State v. McElrath , 2024 Ohio 2475 ( 2024 )

[Cite as State v. McElrath, 2024-Ohio-2475.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2023-CA-45
:
v. : Trial Court Case No. 22-CR-0365(D)
:
D'ANDRE McELRATH : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on June 28, 2024
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FRANK M. BATZ, Attorney for Appellant
ROBERT C. LOGSDON, Attorney for Appellee
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TUCKER, J.
{¶ 1} D'Andre McElrath appeals from his conviction following a guilty plea to three
counts of felonious assault.
{¶ 2} McElrath challenges the trial court’s imposition of consecutive sentences. He
contends its sentencing findings were unsupported by the record. He also claims his guilty
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plea was invalid because he was unaware of the potential for consecutive sentences.
Finally, he alleges ineffective assistance of counsel based on his attorney’s failure to
advocate for concurrent sentences.
{¶ 3} We conclude that the record does not clearly and convincingly fail to support
the trial court’s consecutive-sentence findings. McElrath’s professed lack of awareness
about possible consecutive sentences did not invalidate his plea, and defense counsel
did not provide ineffective assistance. Accordingly, the trial court’s judgment will be
affirmed.
I. Background
{¶ 4} A grand jury charged McElrath with improperly discharging a firearm into a
habitation, discharging a firearm on or near prohibited premises, three counts of felonious
assault, improper handling of a firearm in a motor vehicle, and having a weapon while
under disability. The charges, which included a number of firearm-related specifications,
stemmed from a drive-by shooting in which McElrath and his co-defendants fired shots
into a residence and hit three people.
{¶ 5} Following his indictment, McElrath entered a negotiated guilty plea to the
felonious-assault charges. In exchange, the State agreed to dismiss the other charges
and all specifications. It also agreed to the preparation of a presentence investigation
(PSI) report. Finally, the State agreed that McElrath’s sentence would run concurrently
with the sentence to be imposed in a separate robbery case in which he had pled guilty.
The agreement was contingent on McElrath’s testifying truthfully against his co-
defendants if they went to trial. The trial court accepted the pleas during a September 29,
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2022 hearing.
{¶ 6} McElrath apparently satisfied his obligations under the plea agreement. He
appeared before the trial court for sentencing on August 28, 2023. The trial court indicated
that it had reviewed the PSI report as well as a letter from the mother of one of the victims.
After hearing from defense counsel, McElrath, and the prosecutor, the trial court imposed
three consecutive prison terms for the felonious-assault convictions. The aggregate
sentence for those offenses was 22 to 26 years in prison. Consistent with the plea
agreement, the trial court imposed a concurrent prison term of eight to twelve years in the
separate robbery case. McElrath timely appealed, advancing three assignments of error.
II. Analysis
{¶ 7} The first assignment of error states:
THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO
INDIVIDUAL SENTENCES ON THREE COUNTS, EACH COUNT TO BE
SERVED CONSECUTIVELY, AS THE TRIAL COURT’S FINDINGS WERE
UNSUPPORTED BY THE RECORD AND THUS CONTRARY TO LAW.
{¶ 8} McElrath challenges the trial court’s imposition of consecutive sentences. He
contends the record does not support some of the trial court’s findings under R.C.
2929.14(C)(4). Therefore, he argues that consecutive sentences were not permissible
and that his sentences should have been concurrent.
{¶ 9} When multiple prison terms are imposed, Ohio law presumes those
sentences will run concurrently rather than consecutively. R.C. 2929.41(A). However,
R.C. 2929.14(C)(4) permits the imposition of consecutive sentences if the trial court
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makes the findings prescribed by the statute. Specifically, the trial court must find that: (1)
“the consecutive service is necessary to protect the public from future crime or to punish
the offender”; (2) “consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public”; and (3) one or
more of the following three findings is made:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
R.C. 2929.14(C)(4)(a)-(c).
{¶ 10} “[W]here a trial court properly makes the findings mandated by R.C.
2929.14(C)(4), an appellate court may not reverse the trial court’s imposition of
consecutive sentences unless it first clearly and convincingly finds that the record does
not support the trial court's findings.” State v. Withrow, 2016-Ohio-2884, 64 N.E.3d 553,
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¶ 38 (2d Dist.). Under R.C. 2953.08(F), the “record” includes, among other things, any
presentence or other report submitted to the trial court, the trial record in the case, and
any oral or written statements made by or submitted to the trial court at the sentencing
hearing. The clear-and-convincing standard requires “a firm belief or conviction as to the
facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the syllabus.
{¶ 11} McElrath acknowledges that the trial court made the requisite findings for
consecutive sentences. However, he challenges the trial court’s findings that
consecutives sentences were necessary to protect the public from future crime and to
punish him adequately. He also challenges the trial court’s findings that consecutive
sentences were not disproportionate to the seriousness of his conduct and the danger he
poses to the public. He insists that “the record does not clearly and convincingly support”
these findings.
{¶ 12} We find McElrath’s argument to be unpersuasive. As an initial matter, the
issue is not whether the record clearly and convincingly supports the trial court’s findings.
Rather, R.C. 2953.08(G)(2) obligates McElrath to establish that the record clearly and
convincingly does not support them. State v. Jones, Ohio Slip Opinion No. 2024-Ohio-
1083, __ N.E.3d __, ¶ 17.
{¶ 13} McElrath was sentenced on August 28, 2023, in two cases. The first case
involved the robbery conviction. That offense occurred in February 2021 when he and his
co-defendants pulled a handgun and demanded the victim’s truck. When the victim failed
to comply, they beat him and stomped on his head, causing severe injuries. They also
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stole the victim’s wallet. The trial court imposed an eight to twelve-year prison sentence
in the robbery case. The trial court ordered that sentence to be served concurrently with
McElrath’s sentence in the present case, which involved his participation in a January
2022 drive-by shooting. On that occasion, 18-year-old McElrath and his co-defendants
fired shots into a residence and struck three people, including a 13-year-old child who
was hit in the stomach.
{¶ 14} McElrath was unemployed at the time of his arrest. He lacked a high-school
diploma, had never been married, and had one child. He self-reported mental-health
disorders including PTSD, ADHD, oppositional-defiant disorder, and extensive-
depression disorder. He admitted using marijuana and prescription pills daily. He lacked
a driver’s license and had no income or financial resources. His Ohio Risk Assessment
System recidivism risk-assessment level was high.
{¶ 15} In addition to the present case, McElrath had charges pending against him
for another felonious assault and an assault. His prior juvenile record included a 2014
adjudication for criminal damaging, a 2015 adjudication for menacing, a 2015 adjudication
for assault, a 2015 adjudication for criminal damaging/endangering, a 2015
admonishment for menacing, a 2015 adjudication for breaking and entering, two 2016
admonishments for theft, a 2017 adjudication for disorderly conduct, a 2018 adjudication
for robbery, and a 2019 adjudication for complicity to commit robbery. McElrath’s juvenile
record reflects a history of suspended commitments, commitments to DYS, and probation
violations.
{¶ 16} In light of the foregoing facts, the record does not clearly and convincingly
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fail to support the trial court’s findings that consecutives sentences were necessary to
protect the public from future crime and to punish McElrath. Nor does the record clearly
and convincingly fail to support its findings that consecutive sentences were not
disproportionate to the seriousness of his conduct and the danger he poses to the public.
McElrath had a history of engaging in serious criminal behavior. His two most recent
offenses involved a brutal group attack on the theft victim and his participation in a brazen
drive-by shooting that resulted in three victims being struck with bullets. Based on
McElrath’s background, history of criminal conduct, and the nature of his most recent
offenses, the record does not fail to support the trial court’s consecutive-sentence
findings. The first assignment of error is overruled.
{¶ 17} McElrath’s second assignment of error states:
APPELLANT’S [SIC] DID NOT KNOWINGLY, INTELLIGENTLY, AND
VOLUNTARILY ENTER THE PLEA AGREEMENT.
{¶ 18} McElrath contends his guilty plea was invalid because he was unaware of
the potential for consecutive sentences. Although he notes the trial court’s failure to
advise him about consecutive sentencing during the plea hearing, he appears to
acknowledge that Crim.R. 11(C)(2)(a) required no such advisement. See State v. Koob,
2d Dist. Clark No. 2023-CA-42, 2024-Ohio-1073, ¶ 13; State v. Shade, 2d Dist.
Montgomery Nos. 29373 & 29374, 2022-Ohio-3845, ¶ 13; State v. Swaney, 2d Dist.
Montgomery Nos. 28357 & 28515, 2020-Ohio-210, ¶ 28. Instead, he argues that defense
counsel provided ineffective assistance, and thereby rendered his guilty plea less than
knowing and voluntary, by not telling him about the potential for consecutive sentences
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before he entered his plea.
{¶ 19} We review alleged instances of ineffective assistance of counsel under the
two-part analysis found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984), which the Ohio Supreme Court adopted in State v. Bradley, 42 Ohio
St.3d 136, 538 N.E.2d 373 (1989). To prevail on an ineffective-assistance claim, a
defendant must show that trial counsel rendered deficient performance and that counsel’s
deficient performance prejudiced him. Strickland at paragraph two of the syllabus; Bradley
at paragraph two of the syllabus.
