State v. McElrath

2024 Ohio 2475

• Court: Ohio Court of Appeals
• Decided: June 28, 2024
• Docket: 2023-CA-45
• Status: Published

Opinion

[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

FRANK M. BATZ, Attorney for Appellant

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 -2-

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, -3-

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 -4-

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, -5-

¶ 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 -6-

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 -7-

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 -8-

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. -9-

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. -10-

{¶ 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 -11-

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.

EPLEY, P.J. and HUFFMAN, J., concur.