[Cite as State v. Lindsey, 2019-Ohio-1550.]




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

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 28025
                                                    :
 v.                                                 :   Trial Court Case No. 2017-CR-1616
                                                    :
 WILLIAM CLIFTON MCKINNEY                           :
 LINDSEY                                            :   (Criminal Appeal from
                                                    :    Common Pleas Court)
         Defendant-Appellant                        :


                                               ...........

                                              OPINION

                              Rendered on the 26th day of April, 2019.

                                               ...........

MATHIAS H. HECK, JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio
45385
      Attorney for Defendant-Appellant

                                              .............
                                                                                        -2-



HALL, J.

       {¶ 1} William Clifton McKinney Lindsey appeals from his conviction and sentence

on one count of child endangering and one count of evidence tampering.1

       {¶ 2} Lindsey advances two assignments of error. First, he contends the trial court

erred in imposing maximum and consecutive prison sentences. Second, he alleges

ineffective assistance of counsel based on his attorney allowing him to plead guilty.

       {¶ 3} The charges against Lindsey stemmed from injuries sustained by his

girlfriend’s 23-month-old child while at home in Lindsey’s care. The child suffered life-

threatening burns over almost all of his body as a result of being scalded by hot water in

a bathtub. When the child’s mother returned home and saw the burns, she took him to an

area hospital. The child later was airlifted to a hospital in Columbus, Ohio. The following

day, two detectives interviewed Lindsey in a hospital conference room. He was advised

of his Miranda rights, signed a waiver-of-rights form, and spoke to the detectives. After

the interview, Lindsey left the conference room on his own without being arrested.

       {¶ 4} Lindsey later was indicted on two counts of child endangering, one count of

felonious assault, and one count of evidence tampering. Following an unsuccessful

suppression motion, he pled guilty to all of the charges with no agreement as to

sentencing. The trial court found that merger applied to both counts of child endangering

and felonious assault, and the State elected to proceed to sentencing on one count of

child endangering. The trial court imposed an eight-year prison sentence on that count. It


1 Lindsey also pled guilty to a second count of child endangering and one count of
felonious assault. At sentencing, the trial court merged these offenses into the second-
degree-felony child endangering count referenced above as allied offenses of similar
import.
                                                                                         -3-


also imposed a thirty-month prison sentence for evidence tampering. Finally, it ordered

the two sentences to be served consecutively and made the findings necessary for

consecutive sentences.

       {¶ 5} In his first assignment of error, Lindsey contends the trial court “erred in

imposing the maximum consecutive sentence.” After reciting black-letter law governing

sentencing, Lindsey’s entire substantive argument is as follows:

              In the present case, it is submitted that the record in this matter does

       not support a maximum and consecutive sentence in this matter. The record

       is not sufficient to order such a sentence and the termination entry does not

       set forth sufficient basis for the aforementioned sentence being either

       maximum or consecutive. While it is acknowledged that there was not a

       maximum sentence imposed on the Tampering with Evidence count, it is

       submitted that this does not change the analysis in this matter.

              Given the foregoing, it is respectfully requested that this Court

       reverse the decision of the trial court and remand for resentencing.

(Appellant’s brief at 8-9).

       {¶ 6} Upon review, we find Lindsey’s assignment of error to be unpersuasive. He

fails to raise any particular sentencing error for us to address. He simply makes the

assertion that the record does not support a maximum and consecutive sentence (while

conceding that one of his two sentences was not a maximum sentence) without

explanation of how or why that is so. In particular, he does not address the evidence in

relation to any of the statutory seriousness or recidivism factors or the specific statutory

findings required for consecutive sentences. Nevertheless, we have reviewed the record
                                                                                         -4-


ourselves and find no basis for reversing Lindsey’s sentence.

       {¶ 7} Under R.C. 2953.08(G)(2), we may vacate or modify a sentence only if we

determine by clear and convincing evidence that the record does not support the

sentence or that it is otherwise contrary to law. Here Lindsey does not dispute the

lawfulness of his sentence. It is within the authorized statutory range, and the trial court

considered the statutory principles and purposes of sentencing and the statutory

seriousness and recidivism factors, thereby making the sentence “authorized by law.”

See State v. Folk, 2d Dist. Montgomery No. 27375, 2017-Ohio-8105, ¶ 5-7.

Consequently, we may vacate or modify Lindsey’s lawful sentence only if we find by clear

and convincing evidence that the record does not support it.

       {¶ 8} At sentencing, the trial court explained its decision as follows:

               [The victim] was 23 months old at the time of his burn injuries. He

       suffered first and second degree burns over 80 percent to 90 percent of his

       body.

               The Court has reviewed a letter from Detective Sergeant J.R. Myers

       from the Centerville police department in the matter. I find that letter to be

       very significant. I’ve also reviewed a letter from [M.A.] and a letter from Dr.

       Kevin Johnson, who was involved in [the victim’s] care and treatment at the

       Dayton Children’s Hospital. I’ll return to Dr. Johnson’s letter in a moment.

               The Court has also reviewed photographs of [the victim’s] extensive

       burn injuries. By all accounts, the burn injuries suffered by [the victim] were

       life threatening. In fact, he was Care Flighted from Children’s Medical

       Center in Dayton to the Nationwide Children’s Hospital Burn Center in
                                                                                   -5-


Columbus, Ohio. [The victim] spent 99 days in the hospital for care related

to his burn injuries.

       [The victim] has endured several surgeries and will require additional

surgeries as he grows older to deal with the burn injuries and his skin

condition. There will be additional skin grafting procedures that will be

necessary for [the victim] as he grows older.

       [The victim] was in extremely critical condition when he arrived at

Nationwide Children’s Hospital. Evidence of that is established by the fact

that he, and I’m using the term found in the medical records, coded some

seven times in the hospital. Coding meaning that he in essence was at a

point where he was expressing a lack of vital sign[s], or coding in the sense

of potentially dying at that point.

       [The victim] now at his very young age has heart issues and he takes

heart medication directly relating to his burn injuries. As a testament to the

insidious nature of these injuries and the psychological impact that they’ve

had on this victim, [the victim] now calls himself ugly because of the

condition of his skin.

       [The victim] was horribly exposed to scalding hot water in a bathtub.

The pictures of his injuries which are profound shows something akin to a

lobster who’s been in a cooking pot.

       Importantly, by his own admission to the police, Mr. Lindsey did not

take [the victim] immediately to the hospital upon discovering the burn

issues. Initially, Mr. Lindsey reported to the police that he had called 911 for
                                                                                 -6-


information regarding [the victim’s] care and then he later said he called a

nurse hotline. Both of these claims proved to be untrue.

       The burn injuries were so profound that some parts of [the victim’s]

skin were found on the wall of the bathtub. The onesie that [the victim] was

wearing before being placed in the bathtub was torn off his body, being

ripped down the middle. The evidence is clear from the condition of that

onesie that the snaps were not used to remove it from [the victim’s] body.

       I said I would return to Dr. Johnson. Dr. Johnson was a treating

physician for [the victim], and I was struck by his comments that, and I’m

quoting, “The majority of patients with burns of this extent do not survive,”

and again quoting, “Living after severe extensive burns means a life of pain,

disfigurement, and disability.” Dr. Johnson went on to say that, again

quoting, “The burn was so deep and severe that all of his, [the victim’s],

pigment was gone.”

       Dr. Johnson indicated that while he still practices medicine, this case

has caused him to, these are his words, never work in an ED, which means

emergency department, again.

       Dr. Jonathan Groner, the trauma medical director of the Center for

Pediatric Trauma Research at Nationwide Children’s Hospital, has

indicated that in his experience of over 20 years in dealing with the burn

injuries of minor children, this was one of the worst cases he has ever seen.

       Ohio Revised Code Section 2929.12(B) and the seriousness and

recidivism factors set forth therein speaks to the Court considering, number
                                                                                          -7-


       one, the physical or mental injuries suffered by the victim of the offense

       being exacerbated because of the physical or mental condition or age, let

       me repeat that, or age, of the victim. The victim of the offense suffering

       serious physical and psychological harm as a result of the offense, that’s

       number two, and number three, the offender’s relationship with the victim

       facilitating the offense. All of these apply to make this case more serious

       from a sentencing perspective.

               With this backdrop, the Court imposes the following sentences. On

       Count II, the offense of endangering children, a felony of the second degree,

       a sentence of eight years CRC.

               On Count IV, the offense of tampering with evidence, a term of 30

       months CRC to run consecutively with the sentence on Count II. I

       specifically find that consecutive sentences are necessary to punish Mr.

       Lindsey and consecutive sentences in this case are not disproportionate to

       the seriousness of his conduct and to the danger he poses to the public.

               And at least two of the multiple offenses in this case were committed

       as part of one or more course of conduct and the harm caused by two or

       more of the multiple offenses was so great and unusual that no single prison

       term could adequately reflect the seriousness of Mr. Lindsey’s conduct.

               The total prison sentence that I am levying in this case against Mr.

       Lindsey is 10 years and six months CRC.

(Tr. 81-85).

       {¶ 9} The trial court’s termination entry noted that it had considered the appropriate
                                                                                           -8-


statutory sentencing factors. (Doc. # 198). The entry also included the statutory findings

set forth above for the imposition of consecutive sentences. (Id.).

       {¶ 10} In our view, the record fully supports the trial court’s analysis and its

sentencing decision. Lindsey nearly burned to death a 23-month-old child in his care,

causing horrific pain and suffering and permanent physical and psychological injury. He

failed to get medical care for the child and then lied to investigators, falsely claiming that

he had called 911 and a nursing hotline. We see no basis on which to conclude that the

record clearly and convincingly fails to support either of the individual sentences the trial

court imposed.

       {¶ 11} The record also fully supports the findings that consecutive sentences were

necessary to punish Lindsey and that they were not disproportionate to the seriousness

of his conduct and the danger he posed to the public. In addition, particularly absent any

argument from Lindsey, we cannot say the record clearly and convincingly fails to support

a finding that the two offenses for which he was sentenced—child endangering and

evidence tampering—were committed as part of one course of conduct and the harm

caused by these offenses was so great and unusual that no single prison term adequately

could reflect the seriousness of his conduct. The course of conduct at issue involved

scalding the child in the bathtub and, according to a bill of particulars, then removing or

concealing items of evidentiary value, “including soiled crib bedding and/or mattress pad

and/or a soiled and torn cotton bodysuit and/or a wet and/or soiled disposable diaper.”

(Doc. # 121).

       {¶ 12} Having found no grounds for vacating or modifying Lindsey’s sentence

under R.C. 2953.08(G)(2), we overrule his first assignment of error.
                                                                                         -9-


       {¶ 13} In his second assignment of error, Lindsey alleges ineffective assistance of

counsel based on his attorney’s allowing him to plead guilty. He claims counsel should

have told him to plead no contest rather than guilty. He argues that counsel’s failure to do

so could not have been a strategic decision because he pled guilty as charged, without

any sentencing concessions, thereby gaining nothing from the plea. Therefore, he argues

that deficient performance by counsel has been established.

       {¶ 14} With regard to prejudice, Lindsey contends the guilty plea prejudiced him

because it precludes challenging the trial court’s ruling on his suppression motion.

Although Lindsey does not appear to dispute the trial court’s finding that he was not “in

custody” when detectives questioned him at the hospital, he suggests that suppression

nevertheless may have been warranted because portions of a Miranda waiver form were

not read to him, one or more promises were made to him, and he did not understand his

rights. (Appellant’s brief at 10). Lindsey claims the trial court failed to address these

issues, which would have resulted in his suppression motion being sustained.

       {¶ 15} Finally, Lindsey raises a second ineffective assistance of counsel claim, and

alleges a due process violation, based on his attorney’s telling him that “he did not have

the right to testify in his own defense” at the suppression hearing. (Id. at 11).