{¶ 20} To establish deficient performance, a defendant must show that his trial
counsel’s performance fell below an objective standard of reasonable representation.
Strickland at 688. In evaluating counsel’s performance, a reviewing court “must indulge
in a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. “The adequacy of counsel’s performance must be
viewed in light of all of the circumstances surrounding the trial court proceedings.” State
v. Jackson, 2d Dist. Champaign No. 2004-CA-24, 2005-Ohio-6143, ¶ 29. To establish
prejudice, a defendant must show that there is “a reasonable probability that, but for
counsel’s errors, the proceeding’s result would have been different.” State v. Hale, 119
Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688 and
Bradley at paragraph two of the syllabus.
{¶ 21} Even assuming that failure to advise a defendant about possible
consecutive sentencing can constitute ineffective assistance, McElrath’s argument fails
because the record does not reveal what his attorney told him before the plea hearing.
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Notably, however, the record contains a plea form signed by McElrath. It explicitly advised
him that the trial court could impose consecutive sentences for multiple charges. During
his plea hearing, McElrath acknowledged having reviewed the form with defense counsel.
Given that nothing in the record supports McElrath’s allegation that his attorney failed to
tell him about consecutive sentences, he cannot demonstrate ineffective assistance of
counsel. Compare State v. Redd, 2d Dist. Montgomery No. 11827, 1990 WL 94603, *2
(June 21, 1990) (“There is nothing in the record to substantiate Redd’s allegations of
ineffective assistance of counsel. The record neither establishes what Redd’s counsel
told him concerning the sentence that he could expect to receive, nor that whatever Redd
was told constituted ineffective assistance of counsel.”).
{¶ 22} Finally, McElrath claims defense counsel rendered ineffective assistance by
failing to obtain a “bullet analysis” used in his co-defendants’ trials. McElrath contends the
analysis showed that the shots he fired did not strike the victims. He suggests his plea
was invalid because he entered it without having this information. But McElrath’s
assertion, even if true, was no defense to the felonious-assault charges, which required
proof that he caused or attempted to cause physical harm with a deadly weapon. R.C.
2903.11(A)(2). Even more fundamentally, the record again lacks evidence supporting
McElrath’s claim about what the purported bullet analysis showed or that it even existed
when he entered his plea. Accordingly, the second assignment of error is overruled.
{¶ 23} McElrath’s third assignment of error states:
APPELLANT WAS SUBJECT TO THE INEFFECTIVE ASSISTANCE OF
COUNSEL.
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{¶ 24} McElrath next alleges ineffective assistance of counsel at sentencing. He
contends his attorney failed to oppose consecutive sentences, either orally or in writing.
McElrath acknowledges that defense counsel presented facts to the trial court in an
attempt to mitigate his sentence. However, defense counsel never specifically addressed
the statutory consecutive-sentencing factors by arguing that consecutive sentences were
unnecessary or that they would be disproportionate to the seriousness of McElrath’s
conduct and the danger he posed to the public. Given the potential for consecutive
sentencing, McElrath maintains that his attorney provided ineffective assistance by failing
to make these arguments.
{¶ 25} We conclude that McElrath’s attorney did not render ineffective assistance
by failing to address the consecutive-sentencing factors individually. As McElrath
acknowledges, defense counsel did argue in mitigation of sentence. Counsel addressed
the trial court and noted that McElrath had been sitting in jail for about a year. Counsel
asserted that he had been “making great strides” and “working on his substance abuse
and trying to just get a better mental grasp of what he needs to do for his life.” Counsel
noted that McElrath had been “very cooperative” in assisting police and detectives and
that he freely had pled guilty. Counsel stressed McElrath’s remorse as well as his
participation in and completion of various programs in jail.
{¶ 26} Although defense counsel did not recite any R.C. 2929.14(C)(4)
consecutive-sentencing factors, counsel’s argument was relevant to statutory factors
addressing the need to protect the public from future crime and the danger he posed to
the public. Defense counsel’s argument supported an inference that McElrath was doing
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so well rehabilitating himself that consecutive sentences were unnecessary to mitigate
these concerns. Defense counsel was not required to quote R.C. 2929.14(C)(4) when
making this argument. We see no deficient performance. Given our determination herein
that the record did not clearly and convincingly fail to support the trial court’s sentencing
findings, McElrath also could not have been prejudiced by defense counsel’s failure to
argue otherwise more directly. The third assignment of error is overruled.
III. Conclusion
{¶ 27} The judgment of the Clark County Common Pleas Court is affirmed.
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EPLEY, P.J. and HUFFMAN, J., concur.