[Cite as State v. McCree, 2011-Ohio-4114.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
STATE OF OHIO                                 :   William B. Hoffman, P.J.
                                              :   Sheila G. Farmer, J.
                         Plaintiff-Appellee   :   Julie A. Edwards, J.
                                              :
-vs-                                          :   Case No. 10CA133
                                              :
                                              :
MAURICE MCCREE                                :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                           Criminal Appeal from Richland
                                                   County Court of Common Pleas Case
                                                   No. 2010-CR-441

JUDGMENT:                                          Affirmed

DATE OF JUDGMENT ENTRY:                            August 17, 2011

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JAMES J. MAYER, JR.                                R. JOSHUA BROWN
Prosecuting Attorney                               32 Lutz Avenue
Richland County, Ohio                              Lexington, Ohio 44904

BY: JILL M. COCHRAN
Assistant Richland County Prosecutor
38 South Park Street
Mansfield, Ohio 44902
[Cite as State v. McCree, 2011-Ohio-4114.]


Edwards, J.

        {¶1}    Defendant-appellant, Maurice McCree, appeals his conviction and

sentence from the Richland County Court of Common Pleas on one count of

possession of a deadly weapon while under detention. Plaintiff-appellee is the State of

Ohio.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}    On July 9, 2010, the Richland County Grand Jury indicted appellant on

one count of possession of a deadly weapon while under detention in violation of R.C.

2923.131(B), a felony of the first degree. The indictment alleged that appellant, while

serving a sentence for aggravated murder or murder at Mansfield Correctional

Institution, possessed a deadly weapon while under detention. At his arraignment on

August 5, 2010, appellant entered a plea of not guilty to the charge.

        {¶3}    Subsequently, a jury trial commenced on October 28, 2010. During voir

dire, the following discussion took place on the record:

        {¶4}    “MR. HARPER: Judge, before we proceed, my client has indicated that he

believes that because he is in shackles and in prison garb that he has been unduly

prejudiced by the fact that he is.

        {¶5}    “THE COURT: Let me say that he is in prison for aggravated murder, for a

weapons offense of some sort, carrying a concealed weapon or something.

        {¶6}    “MR. BISHOP: Weapon under disability.

        {¶7}    “THE COURT: Showing he has had weapons even after he was convicted

of disabling offenses. He is charged with weapons in prison. Everyone knows he is in

prison. The entire context of the proceedings takes place in prison. I have not put a
Richland County App. Case No. 10CA133                                                  3


stun belt on him, because I thought he would be behaving himself, so I kept the security

requirement to a minimum consistent with the type of a person he is. And I just can’t

put people at risk by putting him in civilian clothes and trying to create some type of a

subterfuge he is no longer in prison when he is serving an indefinite sentence for

aggravated murder. So we are not going to fool anybody by doing that.            Security

requires that I follow the precautions that we have, so that would be my response.

      {¶8}   “MR. HARPER: Okay.” Transcript at 35-36.

      {¶9}   Following the conclusion of the evidence and the end of deliberations, the

jury, on October 28, 2010, found appellant guilty of the charge. Pursuant to a

Sentencing Entry filed on November 3, 2010, the trial court sentenced appellant to

seven years in prison. The trial court ordered such sentence to be served consecutively

to his Cuyahoga County aggravated murder case.

      {¶10} Appellant now raises the following assignments of error on appeal:

      {¶11} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-

APPELLANT WHEN IT FAILED TO CONDUCT AN EVIDENTIARY HEARING ON THE

SHACKLING OF APPELLANT DURING TRIAL IN VIOLATION OF THE FIFTH AND

FOURTEENTH AMENDMENTS.

      {¶12} “II.   APPELLANT       RECEIVED       INEFFECTIVE       ASSISTANCE       OF

COUNSEL.       TRIAL COUNSEL FAILED TO FILE ANY PRETRIAL MOTIONS

REQUESTING APPELLANT APPEAR IN COURT WEARING CIVILIAN CLOTHES

AND WITHOUT SHACKLES.”
Richland County App. Case No. 10CA133                                                     4


                                                 I

       {¶13} Appellant, in his first assignment of error, argues that the trial court erred

in failing to conduct an evidentiary hearing on the shackling of appellant during trial. We

disagree.

