[Cite as State ex rel. v. McClarin, 2019-Ohio-5343.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                         :

                 Plaintiff-Appellee,                   :
                                                             No. 108225
                 v.                                    :

DEANGELO M. MCCLARIN,                                  :

                 Defendant-Appellant.                  :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 26, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-18-631858-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Denise J. Salerno, Assistant Prosecuting
                 Attorney, for appellee.

                 Mark A. Stanton, Cuyahoga County Public Defender, and
                 Paul Kuzmins, Assistant Public Defender, for appellant.


EILEEN T. GALLAGHER, P.J.:

                   Defendant-appellant, Deangelo M. McClarin, appeals his sentence

and claims the following two errors:

        1. The trial court erred in failing to inquire about exculpatory evidence
        that was noted by defense counsel but never discussed in detail.
      2. Trial counsel was ineffective when he noted that exculpatory
      evidence existed but never discussed that evidence with the trial court
      prior to sentencing.

              We find no merit to the appeal and affirm. Inquiry and discussion at

the sentencing hearing regarding the nature and scope of potentially exculpatory

evidence was unnecessary since the trial court discovered the evidence during an in

camera review of confidential records and was familiar with them.

                       I. Facts and Procedural History

              McClarin was charged with ten counts of rape and four counts of

kidnapping. The rape counts all included furthermore clauses pursuant to R.C.

2907.02(A)(1)(b), alleging that each of the four victims were under 13 years of age

at the time of the offenses. The kidnapping counts all included sexual motivation

specifications, alleging that McClarin committed the offenses with a sexual

motivation. The offenses allegedly occurred between June 1, 2018, and July 31,

2018, while the victims were six, seven, nine, and ten years old.

              During the discovery phase of the case, McClarin filed a subpoena

duces tecum and a motion for an in camera inspection of records from the Cuyahoga

County Department of Child and Family Services (“CCDCFS”). CCDCFS filed a

motion to quash the subpoena with a request for a protective order, or in the

alternative, for the trial court to conduct an in camera inspection. The court

conducted an in camera review of the records, identified “potentially exculpatory”

records, and ordered the state to provide copies of “potentially exculpatory
evidence” to McClarin. (Journal entry Dec. 11, 2018.) Thereafter, McClarin pleaded

guilty to seven counts of rape with the age enhancements removed. The remaining

charges were nolled.

              At sentencing, the state reminded the court that, as originally

indicted, McClarin was facing a potential life sentence without the possibility of

parole if convicted at trial. Pursuant to the plea agreement, McClarin was facing a

maximum 77 years in prison, if the court imposed maximum prison terms on every

count and ran them consecutively. Rather than ask for a maximum consecutive

sentence on all counts, the state recommended “something closer to a maximum

consecutive sentence for each child.” (Tr. 42.) Each rape conviction carried a

maximum 11-year sentence. The state recommended that the court impose a

consecutive sentence for each of the four victims for an aggregate 44-year prison

term. (Tr. 42.)

              The court received a victim impact statement from the victims’

mother and mitigating statements from McClarin’s aunt and trial lawyer. The

victims’ mother informed the court that she felt betrayed and that she and the

children have been “left * * * with trust issues.” (Tr. 55.) McClarin’s aunt told the

court that McClarin was a “father figure” to the victims. McClarin’s lawyer stated

that McClarin was sorry for any harm he caused the children and understands the

children will probably never be the same. (Tr. 59.)

              McClarin spoke on his own behalf and admitted to the court that his

conduct was wrong, but claimed he was “going through a lot of things” and “had
nothing to look forward to.” (Tr. 62.) He further explained that he would not have

been with the family “if mother didn’t give me genital herpes.” (Tr. 64.) He “didn’t

feel right being with another woman and putting them at risk and getting herpes,”

so he stayed with “that family.” (Tr. 65.) McClarin also stated that he had been

taking drugs and was “not actually focusing on what is in front of me.” (Tr. 65.)

