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State v. Zanders

Court of Appeals of Ohio, Eighth District

August 22, 2013

STATE OF OHIO PLAINTIFF-APPELLEE
v.
KELLY ZANDERS DEFENDANT-APPELLANT

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-560580

John P. Parker ATTORNEY FOR APPELLANT

Timothy J. McGinty Cuyahoga County Prosecutor BY: Kerry A. Sowul ATTORNEYS FOR APPELLEE

BEFORE: Boyle, P.J., Rocco, J., and EA. Gallagher, J.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, P.J.

(¶ l} Defendant-appellant, Kelly Zanders, appeals his sentence, raising four assignments of error:

I. The appellant was denied his right to counsel at the sentencing hearing in that counsel completely failed to advocate on his behalf and the appellant was denied counsel under Cronic, Strickland, and the Sixth and Fourteenth Amendments of the federal Constitution.
II. The imposition of the maximum sentence available was an abuse of discretion under Ohio law.
III. A de novo review requires the merger of all offenses in accordance with State v. Williams, 2012-Ohio-5699.
IV. The trial court's decision to impose consecutive sentences is not supported by the record.

(¶ 2} Finding no merit to the appeal, we affirm.

Procedural History and Facts

(¶ 3} In March 2012, Zanders was indicted on six counts after the state matched his DNA with evidence collected in connection with a reported rape that occurred in September 2009. According to Zanders, he engaged in consensual sex. He was indicted on two counts of kidnapping, violations of R.C. 2905.01(A)(2) and (4); three counts of rape, violations of R.C. 2907.02(A)(2); and one count of aggravated robbery, a violation of R.C. 2911.01(A)(3). All the counts carried specifications — the rape and kidnapping counts carried notice of prior conviction, a repeat violent offender specification, a sexual motivation specification, and a sexually violent predator specification.

(¶ 4} Zanders pleaded not guilty to the charges, and the matter proceeded to a bench trial. The trial judge ultimately found Zanders guilty on all six counts of the indictment and the repeat violent offender specifications, the sexual motivation specifications, and the notice of prior conviction. The state had dismissed all of the sexually violent predator specifications attached to the counts.

(¶ 5} Prior to sentencing, the trial court ordered a presentence investigation ("PSI") and a psychological evaluation by the court psychiatric clinic, including a mitigation of penalty report, for sentencing purposes.

(¶ 6} At the sentencing hearing, the trial judge merged Count 5 (kidnapping) with Count 6 (aggravated robbery); it further merged all of the rape counts into a single count. The state elected to proceed on the aggravated robbery and the rape counts contained in Count 3. The trial court then sentenced Zanders to ten years in prison on each of these counts and ten years in prison on the kidnapping count contained in Count 1. The court further imposed ten years in prison on the repeat violent offender specification attached to the rape count, ordering all counts to be served consecutive, for a total prison term of 40 years. This appeal now follows.

Ineffective Assistance of Counsel

(¶ 7} In his first assignment of error, Zanders argues that his trial counsel completely failed to advocate on his behalf at the sentencing hearing. According to Zanders, the PSI and the mitigation report revealed a myriad of grounds for a more lenient sentence, which included a "life filled with violence, severe substance abuse from age 11, " and a history of psychiatric treatment, especially during the time of the underlying offenses. Zanders contends that his trial counsel's failure to highlight these issues in favor of a more lenient sentence denied him of his constitutional right to effective assistance of counsel. We disagree.

(¶ 8} To establish ineffective assistance of counsel, a defendant must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for counsel's errors, the proceeding's result would have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and that strategy and tactical decisions exercised by defense counsel are well within the range of professionally reasonable judgment. Strickland at 699.

(¶ 9} While we acknowledge that Zanders's counsel did not emphasize the contents of the PSI or the mitigation report, it is clear that the trial judge reviewed these materials prior to sentencing Zanders. Indeed, the trial judge specifically requested the mitigation report from the court's psychiatric division to assist in sentencing Zanders. Thus, even assuming that the failure to specifically advocate the hardships evident in the PSI and mitigation report constitutes deficient performance, we find no prejudice to Zanders. Further, the record reveals that Zanders's trial counsel advocated for concurrent sentences in this case, emphasizing that the offenses all occurred on a single day. We cannot say that the outcome of the sentencing hearing would have been different had Zanders's trial counsel emphasized the hardships in Zanders's upbringing as well as his battle with alcohol and substance abuse.

(¶10} The first assignment of error is overruled.

Maximum and Consecutive Sentences

(ΒΆ11} In his second and fourth assignments of error, Zanders challenges the trial court's imposition of ...


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