       {¶14} Courts have long recognized a defendant's right to the “physical indicia of

innocence” under the Due Process Clause of the Fourteenth Amendment to the United

States Constitution. Kennedy v. Cardwell (C.A.6, 1973), 487 F.2d 101, 104, certiorari

denied (1974), 416 U.S. 959, 94 S.Ct. 1976. “No one should be tried while shackled,

absent unusual circumstances.” State v. McKnight (2005), 107 Ohio St.3d 101, 837

N.E.2d 315 at ¶ 219, citing Illinois v. Allen (1970), 397 U.S. 337, 344, 90 S.Ct. 1057.

Imposing the indicia of guilt upon a defendant is an “inherently prejudicial” practice

which “should be permitted only where justified by an essential state interest specific to

each trial.” Ruimveld v. Birkett (2005), 404 F.3d 1006, 1013, citing Holbrook v. Flynn

(1986), 475 U.S. 560, 568-569, 106 S.Ct. 1340. However, the determination of whether

to use restraints must be left to the discretion of the trial court because the court must

weigh the defendant's right to a fair and impartial trial against the need to protect the

people involved in the judicial process and prevent the defendant's escape. The court is

in the best position to assess the defendant's conduct inside and outside the courtroom

to make this determination. Woodards v. Cardwell, (C.A. 6 1970), 430 F.2d 978, 982,

and State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26 at ¶ 79. The

need to prevent violence or escape must be particularized, articulated on the record,

and specific to appellant's conduct at this particular trial. Lakin v. Stine (2005) 431 F.3d

959, 965, 544 U.S. 622, 633, citing Deck v. Missouri (2005), 544 U.S. 622, 125 S.Ct.
Richland County App. Case No. 10CA133                                                        5


2007, 2015. A trial court also has a duty to determine whether there is a “less prejudicial

but adequate means of providing security.” Id. at 964. There is no requirement that a

trial court conduct a hearing on whether or not a defendant should be shackled provided

that the record discloses the reasoning for the use of restraints. See State v. Carter

(1977), 53 Ohio App.3d 125, 132, 373 N.E.2d 622.

       {¶15} On appeal, the appellate court presumes there was prejudice to the

appellant and determines whether there was sufficient justification for the use of

restraint and there was no less drastic alternative available. Kennedy v. Cardwell,

supra, at 107. The appellate court will not reverse the trial court's decision, however,

unless it determines the trial court abused its discretion. State v. Woodards (1966), 6

Ohio St.2d 14, 23, 215 N.E.2d 568, certiorari denied (1966), 385 U.S. 930. “[S]ound

discretion has long meant a discretion that is not exercised arbitrarily or willfully, but with

regard to what is right and equitable under the circumstances and the law, and directed

by the reason and conscience of the judge to a just result. Langnes v. Green, 282 U.S.

531, 534.” Woodards v. Cardwell, supra. at 982.              Even though the decision is

discretionary, the trial court must state the facts it considered on the record to enable

the appellate court to review the decision. State v. Morgan (1992), 84 Ohio App.3d 229,

231-232, 616 N.E.2d 941, and State v. Carter (1977), 53 Ohio App.2d 125, 132, 372

N.E.2d 622.

       {¶16} In the case sub judice, the trial court did not conduct a hearing on the

issue of shackling but, as is stated above, articulated its reasons on the record for the

use of the same. We find that appellant was not prejudiced by having to wear shackles

since the jury was already aware that appellant was a prisoner in that the crime with
Richland County App. Case No. 10CA133                                                  6


which he was charged was possession of a deadly weapon while under detention.

Therefore, any error would be harmless error. See State v. Garrett, Richland App. No.

03-CA-49, 2004-Ohio-2231. Furthermore, appellant was currently incarcerated for

aggravated murder with a firearm specification and was charged in the case sub judice

with having a deadly weapon while in prison. As noted by appellee, the charge in the

case sub judice “illustrat[es] that even after being told he was disabled from possessing

weapons, the [a]ppellant continued to obtain weapons and commit violent acts against

others and not even the strict constraints imposed in prison could prevent him from

gaining control of weapons.” We find that the trial court was within its sound discretion

to choose to protect the jury and others in the courtroom by restraining appellant, who

the court reasonably believed posed a security risk.

