[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
