, a guilty plea that does not include a stipulation or finding that

the offenses are not allied offenses does not resolve the allied offense issue.   Therefore, a guilty

plea is not a waiver of the double jeopardy protections under R.C. 2941.25.

       {¶11} In the present case, a facial question on allied offenses is presented. From the

limited factual development at the sentencing hearing, it appears that Eaton’s culpability for
involuntary manslaughter may have arisen from his taking advantage of the mortal blow by

stealing the victim’s cell phone, the act that constitutes aggravated robbery.3    The trial judge did

not inquire into the allied offense issue and, thus, did not determine whether the offenses were

allied offenses of similar import.    Eaton’s plea bargain did not resolve the issue, and his guilty

plea to both offenses was not a waiver.      Therefore, the elements of an allied offenses argument

exists.

          {¶12} Furthermore, Rogers had been the law of this district several months when Eaton’s

appellate counsel filed the Anders brief.          Counsel’s performance was deficient for not

considering the allied offenses argument as a possible assignment of error.           This deficiency

prejudiced Eaton because he essentially had no appeal at all.

          {¶13} Accordingly, this court grants the application to reopen.

          {¶14} The court appoints Cullen Sweeney, Assistant Public Defender, 310 Lakeside

Avenue, Suite 200, Cleveland, Ohio, 44113, telephone 216-443-7583, to represent

applicant-appellant. Counsel is instructed to apply for compensation within thirty (30) days

after journalization of this court’s final decision in the reopened appeal. Loc.R. 46(C).

          {¶15} The Clerk of the Court of Appeals is instructed to reassemble the record in 8th

Dist. Cuyahoga No. 100147 as it existed during this court’s original review of the judgment in

State v. Eaton, Cuyahoga C.P. No. CR-12-564360-B.           This court grants Eaton leave to file a

motion to supplement the record within thirty days of this entry.




            It is unclear from the transcript at the sentencing hearing whether Eaton’s culpability for
          3


the victim’s death is premised on Jackson’s blow to the victim or Eaton’s delay in calling for
assistance for the unconscious victim and taking his cell phone.
       {¶16} Eaton’s brief on the merits is due sixty days from the date of this entry.

Appellee’s brief is due within thirty days of the filing of Eaton’s brief.   Eaton’s reply brief is

due within ten days of the filing of appellee’s brief.   All briefs shall conform to the Appellate

Rules, including the local rules.




MELODY J. STEWART, JUDGE

FRANK D. CELEBREZZE, JR., A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
