[Cite as State v. Eaton, 2015-Ohio-3873.]


                     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:
                                             AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                Case No. CR-12-564360

        BEFORE: Keough, P.J., Boyle, J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: September 24, 2015
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
By: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brett Hammond
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

      {¶1} Defendant-appellant Nathaniel Eaton (“Eaton”) appeals the trial

court’s judgment sentencing him to twelve years in prison. He argues that

the trial court erred in sentencing him to consecutive prison terms on allied

offenses, and that his trial counsel was ineffective for not raising the allied

offenses issue at sentencing. Finding no merit to the appeal, we affirm.

                                  I. Background

      {¶2} Eaton was charged with codefendant Robert Jackson in a four-

count indictment related to the death of Leon Curry as follows: Count 1,

aggravated murder in violation of R.C. 2903.01(B); Count 2, murder in

violation of R.C. 2903.02(B); Count 3, aggravated robbery in violation of R.C.

2911.01(A)(3); and Count 4, felonious assault in violation of R.C. 2903.11(A)(1).

Each count also included a repeat violent offender specification and notice of

prior conviction specification.

      {¶3} Eaton subsequently pleaded guilty to involuntary manslaughter

as amended in Count 2, and aggravated robbery as charged in Count 3. The

state dismissed the remaining counts and all specifications.

      {¶4} At the sentencing hearing, the trial court sentenced Eaton to nine

years on Count 2, involuntary manslaughter, and three years on Count 3,

aggravated robbery, to be served consecutively for a total of twelve years.
Defense counsel did not raise the issue of allied offenses at sentencing, and the

court did not inquire whether the offenses were subject to merger.

      {¶5} This court subsequently granted Eaton’s motion for delayed

appeal.   His appointed counsel then filed an Anders brief and moved to

withdraw as counsel. 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.

      {¶6} After Eaton filed a six-sentence brief, this court granted the state’s

motion to dismiss and instructed Eaton to file a brief in compliance with the

appellate rules. When he failed to file a new brief by the deadline, this court

dismissed the appeal. Subsequently, Eaton, represented by counsel, filed an

application to reopen his appeal because of ineffective assistance of appellate

counsel. This court granted the application, finding that appellate counsel

was ineffective for not considering the allied offenses argument as a possible

assignment of error.

                                   II. Analysis

      {¶7} Eaton pled guilty to involuntary manslaughter in violation of R.C.

2903.04(A), which provides that “[n]o person shall cause the death of another

* * * as the proximate result of the offender’s committing or attempting to

commit a felony.” He also pled guilty to aggravated robbery in violation of

R.C. 2911.01(A)(3), which states that “[n]o person, in attempting or committing
a theft offense, * * * shall inflict, or attempt to inflict serious physical harm on

another.”

      {¶8} In his first assignment of error, Eaton contends that the trial court

erred in imposing consecutive sentences, in violation of R.C. 2941.25, because

his crimes were allied offenses of similar import that should have merged for

sentencing. In his second assignment of error, Eaton contends that the trial

court committed reversible error because it failed to inquire whether the

offenses merged for sentencing.

      {¶9} Because Eaton did not raise the issue of allied offenses in the trial

court, we review for plain error:

      An accused’s failure to raise the issue of allied offense of similar
      import in the trial court forfeits all but plain error, and a forfeited
      error is not reversible error unless it affected the outcome of the
      proceeding and reversal is necessary to correct a manifest
      miscarriage of justice. Accordingly, an accused has the burden to
      demonstrate a reasonable probability that the convictions are for
      allied offenses of similar import committed with the same conduct
      and without a separate animus; and, absent that showing, the
      accused cannot demonstrate that the trial court’s failure to inquire
      whether the convictions merge for purposes of sentencing was
      plain error.

State v. Rogers, Slip Opinion No. 2015-Ohio-2459, ¶ 3.

      {¶10} R.C. 2941.25 provides that:

      (A) Where the same conduct by defendant can be construed to
      constitute two or more allied offenses of similar import, the
      indictment or information may contain counts for all such offenses,
      but the defendant may be convicted of only one.
      (B) Where the defendant’s conduct constitutes two or more offenses
      of dissimilar import, or where his conduct results in two or more
      offenses of the same or similar kind committed separately or with
      a separate animus as to each, the indictment or information may
      contain counts for all such offenses, and the defendant may be
      convicted of all of them.

      {¶11} Recently, in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34

N.E.3d 892, the Supreme Court of Ohio clarified how courts are to determine

whether offenses are allied. The Supreme Court noted that the allied-offenses

analysis is dependent upon the facts of a case because R.C. 2941.25 focuses on

the defendant’s conduct. Id. at ¶ 26. Nevertheless, conduct is but one factor

to consider when determining whether offenses are allied. Id. at ¶ 21. The

court explained:

      As a practical matter, when determining whether offenses are
      allied offenses of similar import within the meaning of R.C.
      2941.25, courts must ask three questions when defendant’s
      conduct supports multiple offenses: (1) Were the offenses
      dissimilar in import or significance? (2) Were they committed
      separately? and (3) Were they committed with separate animus or
      motivation? An affirmative answer to any of the above will
      permit separate convictions. The conduct, the animus, and the
      import must all be considered.

Id. at ¶ 31.