               Counsel reminded the court that even though “potentially

exculpatory evidence” was discovered during the in camera inspection, McClarin

chose to plead guilty rather than force the children to go through trial. Counsel

stated, in relevant part:

      [A]s this Court knows, * * * counsel for the State of Ohio and I
      painstakingly went through those records and we saw some interesting,
      some exculpatory evidence regarding — some issues regarding the
      children, but Mr. McClarin was not going to drag these kids into the
      courtroom for a trial. He wasn’t going to do that and I think that’s
      another factor we’re asking the Court to take into consideration at the
      time of sentencing.

(Tr. 63.)

               While considering factors in mitigation of prison at the sentencing

hearing, the court stated, in relevant part:

      When I look at the less serious conduct in this matter, I certainly think
      that the fact that you accepted responsibility, that you, as your lawyer
      said, stepped up and said whatever your excuse was, that you were
      involved in this and that you did this, and you say putting a six, seven,
      nine, and ten year old on a trial in front of a jury, in front of strangers
      to talk about this abuse is something that this Court considers. And the
      fact that you took responsibility is what [your lawyer] is asking me to
      look at and to show mercy in this matter.
(Tr. 69.) After considering all relevant sentencing factors, the court sentenced

McClarin to ten years on each of the seven rape counts, ordered several counts to be

served concurrently and other counts to be served consecutively for an aggregate

40-year prison term. McClarin now appeals his sentence.

                              II. Law and Analysis

                     A. Potentially Exculpatory Evidence

              In the first assignment of error, McClarin argues the trial court erred

in failing to inquire about the exculpatory evidence referenced by defense counsel at

the sentencing hearing since counsel did not discuss the nature of the exculpatory

evidence in detail. He contends the court’s failure to ask about the details of the

evidence was an abuse of discretion because it prevented the court from properly

considering the purposes and principles of sentencing set forth in R.C. 2929.11 and

the seriousness and recidivism factors outlined in R.C. 2929.12.

              We review felony sentences under the standard set forth in R.C.

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 16. R.C. 2953.08(G)(2) provides, in relevant part:

      The appellate court may increase, reduce, or otherwise modify a
      sentence that is appealed under this section or may vacate the sentence
      and remand the matter to the sentencing court for resentencing. The
      appellate court’s standard for review is not whether the sentencing
      court abused its discretion. The appellate court may take any action
      authorized by this division if it clearly and convincingly finds either of
      the following:

      (a) That the record does not support the sentencing court’s findings
      under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4)
      of section 2929.14, or division (I) of section 2929.20 of the Revised
      Code, whichever, if any, is relevant;

      (b) That the sentence is otherwise contrary to law.

              In State v. Jones, 2018-Ohio-498, 105 N.E.3d 702 (8th Dist.), this

court, sitting en banc, held that, pursuant to Marcum at ¶ 23, the scope of appellate

review includes examination of the record to determine if the record clearly and

convincingly supports the trial court’s findings under R.C. 2929.11 and 2929.12. In

other words, R.C. 2953.08(G)(2) requires an appellate court to modify or vacate a

sentence if it finds, by clear and convincing evidence, that the record does not

support the findings required by relevant sentencing statutes, including R.C.

2929.11 and 2929.12. Id. at ¶ 9.

              Although a trial court must consider the purposes and principles of

felony sentencing set forth in R.C. 2929.11 and the sentencing factors set forth in

R.C. 2929.12, these are not fact-finding statutes. State v. Franklin, 8th Dist.

Cuyahoga No. 107482, 2019-Ohio-3760, ¶ 41; State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470, ¶ 42. The trial court is not required to make any

specific findings on the record regarding its consideration of the relevant sentencing

factors and principles. State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951

N.E.2d 381, ¶ 31. Consideration of the appropriate factors can be presumed unless

the defendant affirmatively demonstrates otherwise. State v. Jones, 8th Dist.

Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13, citing State v. Stevens, 1st Dist. Hamilton

No. C-130278, 2013-Ohio-5218, ¶ 12.
               The record in this case shows that the trial court considered all the

required sentencing factors and principles. Prior to imposing sentence, the trial

court acknowledged on the record that the sentence “must comply with the purposes

and principles of R.C. 2929.11(A)” and articulated all of the purposes and principles

of felony sentencing on the record, including the need to punish McClarin using the

minimum sanctions necessary to accomplish that purpose and the fact that the

sentence should be commensurate with, and not demeaning to, the seriousness of

his conduct. (Tr. 67.) In considering the seriousness factors set forth in R.C.