       {¶ 16} To establish a claim of ineffective assistance of counsel, a defendant must

demonstrate both that trial counsel’s conduct fell below an objective standard of

reasonableness and that the errors were serious enough to create a reasonable

probability that, but for the errors, the result of the trial or proceeding would have been

different. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
                                                                                         -10-


        {¶ 17} Here the record does not reflect what counsel advised Lindsey about

pleading guilty as opposed to no contest or whether counsel told him that pleading guilty

would not preserve the suppression issue for appeal. Because the record on appeal does

not show what counsel told Lindsey about these issues, he cannot demonstrate deficient

performance. See State v. McGlown, 2d Dist. Montgomery No. 25434, 2013-Ohio-2762,

¶ 17. For all we know, Lindsey could have disregarded advice to plead no contest and

elected to plead guilty, accept responsibility, and hope for sentencing leniency from the

court. But even if we assume, arguendo, that counsel provided deficient representation

by failing to advise Lindsey to plead no contest and failing to explain all ramifications of

pleading guilty, we see no resulting prejudice, because the record fails to demonstrate

any basis for challenging the trial court’s suppression ruling.

        {¶ 18} The suppression-hearing transcript supports the trial court’s finding that

Lindsey was not in custody when detectives interviewed him in a hospital conference

room. (Doc. # 26 at 4). He came into the room voluntarily and left on his own without

being arrested after a roughly hour-long interview. A door to the room was closed but not

locked. (Tr. 13-29). At the outset of the interview, the detectives did read Lindsey his

Miranda rights as a precaution. He indicated that he understood the rights and told the

detectives that he had 12 years of schooling. (Id. at 20-21). A waiver-of-rights form was

shown to Lindsey but not read to him. Lindsey signed the waiver form and proceeded with

the interview. (Id. at 21, 34-35). Although he complains on appeal about the detectives

not reading the waiver form to him, they had no obligation to do so during a non-custodial

interview where Miranda did not even apply.2


2   Parenthetically, we note that even where Miranda does apply, the critical issue is
                                                                                           -11-


       {¶ 19} As for alleged “promises” being made to Lindsey, the only thing the

detectives told him was that he would not be arrested that day no matter what he said.

(Id. at 30). This was in fact true, and it was not the sort of “promise” that renders a

suspect’s statements involuntary or subject to suppression. The record also provides no

support for Lindsey’s suggestion that he did not understand his Miranda rights, which

were not required to be explained to him anyway. Because we see absolutely no basis

for suppressing Lindsey’s statements to police during a non-custodial interview, we find

no resulting prejudice even if counsel failed to tell him that a guilty plea would forfeit the

suppression issue for appeal.

       {¶ 20} Finally, we reject Lindsey’s claim based on his attorney’s telling him that he

could not testify at the suppression hearing. After the State rested, defense counsel

advised the trial court as follows: “Your Honor, my client has asked to testify. I told him

he could not testify. I said it wasn’t in his best interest to testify at this hearing. I don’t

know if I need to put that on the record. But he has acquiesced to my legal advice.” (Tr.

40). Moments later, defense counsel addressed the issue again, stating: “* * * Mr. Lindsey

had requested to testify during the course of this motion to suppress hearing. It was my

advice to him that it was not necessary or prudent in terms of strategy at this time, and

he has acquiesced to my legal advice.” (Id. at 41).

       {¶ 21} Read as a whole, counsel’s explanation makes clear that he did not prohibit

Lindsey from testifying. Rather, counsel advised Lindsey that it would be unwise and



whether a defendant is advised of his rights and indicates his understanding of them. If a
defendant speaks freely after being advised of his rights and indicating his understanding
of them, as occurred here, then a waiver may be inferred. State v. Murphy, 91 Ohio St.3d
516, 519, 747 N.E.2d 765 (2001).
                                                                                        -12-


unnecessary to testify. On the record before us, Lindsey cannot demonstrate that this

advice fell below an objective standard of reasonableness because we have no way of

knowing what he would have said if he had testified. For the same reason, he cannot

establish any prejudice resulting from counsel’s advice. Accordingly, we see no ineffective

assistance of counsel. The second assignment of error is overruled.

      {¶ 22} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                     .............



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


Copies sent to:

Mathias H. Heck, Jr.
Michael P. Allen
Jay A. Adams
Hon. Michael W. Krumholtz