      {¶12} With respect to import, the Supreme Court explained that offenses

are of dissimilar import “if they are not alike in their significance and their

resulting harm.” Id. at ¶ 21. Thus, “two or more offenses of dissimilar import

exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct
constitutes offenses involving separate victims or if the harm that results from

each offense is separate and identifiable.” Id. at ¶ 26.

      {¶13} The Supreme Court noted in Ruff that the evidence at trial or

during a plea or sentencing hearing will reveal whether the offenses have

similar import. Id. At sentencing in this case, the trial court stated that it

had reviewed Eaton’s presentence investigation report (“PSI”).        The PSI

indicated that Bradford Monroe told the police that he and Curry were walking

to the store around 10:50 a.m. on June 26, 2012 when two men, later identified

as Eaton and Jackson, walked toward them.         According to Monroe, when

Curry asked Jackson for a quarter, Jackson and Eaton became irate and began

verbally berating him, and eventually Jackson, and then Eaton, struck Curry

in the face. Curry fell backwards, striking his head on the ground. Monroe

said that as Curry lay on the ground, Eaton and Jackson reached in his pants

pockets and removed his cell phone, and then fled the scene on foot. Curry

was taken to the hospital where he later died; the coroner ruled the death a

homicide caused by blunt force trauma to the back of his head and brain

bruising.

      {¶14} The PSI indicated that Eaton’s version of the events was different

than Monroe’s: he said that when he arrived on the scene, he found Jackson

fighting with Curry. He denied hitting Curry but said that he saw him hit the
ground, and he admitted that he went through Curry’s pockets as he lay on the

ground.

      {¶15} The trial court heard from defense counsel at sentencing. One of

Eaton’s lawyers told the trial court that Eaton tried to intervene in the dispute

between Curry and Jackson, and Jackson then hit Curry. Defense counsel

said that Eaton stole Curry’s cell phone after he had fallen, and then called the

police and his girlfriend from that phone. Counsel told the court that “there’s

no real rendition that it was his purpose to steal money from the victim.”

      {¶16} Eaton’s other lawyer informed the trial court that the witnesses’

versions of what happened were inconsistent: one said both Eaton and Jackson

had struck the victim; another said only one person hit Curry; and Jackson

told the police that he did not think that Eaton had struck Curry. Defense

counsel also told the court that “the facts generally indicate that the purpose

of their encounter with him was not to rob him, though we stand here having

pled to that * * *.”

      {¶17} Eaton spoke at sentencing and told the trial court that he arrived

on the scene when Curry and Jackson were arguing, and he saw Jackson hit

Curry. He denied throwing any punches at Curry, but admitted that he took

Curry’s cell phone while he was on the ground; he said he used it to first call

the police and then his girlfriend.
      {¶18} The prosecutor informed the court that Curry’s cell phone records

indicated that Eaton called his girlfriend at 11:22 a.m. from Curry’s phone and

did not call the police until one hour and eight minutes later. The prosecutor

conceded that it could be open to dispute as to whether Eaton hit Curry, but

reminded the court that Eaton and Jackson had given varying accounts to the

police of what had transpired during their encounter with Curry.

      {¶19} On this record, Eaton has failed to meet his burden of

demonstrating that the court’s failure to merge the offenses was plain error.

Monroe said that Eaton and Jackson became irate after Curry asked Jackson

for a quarter, and then both men punched Curry in the face. He said that the

men took Curry’s cell phone as he lay on the ground after striking his head.

In light of Monroe’s statement, the trial court could reasonably infer that when

Eaton hit Curry, he did so because he was irritated at Curry’s request for

money, not because he intended to hurt him in order to rob him, and that he

only decided to take Curry’s cell phone after he saw him lying on the ground.

Thus, even assuming the offenses arose from the same conduct, the evidence

demonstrated that the offenses were not committed with the same animus.

Accordingly, the crimes were committed separately for purposes of R.C.

2941.25, and the trial court did not err in sentencing Eaton to consecutive

sentences. Ruff, 2015-Ohio-995 at ¶ 31.
      {¶20} Likewise, because Eaton has not met his burden as set forth in

Rogers of demonstrating a reasonable probability that his convictions are for

allied offenses of similar import committed without a separate animus, he

cannot demonstrate that the trial court’s failure to inquire whether the

convictions merged for sentencing was plain error.           The first and second

assignments of error are therefore overruled.

      {¶21} In his third assignment of error, Eaton contends that his trial

counsel was ineffective for not raising the allied offenses issue in the trial court.

In order to prove ineffective assistance of counsel, a defendant must show that

trial counsel failed to perform his duties reasonably, and that but for trial

counsel’s unprofessional errors, the outcome of the trial probably would have

been different. State v. Smith, 8th Dist. Cuyahoga No. 65636, 1994 Ohio App.

LEXIS 4375 (Sept. 29, 1994), citing Strickland v. Washington, 466 U.S. 668,

693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).          As discussed above, Eaton’s

offenses are not allied. Hence, any attempt by trial counsel to raise the issue

of allied offenses would have been unsuccessful. An attorney’s failure to raise

a losing issue is not ineffective representation. State v. McGuire, 80 Ohio

St.3d 390, 398, 686 N.E.2d 1112 (1997).        Because the outcome of the case

would not have been different had trial counsel raised the issue of allied

offenses, we find no ineffective assistance of counsel. The third assignment of

error is overruled.
      {¶22} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE

MARY J. BOYLE, J., and
ANITA LASTER MAYS, J., CONCUR
