State v. McDanielState v. McDaniel
OPINION
{¶ 1} The defendant-appellant, Charles Homer McDaniel, Jr. (“McDaniel“), appeals the judgment of the Allen County Common Pleas Court classifying him as a sexual predator and sentencing him to serve an aggregate sentence of ten years in prison.
{¶ 2} On February 17, 2005, the Allen County Grand Jury indicted McDaniel on six charges. McDaniel committed the crimes as a juvenile, but was prosecuted as an adult after the Allen County Juvenile Court held a hearing and relinquished jurisdiction. Specifically, McDaniel was charged with four counts of telecommunications harassment, violations of R.C.
The trial court committed error prejudicial to the Defendant [sic] by sentencing the Defendant [sic] to non minimum[,] consecutive terms of imprisonment in violation of the Defendants [sic] rights pursuant to the
The trial court committed error prejudicial to the Defendant [sic] by sentencing the Defendant [sic] to non minimum[,] consecutive terms of imprisonment where the defendant has never served a prior prison term.
The defendant was deprived of his Constitutional Rights at the sexual predator determination hearing by ineffective assistance of his trial counsel.
The trial court committed error prejudicial to the Defendant [sic] by finding that the Defendant [sic] was a sexual predator against the manifest weight of the evidence.
{¶ 3} In the first assignment of error, McDaniel contends the trial court erred by sentencing him to non-minimum and consecutive sentences. The basis of this argument is without specific findings made by the jury or admissions made by the defendant, imposing a sentence greater than the statutory minimum violates the holding in Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403. In this case, the trial court imposed a sentence greater than the lowest possible sentence pursuant to R.C.
{¶ 4} Because the Supreme Court found R.C.
{¶ 5} In the third assignment of error, McDaniel contends he had the ineffective assistance of counsel during the sex offender classification hearing because counsel failed to present evidence or to request a psychiatric evaluation on McDaniel‘s behalf. Specifically, McDaniel contends:
[a]t no time did counsel for the Defendant [sic] ask or request an expert be appointed, nor did counsel attempt to present any evidence on these issues. Counsel also failed to point out any factors in the Defendant‘s [sic] social history (including his prior sexual victimization as a younger child) to the Court.
In response, the State contends McDaniel had effective counsel. The State argues in spite of any argument counsel could make, all of the evidence led the court to classify McDaniel as a sexual predator, and the trial court‘s determination would not have been different if counsel had “taken a different tact at the sexual predator hearing.”
{¶ 6} Because chapter 2950 of the Ohio Revised Code is civil in nature, an offender has no constitutional right to counsel. State v. Jordan, 6th Dist. No. L-02-1270, 2003-Ohio-3428, at ¶ 28 (citing State v. Furlong, 10th Dist. No. 00AP-637, 2001 WL 95870). However, R.C.
{¶ 7} “An appellate court may analyze the second prong of the Strickland test alone if such analysis will dispose of a claim of ineffective assistance of counsel on the ground that the defendant did not suffer sufficient prejudice.” Id. (citing State v. Loza (1994), 71 Ohio St.3d 61, 83, 641 N.E.2d 1082). “Prejudice entails a reasonable probability that, but for counsel‘s errors, the result of the trial would have been different.” Id. (citing State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph 3 of the syllabus).
{¶ 8} In evaluating the second prong of Strickland, we cannot find McDaniel was deprived of a fair sex offender classification hearing. The record reflects that McDaniel pled guilty to two counts of attempted rape. At the plea hearing, the State read the facts of the case into the record. Change of Plea Hearing Tr., Jan. 10, 2006, at 13-16. At the sex offender classification hearing, the court admitted three exhibits into evidence: a forensic evaluation, the forensic evaluator‘s curriculum vitae, and a pre-sentence investigation report (“PSI“). The State made a statement asking the court to classify McDaniel as a sexual predator, but it did not present additional evidence. The trial court asked both defense counsel and McDaniel if they had additional evidence to present, and both indicated they did not. Sentencing Tr., Jan 10, 2006, at 24:3-9. The trial court stated it had considered the PSI and the forensic evaluation, then it discussed each of the factors specified in R.C.
