State ex rel. v. McClarin , 2019 Ohio 5343 ( 2019 )

[Cite as State ex rel. v. McClarin, 2019-Ohio-5343.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108225
v. :
DEANGELO M. MCCLARIN, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 26, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-631858-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
Paul Kuzmins, Assistant Public Defender, for appellant.
EILEEN T. GALLAGHER, P.J.:
Defendant-appellant, Deangelo M. McClarin, appeals his sentence
and claims the following two errors:
1. The trial court erred in failing to inquire about exculpatory evidence
that was noted by defense counsel but never discussed in detail.
2. Trial counsel was ineffective when he noted that exculpatory
evidence existed but never discussed that evidence with the trial court
prior to sentencing.
We find no merit to the appeal and affirm. Inquiry and discussion at
the sentencing hearing regarding the nature and scope of potentially exculpatory
evidence was unnecessary since the trial court discovered the evidence during an in
camera review of confidential records and was familiar with them.
I. Facts and Procedural History
McClarin was charged with ten counts of rape and four counts of
kidnapping. The rape counts all included furthermore clauses pursuant to R.C.
2907.02(A)(1)(b), alleging that each of the four victims were under 13 years of age
at the time of the offenses. The kidnapping counts all included sexual motivation
specifications, alleging that McClarin committed the offenses with a sexual
motivation. The offenses allegedly occurred between June 1, 2018, and July 31,
2018, while the victims were six, seven, nine, and ten years old.
During the discovery phase of the case, McClarin filed a subpoena
duces tecum and a motion for an in camera inspection of records from the Cuyahoga
County Department of Child and Family Services (“CCDCFS”). CCDCFS filed a
motion to quash the subpoena with a request for a protective order, or in the
alternative, for the trial court to conduct an in camera inspection. The court
conducted an in camera review of the records, identified “potentially exculpatory”
records, and ordered the state to provide copies of “potentially exculpatory
evidence” to McClarin. (Journal entry Dec. 11, 2018.) Thereafter, McClarin pleaded
guilty to seven counts of rape with the age enhancements removed. The remaining
charges were nolled.
At sentencing, the state reminded the court that, as originally
indicted, McClarin was facing a potential life sentence without the possibility of
parole if convicted at trial. Pursuant to the plea agreement, McClarin was facing a
maximum 77 years in prison, if the court imposed maximum prison terms on every
count and ran them consecutively. Rather than ask for a maximum consecutive
sentence on all counts, the state recommended “something closer to a maximum
consecutive sentence for each child.” (Tr. 42.) Each rape conviction carried a
maximum 11-year sentence. The state recommended that the court impose a
consecutive sentence for each of the four victims for an aggregate 44-year prison
term. (Tr. 42.)
The court received a victim impact statement from the victims’
mother and mitigating statements from McClarin’s aunt and trial lawyer. The
victims’ mother informed the court that she felt betrayed and that she and the
children have been “left * * * with trust issues.” (Tr. 55.) McClarin’s aunt told the
court that McClarin was a “father figure” to the victims. McClarin’s lawyer stated
that McClarin was sorry for any harm he caused the children and understands the
children will probably never be the same. (Tr. 59.)
McClarin spoke on his own behalf and admitted to the court that his
conduct was wrong, but claimed he was “going through a lot of things” and “had
nothing to look forward to.” (Tr. 62.) He further explained that he would not have
been with the family “if mother didn’t give me genital herpes.” (Tr. 64.) He “didn’t
feel right being with another woman and putting them at risk and getting herpes,”
so he stayed with “that family.” (Tr. 65.) McClarin also stated that he had been
taking drugs and was “not actually focusing on what is in front of me.” (Tr. 65.)
Counsel reminded the court that even though “potentially
exculpatory evidence” was discovered during the in camera inspection, McClarin
chose to plead guilty rather than force the children to go through trial. Counsel
stated, in relevant part:
[A]s this Court knows, * * * counsel for the State of Ohio and I
painstakingly went through those records and we saw some interesting,
some exculpatory evidence regarding — some issues regarding the
children, but Mr. McClarin was not going to drag these kids into the
courtroom for a trial. He wasn’t going to do that and I think that’s
another factor we’re asking the Court to take into consideration at the
time of sentencing.
(Tr. 63.)
While considering factors in mitigation of prison at the sentencing
hearing, the court stated, in relevant part:
When I look at the less serious conduct in this matter, I certainly think
that the fact that you accepted responsibility, that you, as your lawyer
said, stepped up and said whatever your excuse was, that you were
involved in this and that you did this, and you say putting a six, seven,
nine, and ten year old on a trial in front of a jury, in front of strangers
to talk about this abuse is something that this Court considers. And the
fact that you took responsibility is what [your lawyer] is asking me to
look at and to show mercy in this matter.
(Tr. 69.) After considering all relevant sentencing factors, the court sentenced
McClarin to ten years on each of the seven rape counts, ordered several counts to be
served concurrently and other counts to be served consecutively for an aggregate
40-year prison term. McClarin now appeals his sentence.
II. Law and Analysis
A. Potentially Exculpatory Evidence
In the first assignment of error, McClarin argues the trial court erred
in failing to inquire about the exculpatory evidence referenced by defense counsel at
the sentencing hearing since counsel did not discuss the nature of the exculpatory
evidence in detail. He contends the court’s failure to ask about the details of the
evidence was an abuse of discretion because it prevented the court from properly
considering the purposes and principles of sentencing set forth in R.C. 2929.11 and
the seriousness and recidivism factors outlined in R.C. 2929.12.
We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d
1231, ¶ 16. R.C. 2953.08(G)(2) provides, in relevant part:
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court’s standard for review is not whether the sentencing
court abused its discretion. The appellate court may take any action
authorized by this division if it clearly and convincingly finds either of
the following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4)
of section 2929.14, or division (I) of section 2929.20 of the Revised
Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
In State v. Jones, 2018-Ohio-498, 105 N.E.3d 702 (8th Dist.), this
court, sitting en banc, held that, pursuant to Marcum at ¶ 23, the scope of appellate
review includes examination of the record to determine if the record clearly and
convincingly supports the trial court’s findings under R.C. 2929.11 and 2929.12. In
other words, R.C. 2953.08(G)(2) requires an appellate court to modify or vacate a
sentence if it finds, by clear and convincing evidence, that the record does not
support the findings required by relevant sentencing statutes, including R.C.
2929.11 and 2929.12. Id. at ¶ 9.
Although a trial court must consider the purposes and principles of
felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in
R.C. 2929.12, these are not fact-finding statutes. State v. Franklin, 8th Dist.
Cuyahoga No. 107482, 2019-Ohio-3760, ¶ 41; State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470, ¶ 42. The trial court is not required to make any
specific findings on the record regarding its consideration of the relevant sentencing
factors and principles. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951
N.E.2d 381, ¶ 31. Consideration of the appropriate factors can be presumed unless
the defendant affirmatively demonstrates otherwise. State v. Jones, 8th Dist.
Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13, citing State v. Stevens, 1st Dist. Hamilton
No. C-130278, 2013-Ohio-5218, ¶ 12.
The record in this case shows that the trial court considered all the
required sentencing factors and principles. Prior to imposing sentence, the trial
court acknowledged on the record that the sentence “must comply with the purposes
and principles of R.C. 2929.11(A)” and articulated all of the purposes and principles
of felony sentencing on the record, including the need to punish McClarin using the
minimum sanctions necessary to accomplish that purpose and the fact that the
sentence should be commensurate with, and not demeaning to, the seriousness of
his conduct. (Tr. 67.) In considering the seriousness factors set forth in R.C.
2929.12(B), the court observed that McClarin’s conduct of having vaginal and anal
intercourse with young children was very serious and caused unimaginable,
psychological harm. The court also commented that McClarin’s position as a father
figure living in the children’s home was a “serious factor” because their mother
trusted him. (Tr. 68.) And, the court noted that McClarin assaulted the children in
their bedrooms while they were sleeping and told them not tell anyone. (Tr. 68-69.)
The court further stated, in relevant part:
What I’m struggling with is I have four victims, four kids, and their ages
are six, seven, nine, and ten. I’m going to fashion a sentence that is
appropriate based on their age, based on the conduct involved, the
vaginal, anal, the fellatio, the conduct that the victims had described to
social workers, to the detective, to the prosecutors, and I’m going to
fashion a sentence that punishes you under the code section that fits
the purposes and principals [sic] of sentencing.
(Tr. 70.)
As previously stated, the court also considered it a mitigating factor
that McClarin accepted responsibility for his actions and pleaded guilty rather than
forcing the victims to go through trial. Therefore, the record shows that the court
thoroughly considered the purposes and principles of felony sentencing required by
R.C. 2929.11 and the seriousness and mitigating factors outlined in R.C. 2929.12.
Although the court did not ask defense counsel about the nature or
scope of the “potentially exculpatory evidence” discovered during the in camera
inspection, the docket shows that the court conducted the in camera review of the
records, discovered the potentially exculpatory evidence, and ordered that copies of
the potentially exculpatory portions of the records be provided to defense counsel.
Therefore, the court was aware of the potentially exculpatory nature of the evidence.
Furthermore, McClarin pleaded guilty, admitted his wrongdoing, and
acknowledged the serious harm he caused the victims in open court, which suggests
that the exculpatory nature of the evidence was not significant. Although the court
acknowledged McClarin’s desire to protect the victims from further harm by
pleading guilty and avoiding trial, it did not mention the exculpatory evidence,
despite being aware of it, probably because it was not particularly exculpatory. In
any case, the court was not required to make findings based on that evidence, the
record shows that the court was aware of the “potentially exculpatory evidence” and
that the court considered the relevant sentencing factors required by R.C. 2929.11
and 2929.12.
Therefore, the first assignment of error is overruled.
B. Ineffective Assistance of Counsel
In the second assignment of error, McClarin argues his Sixth
Amendment right to the effective assistance of counsel was violated because his trial
counsel failed to discuss details of the exculpatory evidence on the record at the
sentencing hearing.
To establish ineffective assistance of counsel, the defendant must
demonstrate that counsel’s performance fell below an objective standard of
reasonable representation and that he or she was prejudiced by that deficient
performance. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
McClarin argues his trial counsel’s performance was deficient
because he failed to discuss the exculpatory evidence that was produced during the
in camera inspection. He suggests the court was unaware of the evidence and that,
had counsel discussed the exculpatory evidence at the sentencing hearing, it would
have mitigated his sentence.
However, as previously stated, the court conducted the in camera
review of confidential records, discovered the “potentially exculpatory evidence,”
and ordered that it be provided to McClarin. Because the trial court was aware of
the evidence and its “potentially exculpatory” nature, counsel may have reasonably
concluded that it was not necessary to discuss the details of the evidence. Moreover,
McClarin fails to demonstrate that the outcome of the proceedings would have been
any different if his trial counsel had discussed the details of the “potentially
exculpatory evidence.” In other words, McClarin cannot demonstrate he was
prejudiced by his trial counsel’s decision to not discuss the evidence at the
sentencing hearing.
Therefore, the second assignment of error is overruled.
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 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.
EILEEN T. GALLAGHER, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR