STATE OF OHIO, Plaintiff-Appellee, v. ERICULO LAROSS HENDERSON, Defendant-Appellant.
Case No. 15 MA 0137
IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY
November 30, 2018
[Cite as State v. Henderson, 2018-Ohio-5123.]
BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.
Application for Reopening
JUDGMENT:
Denied.
Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecutor, Mahoning County Prosecutor’s Office, 21 W. Boardman Street., 6th Floor., Youngstown, Ohio 44503, For Plaintiff-Appellee and
Ericulo Laross Henderson, pro se, Inmate No. A672536, Southeastern Correctional Institution, 5900 BIS Road, S.W., Lancaster, Ohio 43130, for Defendant-Appellant.
Dated: November 30, 2018
{¶1} Defendant-Appellant Ericulo Henderson has filed an application for reopening of his convictions of second-degree felonious assault and second and third-degree felony child endangering. State v. Henderson, 7th Dist. No. 15 MA 137, 2018-Ohio-2816.
{¶2} An application to reopen an appeal must be filed “within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.”
{¶3} An application for reopening, pursuant to
{¶4} The standard for ineffective assistance of counsel is a two-part test where both prongs must be met: deficient performance and resulting prejudice. State v. Tenace, 109 Ohio St.3d 451, 2006–Ohio–2987, 849 N.E.2d 1, ¶ 5, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, (1984). See also State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (if the performance was not deficient, then there is no need to review for prejudice and vice versa). Appellant must show that counsel‘s performance was so deficient that it fell below an objective standard of reasonableness and, but for this substandard representation, the outcome of the case would have been different. Strickland at 687.
{¶5} Appellant asserts appellate counsel was ineffective for failing to raise the following three assignments of error:
“Trial counsel erred to the prejudice of Appellant and was deficient for failing to assure that the indictment adequately set forth the requirements for alleging in loco parentis status.”
“Trial counsel erred to the prejudice of the Appellant by failing to provide proper Jury Instructions on teacher immunity alleging ‘in loco parentis’ status, in the indictment.”
“Defendant-Appellant asserts that his conviction was not supported by sufficient evidence and/or against the manifest weight of the evidence in light of his claim that his actions constituted reasonable parental (in loco parentis) discipline under the circumstances.”
{¶6} All three assignments of error concern the in loco parentis element of
{¶7} The arguments Appellant presents concern the indictment not setting forth the in loco parentis status, the jury not being adequately instructed on the in loco parentis element, and there was not sufficient evidence and/or the conviction was against the manifest weight of the evidence because the evidence did not and could not establish he was in loco parentis to the victim. Appellant’s arguments may have merit; however, any error resulting from these failures only amounts to harmless error.
{¶8} Appellant was found guilty of second-degree felonious assault in violation of
{¶9} Courts have held, in merged offense cases, where there is sufficient evidence supporting the conviction of the state’s elected offense for sentencing, it is harmless error if there was insufficient evidence to support the offenses that merged with the elected offense. State v. Worley, 8th Dist. No. 103105, 2016–Ohio–2722, ¶ 23, citing State v. Powell, 49 Ohio St.3d 255, 263, 552 N.E.2d 191 (1990) (Even if evidence of kidnapping by restraint was insufficient to support conviction, the fact that the kidnapping by removal was based on sufficient evidence and merged with the kidnapping by restraint count means any error with the conviction was harmless beyond a reasonable doubt.); State v. Croom, 7th Dist. No. 12 MA 54, 2013–Ohio–5682, ¶ 60-61 (“The Supreme Court has concluded that, even if there is insufficient evidence to support one count, where that count has been merged with another count, the error in rendering a verdict on that count is harmless beyond a reasonable doubt.”), citing Powell; State v. Washington, 10th Dist. No. 09AP–424, 2009–Ohio-6665, ¶ 18 (court is not required to address appellant‘s sufficiency of the evidence challenge to the kidnapping offenses because the trial court merged those offenses into others). That reasoning also applies to the indictment issue, jury instruction issue and manifest weight argument. State v. Springer, 8th Dist. No. 104649, 2017-Ohio-8861, ¶ 15 (manifest weight); State v. Ramos, 8th Dist. No. 103596, 2016-Ohio-7685, ¶ 14 (holding that when counts in an indictment are allied offenses and there is sufficient evidence to support the offense on which the state elects to have the defendant sentenced, the appellate court need not consider the sufficiency of the evidence on the count that is subject to merger because any error would be harmless); State v. Franks, 8th Dist. No. 103682, 2016-Ohio-5241, ¶ 18 (jury instructions). Therefore, any error regarding the in
{¶10} Appellant’s application for reopening is denied.
Presiding Judge Carol Ann Robb
Judge Gene Donofrio
Judge Cheryl L. Waite
NOTICE TO COUNSEL
This document constitutes a final judgment entry.