2929.12(B), the court observed that McClarin’s conduct of having vaginal and anal

intercourse with young children was very serious and caused unimaginable,

psychological harm. The court also commented that McClarin’s position as a father

figure living in the children’s home was a “serious factor” because their mother

trusted him. (Tr. 68.) And, the court noted that McClarin assaulted the children in

their bedrooms while they were sleeping and told them not tell anyone. (Tr. 68-69.)

The court further stated, in relevant part:

      What I’m struggling with is I have four victims, four kids, and their ages
      are six, seven, nine, and ten. I’m going to fashion a sentence that is
      appropriate based on their age, based on the conduct involved, the
      vaginal, anal, the fellatio, the conduct that the victims had described to
      social workers, to the detective, to the prosecutors, and I’m going to
      fashion a sentence that punishes you under the code section that fits
      the purposes and principals [sic] of sentencing.

(Tr. 70.)

               As previously stated, the court also considered it a mitigating factor

that McClarin accepted responsibility for his actions and pleaded guilty rather than
forcing the victims to go through trial. Therefore, the record shows that the court

thoroughly considered the purposes and principles of felony sentencing required by

R.C. 2929.11 and the seriousness and mitigating factors outlined in R.C. 2929.12.

               Although the court did not ask defense counsel about the nature or

scope of the “potentially exculpatory evidence” discovered during the in camera

inspection, the docket shows that the court conducted the in camera review of the

records, discovered the potentially exculpatory evidence, and ordered that copies of

the potentially exculpatory portions of the records be provided to defense counsel.

Therefore, the court was aware of the potentially exculpatory nature of the evidence.

Furthermore,    McClarin     pleaded   guilty,   admitted   his   wrongdoing,    and

acknowledged the serious harm he caused the victims in open court, which suggests

that the exculpatory nature of the evidence was not significant. Although the court

acknowledged McClarin’s desire to protect the victims from further harm by

pleading guilty and avoiding trial, it did not mention the exculpatory evidence,

despite being aware of it, probably because it was not particularly exculpatory. In

any case, the court was not required to make findings based on that evidence, the

record shows that the court was aware of the “potentially exculpatory evidence” and

that the court considered the relevant sentencing factors required by R.C. 2929.11

and 2929.12.

               Therefore, the first assignment of error is overruled.

                     B. Ineffective Assistance of Counsel
               In the second assignment of error, McClarin argues his Sixth

Amendment right to the effective assistance of counsel was violated because his trial

counsel failed to discuss details of the exculpatory evidence on the record at the

sentencing hearing.

               To establish ineffective assistance of counsel, the defendant must

demonstrate that counsel’s performance fell below an objective standard of

reasonable representation and that he or she was prejudiced by that deficient

performance. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). Prejudice is established when the defendant demonstrates “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694.

               McClarin argues his trial counsel’s performance was deficient

because he failed to discuss the exculpatory evidence that was produced during the

in camera inspection. He suggests the court was unaware of the evidence and that,

had counsel discussed the exculpatory evidence at the sentencing hearing, it would

have mitigated his sentence.

               However, as previously stated, the court conducted the in camera

review of confidential records, discovered the “potentially exculpatory evidence,”

and ordered that it be provided to McClarin. Because the trial court was aware of

the evidence and its “potentially exculpatory” nature, counsel may have reasonably

concluded that it was not necessary to discuss the details of the evidence. Moreover,
McClarin fails to demonstrate that the outcome of the proceedings would have been

any different if his trial counsel had discussed the details of the “potentially

exculpatory evidence.” In other words, McClarin cannot demonstrate he was

prejudiced by his trial counsel’s decision to not discuss the evidence at the

sentencing hearing.

               Therefore, the second assignment of error is overruled.

               Judgment affirmed.

      It is ordered that appellee recover from appellant 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

common pleas court to carry this judgment into execution.          The defendant’s

conviction having been affirmed, any bail pending 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.



EILEEN T. GALLAGHER, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR
