[Cite as State v. Collier, 2011-Ohio-2791.]




                Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                 JOURNAL ENTRY AND OPINION
                                          No. 95572


                                         STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                      DOUGLAS COLLIER

                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                       Criminal Appeal from the
                                Cuyahoga County Court of Common Pleas
                                         Case No. CR-534548
       BEFORE: Stewart, J., Blackmon, P.J., and Sweeney, J.

       RELEASED AND JOURNALIZED: June 9, 2011

ATTORNEY FOR APPELLANT

Joseph C. Patituce
Patituce & Associates, LLC
26777 Lorain Road, Suite 503
North Olmsted, OH 44070


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:    T. Allan Regas
           Francine B. Goldberg
Assistant County Prosecutors
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, OH 44113




MELODY J. STEWART, J.:

       {¶ 1} Defendant-appellant, Douglas Collier, appeals from his sentence

entered on four counts of pandering sexually oriented matter involving a

minor, one count of importuning, and one count of possession of criminal

tools. He claims that counsel was ineffective for failing to rebut arguments

made in the state’s sentencing memorandum; that counsel failed to request
that the court merge the four counts of pandering; and that the court erred by

failing to justify the length of the sentence with reference to the sentencing

guidelines contained in R.C. 2929.11 and .12.

                                        I

       {¶ 2} Collier first argues that defense counsel was ineffective for failing

to respond to the state’s sentencing memorandum or request an extension of

time in which to file a response.

                                        A

       {¶ 3} A claim of ineffective assistance of counsel requires a defendant

to show that (1) the performance of defense counsel was seriously flawed and

deficient and (2) the result of the defendant’s trial or legal proceeding would

have been different had defense counsel provided proper representation.

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674.    This analysis requires two distinct lines of inquiry.          First, we

determine “whether there has been a substantial violation of any of defense

counsel’s essential duties to his client[.]” State v. Bradley (1989), 42 Ohio

St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. When making this

inquiry, we presume that licensed counsel has performed in an ethical and

competent manner. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 209 N.E.2d

164. Second, we determine whether “the defense was prejudiced by counsel’s

ineffectiveness.” Bradley, 42 Ohio St.3d at paragraph two of the syllabus.
Prejudice requires a showing to a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different. Id. at paragraph three of the syllabus.

                                      B

      {¶ 4} We are aware of no authority for the proposition that defense

counsel must file a sentencing memorandum, nor has Collier offered

precedent in support of that proposition. Crim.R. 32(A) requires the court, at

the time of sentencing, to afford both defense counsel and the prosecuting

attorney “an opportunity to speak.” When a sentence is not mandatory, the

right of allocution afforded by Crim.R. 32(A) serves to give the court

information relevant to determining the appropriate sentence. Defiance v.

Cannon (1990), 70 Ohio App.3d 821, 828, 592 N.E.2d 884. The manner in

which defense counsel can “speak” on sentencing matters is undefined and

left to the judgment of defense counsel as a matter of strategy. Some defense

attorneys, when practicable, choose to submit a sentencing memorandum that

permits a detailed argument on behalf of the defendant. But the filing of

sentencing memoranda is the exception rather than the rule — the vast

majority of defense attorneys choose to forego a sentencing memorandum and

speak directly to the court at sentencing. It follows that there is no duty for

defense counsel to file a sentencing memorandum, so Collier did not show

that counsel violated an essential duty by not filing a sentencing
memorandum and choosing instead to address sentencing issues at the time

of sentencing.

      {¶ 5} Collier   next complains that defense counsel should have

requested a continuance to rebut the state’s sentencing memorandum, filed

on the day before sentencing.

      {¶ 6} Reviewing courts are disinclined to second-guess matters of trial

strategy, State v. Tibbetts, 92 Ohio St.3d 146, 166-67, 2001-Ohio-132, 749

N.E.2d 226, and defense counsel’s decision to wait until sentencing to rebut

arguments made in a sentencing memorandum falls within the realm of

strategy. The question is whether defense counsel failed in an essential duty

in the manner in which he tried to rebut or counter the state.

      {¶ 7} In its sentencing memorandum, the state did not request a

specific prison term, but argued that Collier’s actions demonstrated the worst

form of the offense and showed him to be a sexual predator.               The

memorandum detailed how Collier, an instructor at a local performing arts

center, engaged in the long-term seduction of one of his minor students.

