State v. McElrathState v. McElrath
ROBERT C. LOGSDON, Attorney for Appellee
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
{¶ 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,
{¶ 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 tо 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
{¶ 9} When multiple prison terms are imposed, Ohio law presumes those sentences will run concurrently rather than consecutively.
(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 , or2929.18 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 demonstrаtes that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 10} “[W]here a trial court properly makes the findings mandated by
{¶ 11} McElrath acknowledges that the trial court made the requisite findings for consecutive sentences. However, he challenges the trial court‘s findings that consеcutives 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,
{¶ 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 sеvere injuries. They also
{¶ 14} McElrath was unemployed at the time of his arrest. He lacked a high-school diploma, had never bеen 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
{¶ 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 consecutivе sentencing during the plea hearing, he appears to acknowledge that
{¶ 19} Wе 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 dоes not reveal what his attorney told him before the plea hearing.
{¶ 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.
{¶ 23} McElrath‘s third assignment of error states:
APPELLANT WAS SUBJECT TO THE INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 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 coopеrative” 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
III. Conclusion
{¶ 27} The judgment of the Clark County Common Pleas Court is affirmed.
EPLEY, P.J. and HUFFMAN, J., concur.