{¶ 9} Both the PSI and forensic evaluation contain evidence that McDaniel‘s family members physically and sexually abused him as a child, which McDaniel claims is a mitigating factor for the court to consider. Id. at Exs. A; AA. As we have previously stated, “[d]ebatable strategic and tactical decisions may not form the basis of a claim for ineffective assistance of counsel, even if a better strategy had been available.” State v. Utz, 3rd Dist. No. 3-03-38, 2004-Ohio-2357, at ¶ 12 (citing State v. Phillips, 74 Ohio St.3d 72, 85, 1995-Ohio-171, 656 N.E.2d 643). Additionally, counsel‘s decision to call or not call witnesses is a matter of strategy, and “absent a showing of prejudice, does not deprive a defendant of effective assistance of counsel.” Id. (citing State v. Williams (1991), 74 Ohio App.3d 686, 694, 600 N.E.2d 298). Here, defense counsel elected not to call any witnesses. Any evidence concerning McDaniel‘s social history was before the court, and McDaniel has not produced any other evidence. From the evidence submitted, which will be discussed more thoroughly below, we cannot conclude that the result of the hearing would have been different even if witnesses had been called. We cannot find McDaniel was prejudiced by defense counsel‘s strategy, and because McDaniel cannot prove the second prong of the Strickland test, we are not required to evaluate whether counsel‘s performance was deficient. The third assignment of error is overruled.
{¶ 10} In the fourth assignment of error, McDaniel contends that the manifest weight of the evidence does not support a sexual predator classification. A “sexual predator” is defined as a person who has “pleaded guilty to committing a sexually oriented offense that is not a registration-exempt sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses.” R.C.
(a) The offender‘s . . . age;
(b) The offender‘s . . . prior criminal or delinquency record regarding all offenses, including but not limited to, all sexual offenses;
(c) The age of the victim of the sexually oriented offense for which sentence is to be imposed . . .;
(d) Whether the sexually oriented offense for which sentence is to be imposed . . . involved multiple victims;
(e) Whether the offender . . . used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting;
(f) If the offender . . . previously has been convicted of or pleaded guilty to . . . a criminal offense, whether the offender . . . completed any sentence . . . imposed for the prior offense or act and, if the prior offense or act was a sexual offense or a sexually oriented offense, whether the offender . . . participated in available programs for sexual offenders;
(g) Any mental illness or mental disability of the offender . . .;
(h) The nature of the offender‘s . . . sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse;
(i) Whether the offender . . ., during the commission of the sexually oriented offense for which sentence is to be imposed . . . displayed cruelty or made one or more threats of cruelty;
(j) Any additional behavioral characteristics that contribute to the offender‘s . . . conduct.
{¶ 11} In examining the evidence and the statutory factors, the trial court must determine by clear and convincing evidence whether an offender is a sexual predator. R.C.
“[t]hat measure or degree of proof which is more than a mere `preponderance of the evidence,’ but not to the extent of such certainty as is required `beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Robertson, supra at ¶ 22 (quoting State v. Schiebel (1990), 55 Ohio St. 3d 71, 74, 564 N.E.2d 54 (citations omitted)). In this case, McDaniel contends the trial court‘s classification was against the manifest weight of the evidence. Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial to support one side of the issue rather than the other.” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678 N.E.2d 514. (citation omitted). A party is entitled to judgment in his favor if the fact-finder, in this case, the trial court, determines that “the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief.” Id. Because the trial court is in the better position to observe the witness’ demeanor and actions, its decisions should be afforded due deference. See State v. Thompson (1998), 127 Ohio App. 3d 511, 529, 713 N.E.2d 456.
{¶ 12} Our review of the record indicates there was clear and convincing evidence to support a sexual predator classification. The trial court considered the PSI and forensic evaluation. It inquired as to whether the State, defense counsel, or McDaniel had any evidence or argument. In reaching its conclusion, the trial court considered the following: as to R.C.
{¶ 13} After its discussion of the R.C.
{¶ 14} The judgment of the Allen County Common Pleas Court is affirmed in part, the sentence is vacated, and this cause is remanded to the trial court for additional proceedings.
Judgment Affirmed in Part, Sentence Vacated, and Cause Remanded.
Rogers, J., concurs in Judgment Only.
Shaw, J., concurs.