State v. McCauleyState v. McCauley
APPEARANCES:
For Plaintiff-Appellee:
WILLIAM C. HAYES
LICKING CO. PROSECUTOR
PAULA M. SAWYERS
20 S. Second St., Fourth Floor
Newark, OH 43055
For Defendant-Appellant:
WILLIAM T. CRAMER
470 Olde Worthington Rd., Ste 200
Westerville, OH 43082
{¶1} Appellant Dennis McCauley appeals from the August 23, 2019 Judgment Entry of the Licking County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The parties agree to the following statement of the facts and procedural history.
{¶3} A parole-violator-at-large warrant existed for appellant‘s arrest. Two parole officers, Thoms and Bailey, picked up appellant and his girlfriend, Paulleana Smith, on March 28, 2019. Appellant provided a home address of 51 North Fourth Street, Apartment D, Newark, and the parole officers transported appellant and Smith to the residence.
{¶4} Officers searched the residence and Thoms found a small bag containing a little over half a gram of methamphetamine. The bag was found wrapped inside a “do-rag” or “wave cap” found between the television and a DVD player in the living room. Thoms saw appellant wearing a similar cap on a prior occasion.
{¶5} Bailey found small empty baggies matching that found by Thoms. Bailey also recovered what appeared to be an “owe list,” typically documenting money owed to drug dealers. The spare baggies and “owe list” were found in a nightstand drawer in the bedroom. Bailey also found a baggie containing residue hidden in a speaker on a table beside the bed. Finally, officers recovered three cell phones and $1600 cash. Upon finding the methamphetamine, officers concluded the search without searching the kitchen.
{¶7} Thoms and Bailey testified that a violator-at-large warrant is intended to find an offender and determine his residence, and that arrest is not required. The officers decided to arrest appellant, however, upon finding the drugs in his home.
{¶8} Detective Green was present for the March 28 search to collect evidence. He testified that based on his experience, the amount of baggies and the “owe list” indicate someone was dealing methamphetamine.
{¶9} On April 1, 2019, Detective Conley listened in on a conversation between appellant and Smith. A partial recording of the conversation was played for the jury. Conley recognized the voices on the recording as appellant and Smith. Conley heard appellant say, “I have 14 in the house,” and refer to an “oven mitt.” Conley presumed appellant was referring to 14 grams of some drug and obtained a search warrant for appellant‘s residence.
{¶10} Green testified that Conley told him about the phone call and he told Conley to get a warrant. While Conley was getting the warrant, Green obtained keys for the
{¶11} Although they did not recover 14 grams, Conley testified that he listened to the rest of the recording after the search and heard appellant also mention a silver glasses case. Conley presumed that the other methamphetamine was in the glasses case, but the remaining drugs were never recovered. Conley was positive that Smith did not access the house and remove them prior to the search.
{¶12} Green testified that the apartment had been secured following the first search and the building was being watched. Nonetheless, Green was unable to say for certain that Smith did not get the other drugs. Green testified that they were not guarding the apartment and did not see Smith when they returned to watch the building. Green speculated that “14” could be code for a quarter of an ounce or seven grams, which was approximately what was found.
{¶13} After the warrant was executed and drugs were found, Conley interviewed appellant. Appellant told Conley that he sold drugs from his residence, that Smith transported drugs for him, and that he owed his dealer for some of the methamphetamine that the police recovered from his residence. Appellant identified his dealer and indicated that the dealer generally fronted him an ounce at a time. Appellant said he was just dealing drugs to supplement his income until he began receiving social security disability.
{¶14} Green testified that he had never met appellant before, but had been hearing his name from informants on the streets for a couple of months. Green had never
{¶15} The drugs recovered from the March 28th search tested positive as methamphetamine and weighed .661 grams. The drugs recovered from the April 1st search also tested positive as methamphetamine.
{¶16} Appellant testified in his own defense. He admitted a prior felony conviction for breaking and entering, and that he was on post-release control after serving a prison term. Appellant also testified to receiving social security disability.
{¶17} Appellant testified that he had a relationship with Smith, she was pregnant with his child, and he gave her a place to stay. Appellant was furious with Smith over her drug use because he did not want his child born addicted. Smith used drugs several times a day. Smith had 8 other children, but did not have custody of any of them due to her addiction. Appellant kept trying to hide drugs from Smith, but she would get abusive without them and even tried to stab him.
{¶18} Appellant was afraid that Smith had tried to manipulate him. She was seven months pregnant when appellant was arrested, but he had not heard from her since the April 1st conversation. Appellant heard rumors that she had been in trap houses and thought she may have been working for police to set him up. Appellant claimed Smith was trafficking drugs and he tried to stop it; she would bring bundles of clothes and bags to his house, though, and he was unable to search all of it. Appellant never turned Smith in because he didn‘t want to lose his child. Appellant said he hid the drugs rather than dispose of them because her drug supplier would have retaliated against her.