      {¶17} Furthermore, we find that the trial court did not err in failing to hold a

hearing on the issue of shackles because such a hearing was unnecessary because

appellant did not contest the relevant information. See State v. Bell (June 6, 1997),

Scioto App. No. 96CA2472, 1997 WL 317425. Appellant did not contest that he was

incarcerated for aggravated murder with a firearm at the Mansfield Correctional

Institution when the charge in the case sub judice arose.

      {¶18} Finally, assuming, arguendo, that the trial court erred in allowing appellant

to appear in shackles, we find such error harmless based on the overwhelming

evidence. At trial, testimony was adduced that appellant and another inmate were

“squaring off” in the middle of the floor. Officer Jack Swartz, a corrections officer,

testified that appellant and the other inmate “were both in a fighting stance having an

altercation.” Transcript at 179. When the officer walked towards appellant, he observed
Richland County App. Case No. 10CA133                                                       7


that appellant had two shanks strapped to his wrists. Officer Garcia, another corrections

officer, testified that when he arrived on the scene, he saw appellant holding two shanks

in his hands. He described the shanks as “a steel piece and had two handles on it.”

Transcript at 198. When Officer Garcia, who had pulled out a canister of pepper spray,

told appellant to drop the weapons, appellant initially refused to do so. When the officer

got closer to appellant and told him again to drop the weapons, appellant “started to

untie one.” Transcript at 198. After unwrapping the other shank, appellant was cuffed.

Evidence also was presented at trial that appellant, at the time of the offense in this

case, was serving a sentence out of Cuyahoga County for aggravated murder with a

firearm specification.

       {¶19} Based on the foregoing, we find that the trial court did not err in failing to

hold an evidentiary hearing on the issue of shackling and in ordering that appellant

remain shackled.

       {¶20} Appellant’s first assignment of error is, therefore, overruled.

                                                 II

       {¶21} Appellant, in his second assignment of error, argues that his trial counsel

was ineffective in failing to file a pretrial motion requesting that appellant appear in court

wearing civilian clothes and without shackles.

       {¶22} A claim of ineffective assistance of counsel requires a two-prong analysis.

The first inquiry is whether counsel's performance fell below an objective standard of

reasonable representation involving a substantial violation of any of defense counsel's

essential duties to Appellant. The second prong is whether Appellant was prejudiced by

counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838, 122
Richland County App. Case No. 10CA133                                                       8

L.Ed.2d 180; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, State v.

Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

       {¶23} In determining whether counsel's representation fell below an objective

standard of reasonableness, judicial scrutiny of counsel's performance must be highly

deferential. Bradley, 42 Ohio St.3d at 142, 538 N.E.2d 373. Because of the difficulties

inherent in determining whether effective assistance of counsel was rendered in any

given case, a strong presumption exists that counsel's conduct fell within the wide range

of reasonable, professional assistance. Id.

       {¶24} In order to warrant a reversal, Appellant must additionally show he was

prejudiced by counsel's ineffectiveness. This requires a showing that counsel's errors

were so serious as to deprive the defendant of a fair trial; a trial whose result is reliable.

Strickland 466 U.S. at 687, 694. The burden is upon the defendant to demonstrate that

there is a reasonable probability that but for counsel's unprofessional errors, the result

of the proceeding would have been different. Id .; Bradley, supra at syllabus paragraph

three. A reasonable probability is a probability sufficient to undermine confidence in the

outcome. Strickland, supra; Bradley, supra.

       {¶25} As is stated above, during voir dire, appellant’s trial counsel did raise, to

no avail, the issue of appellant appearing in court in shackles while in prison garb. As is

stated above, we find that the trial court did not err in ordering that appellant remain

shackled. Based on our disposition of appellant’s first assignment of error, appellant’s

second assignment of error is, therefore overruled.
Richland County App. Case No. 10CA133                                             9


       {¶26} Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed.




By: Edwards, J.

Hoffman, P.J. and

Farmer, J. concur

                                               ______________________________



                                               ______________________________



                                               ______________________________

                                                           JUDGES

JAE/d0615
[Cite as State v. McCree, 2011-Ohio-4114.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
MAURICE MCCREE                                   :
                                                 :
                       Defendant-Appellant       :       CASE NO. 10CA133




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed

to appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
