State v. Lozada
2012 Ohio 8
Ohio Ct. App.2012Background
- Lozada was convicted by jury of two counts aggravated murder with firearm specifications, felonious assault with firearm specifications, and tampering with evidence.
- This court affirmed the judgment in a prior appeal; the Ohio Supreme Court denied a delayed appeal.
- Lozada timely filed an application for reopening under App.R. 26(B)(5) asserting ineffective appellate assistance of counsel.
- He argued plain-error theories: (i) judgment of conviction on count two aggravated murder with improper predicate offenses; (ii) improper sentencing of firearm specifications as separate terms for same act; (iii) trial counsel failures to object to these errors.
- This Court granted reopening, vacated count-two conviction and vacated the firearm specifications sentence, and remanded for resentencing on the firearm specifications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Plain error on count two conviction | Lozada argues count two was improperly convicted under 2903.01(B) with improper predicates. | State concedes error and that vacating count two is proper. | Count two conviction vacated. |
| Sentence for firearm specifications | Lozada contends the five-year firearm specs should be merged under same-transaction rule. | State argues court should have imposed the two most serious specifications; but at least the specifications should be addressed. | Sentence vacated in part; remanded for resentencing on firearm specifications. |
| Ineffective assistance of appellate counsel | Counsel failed to raise the claims identified in Lozada's first two proposed assignments. | Not explicitly addressed beyond the preservation of issues; the issue is moot after dismissal/remand. | moot due to disposition of first two assignments. |
Key Cases Cited
- State v. Spivey, 84 Ohio St.3d 24 (1998-Ohio-704) (two-prong Strickland-based standard for App.R. 26(B)(5) reopening)
- State v. Reed, 74 Ohio St.3d 534 (1996) (colorable claim of ineffective assistance on appeal required)
- Strickland v. Washington, 466 U.S. 668 (1984) (ineffective assistance framework)
- State v. Wulff, 2011-Ohio-700 (Ohio) (reopening granted in part, sentence vacated in part, remanded for resentencing)
- State v. Alhajjeh, 2010-Ohio-3179 (Ohio) (reopening allowed)
- State v. Douglas, 2007-Ohio-2625 (Ohio) (reopening granted)