{¶20} Appellant testified there was some confusion over the summer of 2018 as to his supervision status. Appellant said that his supervisory officer said he was doing good, so he only needed to call or text once a month. And in June 2018, appellant signed paperwork for early release from supervision, but never heard back. Appellant kept calling and texting his supervisory officer through December 2018 without getting any response. When these incidents occurred in March and April of 2019, appellant purportedly was not sure if he was still under supervision.
{¶21} Appellant testified that the jury didn‘t hear the entire recording of his call with Smith. He said that during the first part of the call, Smith was begging him for drugs and asking him where they were because she was sick and needed to get high. Appellee only played the recording from the point where appellant finally gave in to Smith‘s demands. Appellant admitted he knew the conversation was being recorded and that he was speaking in code when he used “14” to refer to the drugs. Appellant meant that there was a quarter of an ounce in the house.
{¶22} Appellant denied telling law enforcement that he was using or selling drugs. However, appellant admitted telling police they were his drugs. He said he did it to protect Smith and his baby.
{¶23} Appellant testified that it was Smith who had the relationship with the drug supplier and had two children with him. The supplier would text Smith and tell her to come out front, and then drop off the drugs with her. The supplier also gave her the
{¶24} Conley admitted Smith was a known drug addict and drug dealer, but denied that she was an informant for him. Conley admitted that the drugs could have been Smith‘s and appellant was covering for her. Furthermore, Thoms admitted that they never questioned Smith about the methamphetamine during the initial search because they were not there because of her and she claimed she was just visiting.
{¶25} Appellant was charged by indictment with one count of aggravated trafficking in drugs (methamphetamine) pursuant to
{¶26} Appellant entered pleas of not guilty and filed a motion to suppress evidence seized from his apartment pursuant to a search warrant and custodial statements made by appellant. Appellee responded with a memorandum in opposition and the matter proceeded to evidentiary hearing on June 25, 2019. On June 27, 2019, the trial court overruled the motion to suppress by judgment entry.
{¶27} The matter proceeded to trial by jury and appellant was found guilty as charged. Appellant requested a pre-sentence investigation but the trial court proceeded to immediate sentencing. The trial court found Counts II and III merged for purposes of
{¶28} Appellant now appeals from the trial court‘s judgment of conviction and sentence.
{¶29} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
“I. APPELLANT WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL INTENTIONALLY ELICITED INFORMATION ABOUT APPELLANT‘S CRIMINAL HISTORY.”
“II. THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO ORDER A PRESENTENCE INVESTIGATION PRIOR TO IMPOSING SENTENCE.”
“III. CLEAR AND CONVINCING EVIDENCE DEMONSTRATES THAT THE RECORD DOES NOT SUPPORT MAXIMUM PRISON TERMS.”
ANALYSIS
I.
{¶30} In his first assignment of error, appellant argues he received ineffective assistance of counsel because defense trial counsel introduced evidence of his prior convictions. We disagree.
{¶32} Appellant asserts, though, that defense trial counsel negated these efforts altogether by asking Thoms about the violator-at-large warrant and whether appellant went to the probation office before the search upon cross-examination. Defense trial counsel also asked Thoms about his knowledge of appellant‘s post-release control history, and addressed the same topics with Bailey. Upon cross-examination of Green, defense trial counsel elicited testimony that Green “heard appellant‘s name on the street” from informants for several months. The cross-examination of Thoms prompted appellee to ask to approach the bench and to argue appellant opened the door to evidence of his criminal history. The trial court took a wait-and-see approach. Upon redirect, appellee asked about the officers about details of appellant‘s post-release control supervision.
{¶33} Appellant argues that defense trial counsel‘s “opening of the door” to evidence of his criminal history is ineffective assistance of counsel. To succeed on a claim of ineffectiveness, a defendant must satisfy a two-prong test. Initially, a defendant must show that trial counsel acted incompetently. See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, “a court 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
{¶34} “There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the wide range of professionally competent assistance.” Id. at 690.
{¶35} Even if a defendant shows that counsel was incompetent, the defendant must then satisfy the second prong of the Strickland test. Under this “actual prejudice” prong, the defendant must show that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A court may dispose of a case by considering the second prong first, if that would facilitate disposal of the case. State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989), citing Strickland, 466 U.S. at 697. We note that a properly licensed attorney is presumed competent. See Vaughn v. Maxwell, 2 Ohio St.2d 299, 209 N.E.2d 164 (1965); State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999).
