[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



        The robbery count was actually count 9.
       1
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