According to the state, Collier formed a strong relationship with the student,

taking him to dinner and driving him home from the arts center. The state

claimed this relationship culminated with Collier claiming that he needed to

prepare for a nude stage roll by offering the student cash to sit naked with

him in a hotel room. Collier told the student that this would allow him to
adjust to being nude in front of others. In email exchanges with the student,

Collier recognized that his actions were “dangerous” and told the student “you

can’t tell anyone lol! I could get prison for this.” The student told his school

guidance counselor, who in turn called the police.      The police executed a

search warrant on Collier’s telephone and computer. In addition to finding

images of child pornography depicting nude juveniles engaged in sexual acts,

the police found 162 pictures of male genitalia and several videos depicting

juveniles engaging in sexual activity.      Collier’s internet search history

showed that he frequented a website catering to older men/young boy

fantasies and that this website carried links to organizations like the North

American Man-Boy Love Association (“NAMBLA”) that specifically catered to

older men seeking young boys.

      {¶ 8} Defense counsel objected to the state’s recitation of facts,

particularly its characterization of Collier’s actions as “scripted” and

“planned.” Defense counsel noted that apart from Collier’s guilty plea to the

charges, there were no facts in the record to prove any other assertion made

in the state’s sentencing memorandum, including Collier’s alleged possession

of photographs and video.      Defense counsel noted that the state openly

contradicted its theory that Collier was a predator focused on juveniles by

pointing out that the website noted in the sentencing memorandum contained

a disclaimer stating: “We do not solicit or post child pornography.” Counsel
urged the court to look past the unsubstantiated claims made by the state

and focus on only the offenses to which Collier pleaded guilty, noting that

Collier was remorseful and that he had the support of family and friends who

stood by him.

         {¶ 9} Given the circumstances described, we have no basis for finding

that defense counsel’s response to the sentencing memorandum was so inept

as to constitute the violation of an essential duty to Collier. Defense counsel

strenuously argued that the sentencing memorandum contained unsupported

facts.    And it appears that he coordinated a letter-writing campaign for

Collier, as evidenced by the court’s statement to Collier that it “received a lot

of letters on your behalf.” Defense counsel noted that Collier suffered from

alcohol dependency that fueled his “bad behavior.” Finally, defense counsel

told the court that Collier had been changed by his crimes and that the

presentence investigation report showed that Collier was unlikely to reoffend.



         {¶ 10} Collier does not say exactly how defense counsel should have

responded in writing to the sentencing memorandum. The record shows that

defense counsel competently represented Collier, making an argument at

sentencing that directly addressed and countered assertions made in the

state’s sentencing memorandum. We thus have no basis for finding that a

written response to the sentencing memorandum would have served any
useful purpose. Defense counsel did not violate an essential duty by failing

to seek time in which to prepare a response to the sentencing memorandum.

                                       C

      {¶ 11} Collier next argues that defense counsel was ineffective for failing

to ask the court to merge the sentences for the four counts of pandering

obscenity involving a minor.

      {¶ 12} The pandering sexually oriented matter involving a minor counts

were charged under R.C. 2907.322(A)(5). That section states that no person,

having knowledge of the material involved, shall knowingly possess any

material that “shows a minor participating or engaging in sexual activity,

masturbation, or bestiality[.]” The counts referred to four different digital

images found on Collier’s cell phone. In its sentencing memorandum, the

state described the content of these images in terms that leave no doubt that

these were four different images. This resulted in four separate violations

of R.C. 2907.322(A)(5), so the counts do not merge. See State v. Geddes, 8th

Dist. No. 91042, 2008-Ohio-6489, ¶23; State v. Cummings, 9th Dist. No.

04CA0009-M, 2004-Ohio-6535, ¶10.        Collier, moreover has failed to offer

anything in the record to rebut a finding that the images were separate and

distinct, so he has failed to exemplify his claimed error. See App.R. 16(A)(7).

                                       D
      {¶ 13} Finally, Collier complains that defense counsel failed to raise the

issue of proportionality of sentences at sentencing.     He does not make a

specific argument as to why his sentence is disproportionate to his conduct,

but presumably believes that an eight-year sentence is excessively long in

relation to his conduct.

      {¶ 14} “The Eighth Amendment does not require strict proportionality

between crime and sentence. Rather, it forbids only extreme sentences that

are grossly disproportionate” to the crime.    State v. Weitbrecht (1999), 86

Ohio St.3d 368, 373, 715 N.E.2d 167, quoting Harmelin v. Michigan (1991),

501 U.S. 957, 1001, 111 S.Ct. 2680, (Kennedy, J., concurring in part and in

judgment).

      {¶ 15} Claims of ineffective assistance of counsel based on a failure to

object to the proportionality of a sentence are rarely, if ever, successful.

Ewing v. California (2003), 538 U.S. 11, 21, 123 S.Ct. 1179, 155 L.Ed.2d 108

(“outside the context of capital punishment, successful challenges to the

proportionality of particular sentences have been exceedingly rare.”) This is

because courts are vested with “full discretion” to impose a sentence within

the applicable statutory range.       State v. Foster, 109 Ohio St. 3d 1,

2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus.             The

statutory range is established by the General Assembly, and any sentence

falling within that range is presumptively valid.
      {¶ 16} Collier makes no claim that the statutory range itself is invalid,

so he is reduced to arguing that his sentence, which plainly falls within the

statutory range, was so unreasonable that counsel was ineffective for failing

to object to it.   This means Collier must show that counsel’s conduct fell

below an objective standard of reasonableness and that but for counsel’s

error, there is a reasonable probability the sentence would have been

different. See Strickland v. Washington (1984), 466 U.S. 668, 687-691, 104

S.Ct. 2052, 80 L.Ed.2d 674; State v. Simmons, 189 Ohio App.3d 532,

2010-Ohio-3412, 939 N.E.2d 869, ¶29; State v. Gabel, 8th Dist. No. 91788,

2009-Ohio-3735, ¶18.

      {¶ 17} The court was presented with facts which suggested that Collier

misused his position of trust and authority with the student to “groom” him

for his sexual advances. Collier’s emails importuning the student show that

he knew he “could get prison for this” and that his proposition to the student

was “a dangerous thing.” Yet he proceeded to act despite this risk. The

court could view this conduct, along with evidence that Collier possessed

obscene pictures of juveniles, as showing a broader pattern of predation.

Collier’s work at the performing arts center primarily involved working with

minors, and evidence that he visited websites featuring older men/younger

boys showed that he had more than a passing interest in minors.
      {¶ 18} As previously noted, defense counsel rebutted many of the

assertions made in the state’s sentencing memorandum.          Defense counsel

apparently solicited a number of statements by friends and family vouching

for Collier’s character. Finally, defense counsel argued that Collier’s actions

were fueled by alcohol and his own victimization of abuse as a child and that

Collier had deep remorse for his conduct.

      {¶ 19} Given these facts presented at sentencing, we cannot conclude

that any argument offered by counsel on the proportionality of maximum,

consecutive sentences would have affected the sentence imposed by the court.

 The court found that Collier “literally sought out a vulnerable child and

consciously manipulated that child for [his] own enjoyment.” The court also

found that Collier failed to accept the consequences of his actions, particularly

since Collier must have known that there were no circumstances under which

he would have been justified “to ask a child to get nude with [him] period.”

We simply cannot say that anything defense counsel might have argued on

the proportionality of sentences would have made the least impact on the

court’s determination to punish Collier. Collier thus fails to show that there

is a reasonable probability that counsel’s objection to the proportionality of

the sentence would have impacted the court’s sentencing discretion in any

way. No ineffective assistance of counsel has been shown.

                                            II
       {¶ 20} In his second assignment of error, Collier complains that the

court failed to make statutory findings to justify maximum, consecutive

sentences, arguing that the decision in State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470, rejecting outlawing the fact-finding

mandated by former R.C. 2929.14(E)(4) had effectively been overruled by the

United States Supreme Court in Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct.

711, 172 L.Ed.2d 517.

       {¶ 21} We reject this argument on authority of State v. Hodge, 128 Ohio

St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, in which the Ohio Supreme Court

held that Ice does not revive R.C. 2929.14(E)(4). Id. at paragraph two of the

syllabus.

       Judgment affirmed.

       It is ordered that appellee recover of appellant its costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.                The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.           Case remanded to

the trial court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE

PATRICIA ANN BLACKMON, P.J., and
JAMES J. SWEENEY, J., CONCUR
