State v. McNeil

2020 Ohio 3202

• Court: Ohio Court of Appeals
• Decided: June 5, 2020
• Docket: 2019-CA-51
• Status: Published

Opinion

[Cite as State v. McNeil, 2020-Ohio-3202.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

: STATE OF OHIO : : Appellate Case No. 2019-CA-51 Plaintiff-Appellee : : Trial Court Case No. 2018-CR-745 v. : : (Criminal Appeal from DIAMOND L. McNEIL : Common Pleas Court) : Defendant-Appellant :

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OPINION

Rendered on the 5th day of June, 2020.

JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, 120 West Second Street, Suite 1717, Dayton, Ohio 45402 Attorney for Defendant-Appellant

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FROELICH, J. -2-

{¶ 1} Diamond L. McNeil pled guilty in the Clark County Court of Common Pleas

to an amended charge of attempted felonious assault, a third-degree felony. The trial

court imposed a maximum sentence of 36 months in prison and ordered her to pay $1,800

in restitution and court costs. McNeil appeals from her conviction, claiming that the trial

court improperly considered certain evidence regarding the incident in determining her

prison sentence. For the following reasons, the trial court’s judgment will be affirmed.

{¶ 2} According to the record, on August 19, 2018, McNeil was employed at a

Speedway gas station in Springfield. At approximately 12:47 a.m., McNeil contacted the

police about an intoxicated woman, Lesley Moore, who was bothering customers outside

the store and refused to leave. The police responded within a few minutes and advised

Moore to leave, which she did at approximately 12:53 a.m.

{¶ 3} Within ten minutes, Moore returned to the Speedway. Rather than calling

the police again, McNeil called two individuals she knew, who came to the Speedway.

At approximately 1:18 a.m., the three argued with Moore outside the store’s front entrance

and then physically assaulted her, kicking and punching her head and body. When

Moore followed the group inside the store, Moore was knocked down, and McNeil

dragged Moore out by her hair and kicked her. Moore walked away from the Speedway

at approximately 1:23 a.m.

{¶ 4} At 3:18 a.m., different police officers were dispatched to another location,

where they encountered Moore, who appeared to have been severely beaten and was

confused and making threatening statements. Moore was transported by ambulance to

the hospital. Due to her injuries, Moore was then transported by CareFlight to Miami -3-

Valley Hospital, where she was placed on a ventilator and feeding tube for several days.

Moore suffered a non-displaced jaw fracture and serious bruising and swelling to her eye.

{¶ 5} A grand jury subsequently indicted McNeil for felonious assault, a second-

degree felony. On May 19, 2019, McNeil entered a plea to an amended charge of

attempted felonious assault. The State indicated at sentencing that it was reducing the

charge to allow the case to be resolved without Moore’s having to testify. After a Crim.R.

11 plea colloquy, the trial court accepted McNeil’s guilty plea to attempted felonious

assault, and it ordered a presentence investigation (PSI).

{¶ 6} The trial court conducted a sentencing hearing on June 4, 2019. The State

asked for a prison sentence, citing the severity of the Moore’s injuries and McNeil’s lack

of remorse. Defense counsel argued that McNeil was remorseful, that Moore’s behavior

contributed to the offense, albeit not to the extent that it raised a defense, and that McNeil,

who was 19 years old, had no history of similar behavior and no prior criminal record.

Defense counsel noted that McNeil’s Ohio Risk Assessment Survey (ORAS) score was

very low. Defense counsel argued that community control was appropriate and that

McNeil would do well on community control. McNeil, speaking on her own behalf,

apologized, said she “make[s] mistakes,” and “ask[ed] for another chance.”

{¶ 7} Prior to imposing sentence, the trial court indicated that it had reviewed the

PSI. The PSI included, among other things, McNeil’s description of the offense;

information about McNeil’s family background, employment, health, finances, and

criminal history; the indictment; the bill of particulars; police reports and probable cause

affidavits; McNeil’s drug and alcohol assessment; the ORAS report; the plea agreement;

a victim impact statement from Moore’s mother; and copies of text messages regarding -4-

the incident. The PSI also included two CDs: one contained Speedway’s surveillance

videos between midnight and 2:00 a.m. and the other contained Moore’s medical records,

photographs of Moore at the hospital, a social media video of the incident, and videos of

McNeil’s police interview.1

{¶ 8} Prior to imposing sentence, the trial court responded to McNeil’s oral

statement, saying:

You participated in the beating of a drunk woman to the point that

she had to be CareFlighted to the hospital with severe injuries, and you

want me to accept that as a mistake of a 19 year old. You called the police

the first time she was bothering the customers. The second time you called

for family and friends, and they showed up and you let them in. They

prepared to go out and fight with you; and the three of you went out,

confronted this woman who was still highly intoxicated; and when in her

drunken stupor she decided she was going to follow the three of you back

in after you knocked her down outside, you beat her up. Then you grabbed

her by the hair and drug her outside of the customer area, back into the

parking lot, and then you punched her and kicked her while she was down.

Tell me how that’s a mistake. That’s a rhetorical question. I don’t

need an answer to that.

All the things that your attorney put on are probably quite true, that

1 On September 10, 2019, this appellate court asked the trial court to clarify what exhibits it had considered. The trial court responded that it had reviewed the CD containing the Speedway surveillance videos, as well as “part of the victim’s medical [record] in order to verify [the] extent of the victim’s injuries, and the photos, social media video and the defendant’s interview.” -5-

the victim wouldn’t go away. Even when confronted with three younger

people, she was too drunk to understand her own danger. Everything she

said about mitigation, I believe the State took into consideration when they

amended the obvious felonious assault to an attempted felonious assault.

I’ve gone through this presentence report which, as indicated, did

include a victim-impact statement from the victim’s mother and videos of the

incident. I’ve reviewed everyone’s statements. I note in reporting

substance abuse, you indicate only using marijuana, starting when you

were 15 or 16, daily use; and then denied any alcohol or other drug use.

* * * I’m also reviewing the information from McKinley Hall and their

assessment where you stated to them you drink about a liter a day.

{¶ 9} The trial court told McNeil that it had considered the record, oral statements,

written documents (including defense counsel’s sentencing memorandum), the purposes

and principles of sentencing, and the statutory sentencing factors. The court found that

Moore had suffered serious physical harm and that McNeil did not show genuine remorse.

The court stated that McNeil was 19 years old and had no prior criminal record, but

emphasized the seriousness of Moore’s injuries. The court commented, “I guess what

struck me the most, watching the videos, was the total lack of regard for another person’s

human dignity.” The court noted that McNeil had no military service record and that she

had a low ORAS score. The court then imposed a maximum sentence of 36 months in

prison. It also ordered her to pay restitution of $1,800 to Moore and court costs.

{¶ 10} McNeil appeals from her conviction, claiming that the trial court “abused its

discretion when it reviewed evidence of the alleged incident for purposes of sentencing -6-

when Appellant previously pled guilty to a lesser offense resulting in an inappropriate

sentence.” McNeil focuses on the court’s review of the surveillance video footage of the

assault.

{¶ 11} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under

R.C. 2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it

may vacate the sentence and remand for resentencing, only if it “clearly and convincingly”

finds either (1) that the record does not support certain specified findings or (2) that the

sentence imposed is contrary to law. State v. Huffman, 2d Dist. Miami No. 2016-CA-16,

2017-Ohio-4097, ¶ 6.

{¶ 12} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-

Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial

court must consider the statutory policies that apply to every felony offense, including

those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d

500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio

St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

{¶ 13} McNeil does not specifically argue that her 36-month sentence was

unsupported by the record or contrary to law. Rather, she asserts that, “[w]hen an

individual enters a guilty plea, it is not appropriate for the court to review evidence of the

incident in question prior to sentencing.” We disagree. -7-

{¶ 14} We have repeatedly stated that, for purposes of sentencing, a court “is not

confined to [considering] the evidence that strictly relates to the conviction offense

because the court is no longer concerned * * * with the narrow issue of guilt.” State v.

Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 14 (2d Dist.); see, e.g.,

State v. Waggoner, 2d Dist. Montgomery No. 28453, 2020-Ohio-212, ¶ 12. Sentencing

courts may consider, for example, “hearsay evidence, facts related to charges that were

dismissed pursuant to a plea bargain, and allegations contained in a PSI report.” State

v. Bautista, 2d Dist. Clark No. 2015-CA-74, 2016-Ohio-5436, ¶ 12, citing State v.

Clemons, 2d Dist. Montgomery No. 26038, 2014-Ohio-4248, ¶ 8. In light of this

precedent, we find no error in the trial court’s consideration of the surveillance video from

the Speedway, the social media video of the incident, and other evidence concerning the

assault at issue in this case.

{¶ 15} To support her argument, McNeil cites to Layne v. Ohio Adult Parole Auth.,

97 Ohio St.3d 456, 2002-Ohio-6719, 780 N.E.2d 548. In Layne, the Ohio Supreme Court

addressed the Adult Parole Authority’s use of then-new guidelines for determining the

range of time that a prisoner should serve before being released. Under the guidelines,

the parole authority relied on a combination of two factors: the seriousness of an

offender’s criminal offense and the offender’s risk of recidivism. Three prisoners who

had pled to reduced charges sued, claiming that the parole authority improperly assigned

an offense category score based on the alleged criminal activity, not the offenses for

which they were convicted. Id. at ¶ 24.

{¶ 16} On review, the Ohio Supreme Court held that, “[i]n any parole determination

involving indeterminate sentencing, the Adult Parole Authority must assign an inmate the -8-

offense category score that corresponds to the offense or offenses of conviction.” Id. at

syllabus. The Court further emphasized, however, that “the APA, when considering an

inmate for parole, still retains its discretion to consider any circumstances relating to the

offense or offenses of conviction, including crimes that did not result in conviction, as well

as any other factors the APA deems relevant.” (Citations omitted.) Id. at ¶ 28.

{¶ 17} McNeil’s reliance on Layne is misplaced. Layne does not govern the

circumstances before us, i.e., the imposition of sentence, nor is it dispositive as to whether

the trial court improperly considered surveillance video of the incident at Speedway. The

trial court was required to impose a sentence within the statutory range for the offense to

which McNeil pled (attempted felonious assault), which it did, and the trial court could

consider any “circumstances relating to the offense“ in determining an appropriate

sentence within that authorize range for attempted felonious assault. The trial court not

err at sentencing when it considered the surveillance video and the other evidence

concerning the assault.

{¶ 18} McNeil’s assignment of error is overruled.

{¶ 19} The trial court’s judgment will be affirmed.

TUCKER, P.J. and DONOVAN, J., concur.

Copies sent to:

John M. Lintz Kristin L. Arnold Hon. Richard J. O’Neill