State v. Hardy ( 2019 )

[Cite as State v. Hardy, 2019-Ohio-4981.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108262
v. :
BRANDON HARDY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 5, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-627534-A, CR-18-627941-A, CR-18-630306-A, and
CR-18-633801-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Denise J. Salerno, Assistant Prosecuting
Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Noelle A. Powell, Assistant Public Defender, for appellant.
MARY EILEEN KILBANE, A.J.:
Defendant-appellant, Brandon Hardy (“Hardy”), appeals from his 21-
year sentence resulting from four separate criminal cases in which he pled guilty to
drug possession, trafficking, attempting trafficking, carrying a concealed weapon,
having weapons while under disability, felonious assault, and child endangering.
For the reasons set forth below, we affirm.
In May 2018, Hardy was charged in two criminal cases. In Cuyahoga
C.P. No. CR-18-627534-A, he was charged with trafficking, drug possession,
carrying a concealed weapon, and possessing criminal tools. In Cuyahoga C.P. No.
CR-18-627941-A, Hardy was charged with having weapons while under disability,
improperly handling firearms in a motor vehicle, carrying a concealed weapon,
trafficking, two counts of drug possession, and possessing criminal tools. Each of
the counts in these two cases carried firearm and/or forfeiture specifications. In
July 2018, Hardy was charged in Cuyahoga C.P. No. CR-18-630306-A with two
counts of felonious assault and four counts of child endangering. The victim in this
case is G.B. (d.o.b. 9/12/16), who is the son of Hardy’s girlfriend at the time.1 In
October 2018, Hardy was charged in Cuyahoga C.P. No. CR-18-633801-A with drug
possession and two counts of trafficking. Each of the counts in this case carried
firearm and/or forfeiture specifications.
Pursuant to a plea agreement, Hardy pled guilty in Case No. CR-18-
627534 to an amended count of drug possession, with forfeiture specifications, and
carrying a concealed weapon. The remaining counts were dismissed. In Case No.
CR-18-627941, Hardy pled guilty to having a weapon while under disability, with
forfeiture specifications, and trafficking, with forfeiture specifications. The
1 G.B.’s mother was listed as a codefendant on the indictment and was charged with
one count of child endangering. Mother pled no contest to the charge and was sentenced
to nine months in prison. As of the date of this opinion, mother has not filed an appeal.
remaining counts were dismissed. In Case No. CR-18-630306, Hardy pled guilty to
felonious assault and two counts of child endangering. The remaining counts were
dismissed. In Case No. CR-18-633801, Hardy pled guilty to amended counts of
trafficking and attempted trafficking, both with forfeiture specifications. The
remaining count was dismissed. The trial court referred Hardy to the probation
department for a presentence investigation report (“PSI”) and set the matter for
sentencing in November 2018.
At the sentencing hearing, the trial court heard from the state, G.B.’s
maternal grandfather and paternal grandmother, the guardian ad litem (“GAL”),
defense counsel, and Hardy. The facts related to the child endangering case were
placed on the record by the state. In June 2018, Parma police were called to
Walmart after an off-duty police officer observed Hardy beating G.B., who was in
the back seat of the car. G.B.’s mother was in the front passenger seat. When the
officers arrived, Hardy was inside Walmart and G.B.’s mother was inside the car
with G.B. The officer observed bruises all over G.B.’s face, legs, chest, back, and
arms. G.B. also had cuts and what appeared to be burn marks on his arms. The left
side of his face was blistering from what appeared to be some sort of burn. G.B. also
had cuts and lacerations from the left side of his head across the top of his forehead
to the right side of his head. Photographs of the injuries were admitted into
evidence.
The next day, G.B.’s mother went to the Cleveland Police Department
and fıled a report against Hardy. The mother reported that in one incident, Hardy
pressed the scissors into the skin on G.B.’s head while cutting G.B.’s hair.
Photographs of the injuries depict slash marks running straight across G.B.’s head
and inside of his ears. The mother also reported that an incident occurred at a car
wash in Cleveland before the Walmart incident.
During this incident, Hardy sprayed G.B. in the face and arm while he
was power washing his van. This caused G.B.’s burned or torn off skin on the side
of G.B.’s face and arm. The state had video of this incident. The state described the
contents of the video to the trial court. The video depicts Hardy washing his van
with the back door pulled open. He then pulls G.B. to the edge of the door and points
the power washer into the car. G.B. was only about six inches away from the power
washer and flinched back into the car when sprayed by Hardy. Shortly thereafter,
Hardy is seen yanking G.B. out of the van and forcibly sitting him on the roof of the
van. G.B. is seen crying and moving around. Hardy then pulled G.B. off of the roof
and forcibly put him down on the ground. He picked up G.B., turned him upside
down, raised G.B. over his head, and then shook G.B. up and down, imitating a
slamming motion, but stopped short of hitting G.B.’s head to the ground.
G.B.’s maternal grandfather spoke to the court at sentencing and
asked the court to give Hardy the maximum sentence. G.B.’s GAL addressed the
court through a letter. The GAL stated that this was the worst case of child abuse
that she had ever seen, short of those children who did not survive the abuse. The
GAL described that although G.B.’s wounds healed, he still wakes up at night with
bad dreams and is seen to be very aggressive at times when playing. The GAL asked
the court to consider the impact that this case has had on G.B. and can still have in
the future. The GAL asked the court to sentence Hardy separately from his other
cases. The state agreed and asked the court to impose consecutive sentences. The
state reasoned:
For anybody to be able to treat a child, a 14-month old child in this
manner who can’t even talk yet, he’s a danger to all people in this
community.
He’s also selling methamphetamine putting the rest of the community
in danger, walking around with guns. This is just a dangerous person
who should not be in society. And for that the State is going to ask the
Court to consider consecutive sentences commensurate with this
crime, hopefully more on the higher end.
After the state spoke, defense counsel addressed the court. Counsel
advised that Hardy’s family was in the courtroom. He then explained that:
[w]hen I first got involved in this case, [Hardy] was charged with drug
offenses and then the felonious assault case came up. Judge, there’s no
question that he’s sorry for what he did. I’ve talked with him on many
occasions, most recently yesterday and this morning, he has expressed
to me he’s very sorry for this. He’s got a drug problem, Judge. And
maybe that doesn’t justify this, but if he weren’t on drugs, if he weren’t
involved in drug activity, I’m sure this would not have happened. He’s
got to deal with it. He’s going to deal with it, Judge. He just asks this
Court to be fair to him knowing that — I know a lot of people come
before this Court say they’ve got drug problems but he does have a
serious one, but he’s sober, he is sober now and he is sorry for his
activity.
Hardy’s grandmother then addressed the court on Hardy’s behalf.
She stated that Hardy’s mother and son died. She did not condone Hardy’s actions,
but acknowledged that he has a drug problem. Hardy spoke on his own behalf,
apologizing for his actions. He stated, “I know they was out of line. I apologize to
the family, to [G.B.] I apologize to the Court. And that’s it, your Honor.”
The court then sentenced Hardy to consecutive terms of
imprisonment for a total of 21 years in prison. The court sentenced Hardy to 18
months in Case No. CR-18-627534; two years, plus one year for the gun specification
in Case No. CR-18-627941; 15 years in Case No. CR-18-630306; and 18 months in
Case No. CR-18-633801.
Hardy now appeals, raising the following single assignment of error
for review:
Assignment of Error
[Hardy] received ineffective assistance of counsel at his sentencing
hearing.
Hardy seeks to vacate his sentence. He does not argue that the record
fails to support the trial court’s findings or that his sentence is contrary to law.
Rather, he argues that he received ineffective assistance of counsel at sentencing
because defense counsel did not fully address his problems. Hardy contends that
defense counsel failed to present the following mitigating evidence to reduce the
severity of his sentence: Hardy’s drug problem and the traumatic events listed in
Hardy’s PSI — the death of his mother and his son, his history of mental illness, and
the fact that his father is unknown.
In order to establish a claim of ineffective assistance of counsel, Hardy
must prove (1) his counsel was deficient in some aspect of his representation, and
(2) there is a reasonable probability that, were it not for counsel’s errors, the result
of the trial court proceedings would have been different. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “[A] court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of counsel’s conduct.” Id. at
690.
“‘The presentation of mitigating evidence is a matter of trial strategy,’
State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 189, even if
counsel’s chosen strategy proves unsuccessful, State v. Frazier, 61 Ohio St.3d 247,
255, 574 N.E.2d 483 (1991).” State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-
5735, 70 N.E.3d 508, ¶ 304; see also State v. Vinson, 2016-Ohio-7604, 73 N.E.3d
1025 (8th Dist.). “‘[D]ecisions on strategy and trial tactics are granted wide latitude
of professional judgment, and it is not the duty of a reviewing court to analyze trial
counsel’s legal tactics and maneuvers.’” State v. Edgerson, 8th Dist. Cuyahoga No.
101283, 2015-Ohio-593, ¶ 6, quoting State v. Quinones, 8th Dist. Cuyahoga No.
100928, 2014-Ohio-5544, ¶ 19, citing State v. Gau, 11th Dist. Ashtabula No. 2005-
A-0082, 2006-Ohio-6531, ¶ 35, and Strickland. A reviewing court, therefore, “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound * * * strategy.’” Strickland at 689, quoting Michel v. Louisiana,
350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).
In the instant case, Hardy was referred for a PSI. The mitigating
factors identified by Hardy were before the court in the PSI. At the sentencing
hearing, Hardy’s substance abuse problems and familial history were discussed by
Hardy’s grandmother. Defense counsel also discussed Hardy’s substance abuse
problems. Given that the mitigating factors were already before the court in the PSI
and brought to the court’s attention at the sentencing hearing, Hardy has not shown
a reasonable probability that the outcome of his sentencing would have been
different. Vinson at ¶ 38. Moreover, as the court stated in its sentencing colloquy:
[R.C.] 2929.14(C)(4) requires a trial court to engage in a three-step
analysis when imposing consecutive sentences. First, the trial court has
to find that consecutive sentences are necessary to protect the public
from future crime as well as to punish the offender. And certainly in
this case, notwithstanding the four files involved in this proceeding, the
defendant does have a prior criminal history and I do believe that given
the injuries in this case to a 14-month old child, consecutive sentences
are not disproportionate to the seriousness of the conduct and to the
danger that this individual poses to the public. And given the four
cases, many of which happened while he was already out on bail, he
committed one or more of the offenses while awaiting trial or
sentencing, and certainly I do believe that consecutive sentences with
respect to Case Number 630306 would not demean the seriousness of
the charges in this case.
In light of the foregoing, we cannot say defense counsel was deficient
or that Hardy’s sentence would have been different if defense counsel prepared a
mitigation report.
Accordingly, the sole assignment of error is overruled.
Judgment is 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 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.
______
MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE
EILEEN T. GALLAGHER, J., and
MICHELLE J. SHEEHAN, J., CONCUR