State v. Collier

[Cite as State v. Collier, 2011-Ohio-2791.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95572
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DOUGLAS COLLIER
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-534548
BEFORE: Stewart, J., Blackmon, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: June 9, 2011
ATTORNEY FOR APPELLANT
Joseph C. Patituce
Patituce & Associates, LLC
26777 Lorain Road, Suite 503
North Olmsted, OH 44070
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: T. Allan Regas
Francine B. Goldberg
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶ 1} Defendant-appellant, Douglas Collier, appeals from his sentence
entered on four counts of pandering sexually oriented matter involving a
minor, one count of importuning, and one count of possession of criminal
tools. He claims that counsel was ineffective for failing to rebut arguments
made in the state’s sentencing memorandum; that counsel failed to request
that the court merge the four counts of pandering; and that the court erred by
failing to justify the length of the sentence with reference to the sentencing
guidelines contained in R.C. 2929.11 and .12.
I
{¶ 2} Collier first argues that defense counsel was ineffective for failing
to respond to the state’s sentencing memorandum or request an extension of
time in which to file a response.
A
{¶ 3} A claim of ineffective assistance of counsel requires a defendant
to show that (1) the performance of defense counsel was seriously flawed and
deficient and (2) the result of the defendant’s trial or legal proceeding would
have been different had defense counsel provided proper representation.
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674. This analysis requires two distinct lines of inquiry. First, we
determine “whether there has been a substantial violation of any of defense
counsel’s essential duties to his client[.]” State v. Bradley (1989), 42 Ohio
St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. When making this
inquiry, we presume that licensed counsel has performed in an ethical and
competent manner. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 209 N.E.2d
164. Second, we determine whether “the defense was prejudiced by counsel’s
ineffectiveness.” Bradley, 42 Ohio St.3d at paragraph two of the syllabus.
Prejudice requires a showing to a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at paragraph three of the syllabus.
B
{¶ 4} We are aware of no authority for the proposition that defense
counsel must file a sentencing memorandum, nor has Collier offered
precedent in support of that proposition. Crim.R. 32(A) requires the court, at
the time of sentencing, to afford both defense counsel and the prosecuting
attorney “an opportunity to speak.” When a sentence is not mandatory, the
right of allocution afforded by Crim.R. 32(A) serves to give the court
information relevant to determining the appropriate sentence. Defiance v.
Cannon (1990), 70 Ohio App.3d 821, 828, 592 N.E.2d 884. The manner in
which defense counsel can “speak” on sentencing matters is undefined and
left to the judgment of defense counsel as a matter of strategy. Some defense
attorneys, when practicable, choose to submit a sentencing memorandum that
permits a detailed argument on behalf of the defendant. But the filing of
sentencing memoranda is the exception rather than the rule — the vast
majority of defense attorneys choose to forego a sentencing memorandum and
speak directly to the court at sentencing. It follows that there is no duty for
defense counsel to file a sentencing memorandum, so Collier did not show
that counsel violated an essential duty by not filing a sentencing
memorandum and choosing instead to address sentencing issues at the time
of sentencing.
{¶ 5} Collier next complains that defense counsel should have
requested a continuance to rebut the state’s sentencing memorandum, filed
on the day before sentencing.
{¶ 6} Reviewing courts are disinclined to second-guess matters of trial
strategy, State v. Tibbetts, 92 Ohio St.3d 146, 166-67, 2001-Ohio-132, 749
N.E.2d 226, and defense counsel’s decision to wait until sentencing to rebut
arguments made in a sentencing memorandum falls within the realm of
strategy. The question is whether defense counsel failed in an essential duty
in the manner in which he tried to rebut or counter the state.
{¶ 7} In its sentencing memorandum, the state did not request a
specific prison term, but argued that Collier’s actions demonstrated the worst
form of the offense and showed him to be a sexual predator. The
memorandum detailed how Collier, an instructor at a local performing arts
center, engaged in the long-term seduction of one of his minor students.
According to the state, Collier formed a strong relationship with the student,
taking him to dinner and driving him home from the arts center. The state
claimed this relationship culminated with Collier claiming that he needed to
prepare for a nude stage roll by offering the student cash to sit naked with
him in a hotel room. Collier told the student that this would allow him to
adjust to being nude in front of others. In email exchanges with the student,
Collier recognized that his actions were “dangerous” and told the student “you
can’t tell anyone lol! I could get prison for this.” The student told his school
guidance counselor, who in turn called the police. The police executed a
search warrant on Collier’s telephone and computer. In addition to finding
images of child pornography depicting nude juveniles engaged in sexual acts,
the police found 162 pictures of male genitalia and several videos depicting
juveniles engaging in sexual activity. Collier’s internet search history
showed that he frequented a website catering to older men/young boy
fantasies and that this website carried links to organizations like the North
American Man-Boy Love Association (“NAMBLA”) that specifically catered to
older men seeking young boys.
{¶ 8} Defense counsel objected to the state’s recitation of facts,
particularly its characterization of Collier’s actions as “scripted” and
“planned.” Defense counsel noted that apart from Collier’s guilty plea to the
charges, there were no facts in the record to prove any other assertion made
in the state’s sentencing memorandum, including Collier’s alleged possession
of photographs and video. Defense counsel noted that the state openly
contradicted its theory that Collier was a predator focused on juveniles by
pointing out that the website noted in the sentencing memorandum contained
a disclaimer stating: “We do not solicit or post child pornography.” Counsel
urged the court to look past the unsubstantiated claims made by the state
and focus on only the offenses to which Collier pleaded guilty, noting that
Collier was remorseful and that he had the support of family and friends who
stood by him.
{¶ 9} Given the circumstances described, we have no basis for finding
that defense counsel’s response to the sentencing memorandum was so inept
as to constitute the violation of an essential duty to Collier. Defense counsel
strenuously argued that the sentencing memorandum contained unsupported
facts. And it appears that he coordinated a letter-writing campaign for
Collier, as evidenced by the court’s statement to Collier that it “received a lot
of letters on your behalf.” Defense counsel noted that Collier suffered from
alcohol dependency that fueled his “bad behavior.” Finally, defense counsel
told the court that Collier had been changed by his crimes and that the
presentence investigation report showed that Collier was unlikely to reoffend.
{¶ 10} Collier does not say exactly how defense counsel should have
responded in writing to the sentencing memorandum. The record shows that
defense counsel competently represented Collier, making an argument at
sentencing that directly addressed and countered assertions made in the
state’s sentencing memorandum. We thus have no basis for finding that a
written response to the sentencing memorandum would have served any
useful purpose. Defense counsel did not violate an essential duty by failing
to seek time in which to prepare a response to the sentencing memorandum.
C
{¶ 11} Collier next argues that defense counsel was ineffective for failing
to ask the court to merge the sentences for the four counts of pandering
obscenity involving a minor.
{¶ 12} The pandering sexually oriented matter involving a minor counts
were charged under R.C. 2907.322(A)(5). That section states that no person,
having knowledge of the material involved, shall knowingly possess any
material that “shows a minor participating or engaging in sexual activity,
masturbation, or bestiality[.]” The counts referred to four different digital
images found on Collier’s cell phone. In its sentencing memorandum, the
state described the content of these images in terms that leave no doubt that
these were four different images. This resulted in four separate violations
of R.C. 2907.322(A)(5), so the counts do not merge. See State v. Geddes, 8th
Dist. No. 91042, 2008-Ohio-6489, ¶23; State v. Cummings, 9th Dist. No.
04CA0009-M, 2004-Ohio-6535, ¶10. Collier, moreover has failed to offer
anything in the record to rebut a finding that the images were separate and
distinct, so he has failed to exemplify his claimed error. See App.R. 16(A)(7).
D
{¶ 13} Finally, Collier complains that defense counsel failed to raise the
issue of proportionality of sentences at sentencing. He does not make a
specific argument as to why his sentence is disproportionate to his conduct,
but presumably believes that an eight-year sentence is excessively long in
relation to his conduct.