{¶36} Further, reviewing courts must refrain from second-guessing strategic decisions and presume that counsel‘s performance falls within the wide range of reasonable legal assistance. State v. Merry, 5th Dist. Stark No. 2011CA00203, 2012-Ohio-2910, ¶ 42, citing State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Debatable trial tactics do not establish ineffective assistance of counsel. State v. Wilson, 2018-Ohio-396, 106 N.E.3d 806, ¶ 36 (5th Dist.), citing State v. Hoffner, 102 Ohio St.3d 358, 365, 2004-Ohio-3430, 811 N.E.2d 48 (2004), ¶ 45.
{¶38} Knowing that appellant would ultimately testify, therefore, may have led defense trial counsel to raise the issues of parole status and criminal history directly rather than risk the appearance of hiding it from the jury. In fact, some appellate courts have noted that it may be “customary practice for attorneys to disclose a witness’ prior felony convictions on direct,” to the extent that doing so is “preferential.” See, Merry, supra, 2012-Ohio-2910 at ¶ 49, citing State v. Kachovee, 4th Dist. Scioto No. 98CA2562, 1999 WL 38994 (Jan. 25, 1999), appeal not allowed, 85 Ohio St.3d 1486, 709 N.E.2d 1214 (1999).
{¶39} It was all but certain from the defense opening statement that appellant would choose to testify. Upon cross-examination, his criminal past would have been admissible pursuant to
{¶40} Furthermore, we note the trial court gave a limiting instruction regarding appellant‘s criminal history. T. 269. We presume the jury followed this instruction. See State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 23, citing State v. Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995); Pang v. Minch, 53 Ohio St.3d 186, 195, 559 N.E.2d 1313 (1990).
{¶41} We therefore find appellant did not receive ineffective assistance of trial counsel and his first assignment of error is overruled.
II.
{¶42} In his second assignment of error, appellant contends the trial court abused its discretion in refusing to order a pre-sentence investigation (P.S.I.) before imposing sentence. We disagree.
{¶43} The decision to order a presentence investigation generally lies within the sound discretion of the trial court if the court contemplates a prison term and not community control in sentencing upon a criminal offense. See, State v. Adams, 37 Ohio St.3d 295, 297, 525 N.E.2d 1361 (1988). A trial court‘s decision in this regard will therefore not be reversed absent an abuse of discretion. “A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or
{¶44} A P.S.I. is required only when the trial court sentences an offender to a term of community control. See, State v. Amos, 140 Ohio St.3d 238, 2014-Ohio-3160, ¶ 16 (O‘Neill, J. with three Justices concurring in judgment only) [“[a] trial court acts contrary to law when it imposes a sentence of one or more community-control sanctions on a felony offender without first ordering and reviewing a presentence investigation report.“].
Unless the defendant and the prosecutor in the case agree to waive the presentence investigation report, the court shall, in felony cases, order a presentence investigation and report before imposing community control sanctions or granting probation. The court may order a presentence investigation report notwithstanding the agreement to waive the report. * * * *
(Emphasis added).
{¶45} Appellant cites no authority supporting the underlying theory that the trial court should have ordered a P.S.I. when appellant was sentenced to a prison term, not community control. Community control was not considered.
{¶46} In the instant case, appellant was convicted of three offenses carrying a presumption of a prison term: two counts of aggravated drug possession pursuant to
{¶47} We find nothing in the record to establish that the trial court‘s actions were unreasonable, unconscionable, or arbitrary. Under the circumstances of the instant case, the trial court‘s decision to decline a P.S.I. was not an abuse of discretion.
{¶48} Appellant‘s second assignment of error is overruled.
III.
{¶49} In his third assignment of error, appellant argues his sentence is not supported by clear and convincing evidence. We disagree.
{¶50} We now review felony sentences using the standard of review set forth in
{¶51} Clear and convincing evidence is that evidence “which will provide in the mind of the trier of facts 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. “Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477.
{¶52} A trial court‘s imposition of a maximum prison term is not contrary to law as long as the court sentences the offender within the statutory range for the offense, and in so doing, considers the purposes and principles of felony sentencing set forth in
{¶53} Appellant was charged with one count of aggravated trafficking in drugs (methamphetamine) pursuant to
{¶54} At sentencing, the trial court specifically cited factors including appellant‘s criminal history, his self-serving statements and failure to take responsibility for his actions, and the status of his post-release control. Appellant continued to insist at sentencing that he was “set up” by Smith and bore no responsibility for the drugs in the house.
{¶56} While appellant may disagree with the weight given to these factors by the trial judge, appellant‘s sentence was within the applicable statutory range for a felony of the first degree and therefore, we have no basis for concluding that it is contrary to law.
{¶57} Appellant‘s third assignment of error is overruled.
CONCLUSION
{¶58} Appellant‘s three assignments of error are overruled and the judgment of the Licking County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, John, P.J. and
Wise, Earle, J., concur.