[Cite as State v. Eaton, 2015-Ohio-170.]
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: APPLICATION GRANTED
Cuyahoga County Court of Common Pleas Case No. CR-12-564360 Application for Reopening Motion No. 475135
RELEASE DATE: January 20, 2015 FOR APPELLANT
Nathaniel Eaton, pro se Inmate Number 634-355 Trumbull Correctional Institution P.O. Box 901 Leavittsburg, OH 44430
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Brett Hammond Assistant County Prosecutor The Justice Center 1200 Ontario Street, 9th Floor Cleveland, OH 44113 MELODY J. STEWART, J.:
{¶1} On May 27, 2014, the applicant, Nathaniel Eaton, pursuant to App.R. 26(B), applied
to reopen this court’s judgment in State v. Eaton, 8th Dist. Cuyahoga No. 100147 (Mar. 7, 2014),
in which this court dismissed Eaton’s appeal for failure to file a brief. Eaton now claims that
his appellate counsel was ineffective for failing to argue that his convictions for involuntary
manslaughter and aggravated robbery were allied offenses and that his trial lawyers were
ineffective for failing to argue that point. On July 28, 2014, the state of Ohio filed its brief in
opposition. For the following reasons, this court grants the application to reopen.
{¶2} A review of the record shows that Eaton was walking with a friend when he came
upon an acquaintance, Robert Jackson, who was arguing with the victim.1 As Eaton’s friend
continued the walk, Eaton stayed and apparently tried to separate Jackson from the victim. (Tr.
28.) Nevertheless, Jackson struck the victim who fell down and hit his head. Eaton took the
victim’s cell phone from his hip and used it to place several calls. The victim’s fall resulted in
injuries that caused his death.
{¶3} The grand jury indicted Eaton for aggravated murder, murder, aggravated robbery,
and felonious assault, all with notice of prior conviction and repeat violent offender
specifications. 2 Pursuant to a plea agreement, the state amended the murder charge to
involuntary manslaughter. Eaton pleaded guilty to that charge and to aggravated robbery. The
state nolled the specifications and the aggravated murder and felonious assault charges.
Apparently, the victim asked Jackson for a quarter and an argument ensued. (Tr. 39.) 1
The grand jury indicted Jackson on the same basic charges. 2 {¶4} At the sentencing hearing in January 2013, Eaton’s lawyers tried to distance
Eaton’s actions from the killing blow in the hope of mitigating the sentence. His first attorney
stated that it was not Eaton’s purpose to steal from the victim. (Tr. 31.) His second attorney
pleaded that “the totality of the evidence would suggest that Mr. Eaton was not involved in the
violence that caused [the victim] to fall to the ground and strike his head and die.” (Tr. 36.)
{¶5} The trial judge sentenced Eaton to nine years in prison for the involuntary
manslaughter and three years for the aggravated robbery, to run consecutively for a total of
twelve years. The court noted that Eaton had an extensive criminal record dating back to 1995
and had been sent to prison multiple times. The trial judge made the findings required by R.C.
2929.14:
I’m going to find a consecutive prison term is necessary to protect the community and punish you, and it’s not disproportionate, and find that the harm was so great or unusual, that a single term does not adequately reflect the seriousness of this conduct, and your criminal history shows that a consecutive sentence is necessary to protect the public and the harm being so great or unusual that there was a life lost. (Tr. 51-52.) The judge further explained postrelease control, specified the number of jail-time
credit days, and waived court costs. However, the trial judge did not state the R.C. 2929.14
findings in the January 14, 2013 sentencing entry.
{¶6} On July 29, 2013, this court granted Eaton’s July 23, 2013 motion for delayed
appeal. On October 23, 2013, Eaton’s appointed counsel filed an Anders brief and a motion to
withdraw as counsel. After reviewing the record she concluded that Eaton’s trial attorneys were
not ineffective, that his guilty plea conformed to the requirements of Crim.R. 11, and that his
sentence was not contrary to law. 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. {¶7} On January 13, 2014, Eaton filed a six-sentence brief, claiming that his trial
attorneys were ineffective because they failed to investigate the case, failed to contact witnesses,
failed to obtain exculpatory evidence, and represented that he would get seven years, instead of
twelve. The state moved to dismiss the brief for failure to comply with App.R. 16. This court
granted that motion and instructed Eaton to file a brief in compliance with all the rules by March
3, 2014. When Eaton failed to file a new brief, this court dismissed the appeal on March 7,
2014.
{¶8} Now Eaton, through the public defenders’ office, has applied to reopen his appeal
because of ineffective assistance of appellate counsel. App.R. 26(B)(5) provides: “An
application for reopening shall be granted if the there is a genuine issue as to whether the
applicant was deprived of the effective assistance of counsel on appeal.” Generally, in order to
establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate
that counsel’s performance was deficient and that the deficient performance resulted in prejudice:
but for the unreasonable error there is a reasonable probability that the results of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74
Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.