{¶ 14} “The Eighth Amendment does not require strict proportionality
between crime and sentence. Rather, it forbids only extreme sentences that
are grossly disproportionate” to the crime. State v. Weitbrecht (1999), 86
Ohio St.3d 368, 373, 715 N.E.2d 167, quoting Harmelin v. Michigan (1991),
501 U.S. 957, 1001, 111 S.Ct. 2680, (Kennedy, J., concurring in part and in
judgment).
{¶ 15} Claims of ineffective assistance of counsel based on a failure to
object to the proportionality of a sentence are rarely, if ever, successful.
Ewing v. California (2003), 538 U.S. 11, 21, 123 S.Ct. 1179, 155 L.Ed.2d 108(“outside the context of capital punishment, successful challenges to the
proportionality of particular sentences have been exceedingly rare.”) This is
because courts are vested with “full discretion” to impose a sentence within
the applicable statutory range. State v. Foster, 109 Ohio St. 3d 1,
2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus. The
statutory range is established by the General Assembly, and any sentence
falling within that range is presumptively valid.
{¶ 16} Collier makes no claim that the statutory range itself is invalid,
so he is reduced to arguing that his sentence, which plainly falls within the
statutory range, was so unreasonable that counsel was ineffective for failing
to object to it. This means Collier must show that counsel’s conduct fell
below an objective standard of reasonableness and that but for counsel’s
error, there is a reasonable probability the sentence would have been
different. See Strickland v. Washington (1984), 466 U.S. 668, 687-691, 104
S.Ct. 2052, 80 L.Ed.2d 674; State v. Simmons, 189 Ohio App.3d 532,
2010-Ohio-3412, 939 N.E.2d 869, ¶29; State v. Gabel, 8th Dist. No. 91788,
2009-Ohio-3735, ¶18.
{¶ 17} The court was presented with facts which suggested that Collier
misused his position of trust and authority with the student to “groom” him
for his sexual advances. Collier’s emails importuning the student show that
he knew he “could get prison for this” and that his proposition to the student
was “a dangerous thing.” Yet he proceeded to act despite this risk. The
court could view this conduct, along with evidence that Collier possessed
obscene pictures of juveniles, as showing a broader pattern of predation.
Collier’s work at the performing arts center primarily involved working with
minors, and evidence that he visited websites featuring older men/younger
boys showed that he had more than a passing interest in minors.
{¶ 18} As previously noted, defense counsel rebutted many of the
assertions made in the state’s sentencing memorandum. Defense counsel
apparently solicited a number of statements by friends and family vouching
for Collier’s character. Finally, defense counsel argued that Collier’s actions
were fueled by alcohol and his own victimization of abuse as a child and that
Collier had deep remorse for his conduct.
{¶ 19} Given these facts presented at sentencing, we cannot conclude
that any argument offered by counsel on the proportionality of maximum,
consecutive sentences would have affected the sentence imposed by the court.
The court found that Collier “literally sought out a vulnerable child and
consciously manipulated that child for [his] own enjoyment.” The court also
found that Collier failed to accept the consequences of his actions, particularly
since Collier must have known that there were no circumstances under which
he would have been justified “to ask a child to get nude with [him] period.”
We simply cannot say that anything defense counsel might have argued on
the proportionality of sentences would have made the least impact on the
court’s determination to punish Collier. Collier thus fails to show that there
is a reasonable probability that counsel’s objection to the proportionality of
the sentence would have impacted the court’s sentencing discretion in any
way. No ineffective assistance of counsel has been shown.
II
{¶ 20} In his second assignment of error, Collier complains that the
court failed to make statutory findings to justify maximum, consecutive
sentences, arguing that the decision in State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, 845 N.E.2d 470, rejecting outlawing the fact-finding
mandated by former R.C. 2929.14(E)(4) had effectively been overruled by the
United States Supreme Court in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct.
711, 172 L.Ed.2d 517.
{¶ 21} We reject this argument on authority of State v. Hodge, 128 Ohio
St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, in which the Ohio Supreme Court
held that Ice does not revive R.C. 2929.14(E)(4). Id. at paragraph two of the
syllabus.
Judgment affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga
County Court of Common Pleas to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal 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.
MELODY J. STEWART, JUDGE
PATRICIA ANN BLACKMON, P.J., and
JAMES J. SWEENEY, J., CONCUR