{¶9} Eaton argues that his appellate counsel was ineffective for failing to argue that
involuntary manslaughter and aggravated robbery were allied offenses and that his trial counsel
were ineffective for failing to raise the issue. R.C. 2941.25(A) provides that when the
defendant’s conduct can be construed to constitute two or more allied offenses, he may be
indicted for all such offenses but may be convicted of only one. Subsection (B) provides that if the defendant’s conduct was separately committed or committed with a separate animus as to
each act, then the defendant may be convicted of all the offenses. This statute protects the
constitutional right against double jeopardy. In State v Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1601, the Supreme Court of Ohio clarified that when considering
whether two offenses are allied offenses, the conduct of the accused must be considered. First,
the court must determine whether it is possible to commit one offense and commit the other with
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[Cite as State v. Eaton, 2015-Ohio-170.]
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: APPLICATION GRANTED
Cuyahoga County Court of Common Pleas Case No. CR-12-564360 Application for Reopening Motion No. 475135
RELEASE DATE: January 20, 2015 FOR APPELLANT
Nathaniel Eaton, pro se Inmate Number 634-355 Trumbull Correctional Institution P.O. Box 901 Leavittsburg, OH 44430
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Brett Hammond Assistant County Prosecutor The Justice Center 1200 Ontario Street, 9th Floor Cleveland, OH 44113 MELODY J. STEWART, J.:
{¶1} On May 27, 2014, the applicant, Nathaniel Eaton, pursuant to App.R. 26(B), applied
to reopen this court’s judgment in State v. Eaton, 8th Dist. Cuyahoga No. 100147 (Mar. 7, 2014),
in which this court dismissed Eaton’s appeal for failure to file a brief. Eaton now claims that
his appellate counsel was ineffective for failing to argue that his convictions for involuntary
manslaughter and aggravated robbery were allied offenses and that his trial lawyers were
ineffective for failing to argue that point. On July 28, 2014, the state of Ohio filed its brief in
opposition. For the following reasons, this court grants the application to reopen.
{¶2} A review of the record shows that Eaton was walking with a friend when he came
upon an acquaintance, Robert Jackson, who was arguing with the victim.1 As Eaton’s friend
continued the walk, Eaton stayed and apparently tried to separate Jackson from the victim. (Tr.
28.) Nevertheless, Jackson struck the victim who fell down and hit his head. Eaton took the
victim’s cell phone from his hip and used it to place several calls. The victim’s fall resulted in
injuries that caused his death.
{¶3} The grand jury indicted Eaton for aggravated murder, murder, aggravated robbery,
and felonious assault, all with notice of prior conviction and repeat violent offender
specifications. 2 Pursuant to a plea agreement, the state amended the murder charge to
involuntary manslaughter. Eaton pleaded guilty to that charge and to aggravated robbery. The
state nolled the specifications and the aggravated murder and felonious assault charges.
Apparently, the victim asked Jackson for a quarter and an argument ensued. (Tr. 39.) 1
The grand jury indicted Jackson on the same basic charges. 2 {¶4} At the sentencing hearing in January 2013, Eaton’s lawyers tried to distance
Eaton’s actions from the killing blow in the hope of mitigating the sentence. His first attorney
stated that it was not Eaton’s purpose to steal from the victim. (Tr. 31.) His second attorney
pleaded that “the totality of the evidence would suggest that Mr. Eaton was not involved in the
violence that caused [the victim] to fall to the ground and strike his head and die.” (Tr. 36.)
{¶5} The trial judge sentenced Eaton to nine years in prison for the involuntary
manslaughter and three years for the aggravated robbery, to run consecutively for a total of
twelve years. The court noted that Eaton had an extensive criminal record dating back to 1995
and had been sent to prison multiple times. The trial judge made the findings required by R.C.
2929.14:
I’m going to find a consecutive prison term is necessary to protect the community and punish you, and it’s not disproportionate, and find that the harm was so great or unusual, that a single term does not adequately reflect the seriousness of this conduct, and your criminal history shows that a consecutive sentence is necessary to protect the public and the harm being so great or unusual that there was a life lost. (Tr. 51-52.) The judge further explained postrelease control, specified the number of jail-time
credit days, and waived court costs. However, the trial judge did not state the R.C. 2929.14
findings in the January 14, 2013 sentencing entry.
{¶6} On July 29, 2013, this court granted Eaton’s July 23, 2013 motion for delayed
appeal. On October 23, 2013, Eaton’s appointed counsel filed an Anders brief and a motion to
withdraw as counsel. After reviewing the record she concluded that Eaton’s trial attorneys were
not ineffective, that his guilty plea conformed to the requirements of Crim.R. 11, and that his
sentence was not contrary to law. 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. {¶7} On January 13, 2014, Eaton filed a six-sentence brief, claiming that his trial
attorneys were ineffective because they failed to investigate the case, failed to contact witnesses,
failed to obtain exculpatory evidence, and represented that he would get seven years, instead of
twelve. The state moved to dismiss the brief for failure to comply with App.R. 16. This court
granted that motion and instructed Eaton to file a brief in compliance with all the rules by March
3, 2014. When Eaton failed to file a new brief, this court dismissed the appeal on March 7,
2014.
{¶8} Now Eaton, through the public defenders’ office, has applied to reopen his appeal
because of ineffective assistance of appellate counsel. App.R. 26(B)(5) provides: “An
application for reopening shall be granted if the there is a genuine issue as to whether the
applicant was deprived of the effective assistance of counsel on appeal.” Generally, in order to
establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate
that counsel’s performance was deficient and that the deficient performance resulted in prejudice:
but for the unreasonable error there is a reasonable probability that the results of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989); and State v. Reed, 74
Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.
{¶9} Eaton argues that his appellate counsel was ineffective for failing to argue that
involuntary manslaughter and aggravated robbery were allied offenses and that his trial counsel
were ineffective for failing to raise the issue. R.C. 2941.25(A) provides that when the
defendant’s conduct can be construed to constitute two or more allied offenses, he may be
indicted for all such offenses but may be convicted of only one. Subsection (B) provides that if the defendant’s conduct was separately committed or committed with a separate animus as to
each act, then the defendant may be convicted of all the offenses. This statute protects the
constitutional right against double jeopardy. In State v Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1601, the Supreme Court of Ohio clarified that when considering
whether two offenses are allied offenses, the conduct of the accused must be considered. First,
the court must determine whether it is possible to commit one offense and commit the other with
the same conduct. If that is possible, then the court “must determine whether the offenses were
committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’” ¶ 48.
Eaton relies upon State v. Lacavera, 8th Dist. Cuyahoga No. 96242, 2012-Ohio-800, and State
v. Darnell, 5th Dist. Delaware No. 10 CAA 10 0083, 2011-Ohio-3647, for the proposition that
aggravated robbery and acts of violence, such as knocking a person down during a robbery, are
allied offenses.
{¶10} On July 25, 2013, in State v. Rogers, 2013-Ohio-3235, 994 N.E.2d 499 (8th Dist.),
this court, en banc, ruled: “Where a facial question of allied offenses of similar import presents
itself, a trial court has a duty to inquire and determine under R.C. 2941.25 whether those offenses
should merge. A trial court commits plain error in failing to inquire and determine whether
such offenses are allied offenses of similar import.” 2013-Ohio-3235, ¶ 63. A defendant’s
failure to raise the allied offense issue at sentencing does not preclude the defendant from raising
the issue on appeal. Similarly, a guilty plea that does not include a stipulation or finding that
the offenses are not allied offenses does not resolve the allied offense issue. Therefore, a guilty
plea is not a waiver of the double jeopardy protections under R.C. 2941.25.
{¶11} In the present case, a facial question on allied offenses is presented. From the
limited factual development at the sentencing hearing, it appears that Eaton’s culpability for involuntary manslaughter may have arisen from his taking advantage of the mortal blow by
stealing the victim’s cell phone, the act that constitutes aggravated robbery.3 The trial judge did
not inquire into the allied offense issue and, thus, did not determine whether the offenses were
allied offenses of similar import. Eaton’s plea bargain did not resolve the issue, and his guilty
plea to both offenses was not a waiver. Therefore, the elements of an allied offenses argument
exists.
{¶12} Furthermore, Rogers had been the law of this district several months when Eaton’s
appellate counsel filed the Anders brief. Counsel’s performance was deficient for not
considering the allied offenses argument as a possible assignment of error. This deficiency
prejudiced Eaton because he essentially had no appeal at all.
{¶13} Accordingly, this court grants the application to reopen.
{¶14} The court appoints Cullen Sweeney, Assistant Public Defender, 310 Lakeside
Avenue, Suite 200, Cleveland, Ohio, 44113, telephone 216-443-7583, to represent
applicant-appellant. Counsel is instructed to apply for compensation within thirty (30) days
after journalization of this court’s final decision in the reopened appeal. Loc.R. 46(C).
{¶15} The Clerk of the Court of Appeals is instructed to reassemble the record in 8th
Dist. Cuyahoga No. 100147 as it existed during this court’s original review of the judgment in
State v. Eaton, Cuyahoga C.P. No. CR-12-564360-B. This court grants Eaton leave to file a
motion to supplement the record within thirty days of this entry.
It is unclear from the transcript at the sentencing hearing whether Eaton’s culpability for 3
the victim’s death is premised on Jackson’s blow to the victim or Eaton’s delay in calling for assistance for the unconscious victim and taking his cell phone. {¶16} Eaton’s brief on the merits is due sixty days from the date of this entry.
Appellee’s brief is due within thirty days of the filing of Eaton’s brief. Eaton’s reply brief is
due within ten days of the filing of appellee’s brief. All briefs shall conform to the Appellate
Rules, including the local rules.
MELODY J. STEWART, JUDGE
FRANK D. CELEBREZZE, JR., A.J., and KATHLEEN ANN KEOUGH, J., CONCUR