State v. Burch

[Cite as State v. Burch, 2013-Ohio-4256.]

STATE OF OHIO, JEFFERSON COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )
) CASE NO. 12 JE 28
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
SAMANTHA BURCH, )
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 10CR164.

JUDGMENT: Affirmed.

APPEARANCES:
For Plaintiff-Appellee: Attorney Jane Hanlin
Prosecuting Attorney
16001 State Route 7
Steubenville, Ohio 43952

For Defendant-Appellant: Attorney Bernard Battistel
P.O. Box 803
Steubenville, Ohio 43952

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro

Dated: September 18, 2013
[Cite as State v. Burch, 2013-Ohio-4256.]
VUKOVICH, J.

{¶1} Defendant-appellant Samantha Burch appeals after pleading no contest
to child endangering in the Jefferson County Common Pleas Court. First, she argues
that the trial court abused its discretion in sentencing her to the maximum of thirty-six
months in prison for this felony of the third degree. Then, she contends that her
counsel rendered ineffective assistance by recommending that she plead no contest
rather than proceeding to a jury trial. For the following reasons, these arguments are
without merit, and the trial court’s decision is affirmed.
STATEMENT OF THE CASE
{¶2} On November 19, 2010, the police raided a methamphetamine-making
house in Wells Township. During the investigation, the police learned that appellant’s
one year old child was in the area and in need of medical attention. The child was
found with severe burns to her private areas and inner thighs. She was immediately
transported to the local hospital and then transferred to a Columbus hospital where
she stayed for nearly three weeks.
{¶3} The mother reported to the first hospital that the child had diaper rash,
but the physicians stated that the injuries were burns, possibly caused by a liquid or
substance. Besides the burns and the resulting infection, the child was severely
dehydrated and her urine tested positive for methamphetamine. The child had also
bruises on her arm and back and behind her left ear, which did not appear
accidental.
{¶4} Appellant was arrested and later indicted for child endangering under
R.C. 2919.22(A), which applies when a parent creates a substantial risk to the health
or safety of their child by violating a duty of care, protection, or support. The offense
was a third degree felony under R.C. 2919.22(E)(2)(c) because the child suffered
serious physical harm.
{¶5} On September 12, 2012, appellant pled no contest to the charge. The
prosecution recited a statement of the facts, and the court found appellant guilty.
The child’s paternal grandmother and appellant spoke at sentencing. The
grandmother testified that upon the child’s admission to the hospital, she was badly
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burned, bleeding, underweight, undernourished, and in severe pain. (Tr. 20-21, 23).
The child had an infection, and she screamed as her wounds were scrubbed. The
grandmother also explained that the child had to be placed on a feeding tube. (Tr.
20).
{¶6} Upon release from the hospital, the child went to live with this paternal
grandmother, who was later granted custody. (Tr. 25, 31). The grandmother testified
that the mother was entitled to visit with the child two hours per week but stopped
visiting in November of 2011 and does not call her. (Tr. 25-26). The grandmother
never saw the mother shed a tear over the child. (Tr. 26). She disclosed that when
she once asked appellant to change the child’s diaper, the mother refused. (Tr. 25).
{¶7} The child still suffers pain from her injury, especially during the required
scar massages. (Tr. 23, 27). The grandmother explained that the child will need to
undergo “slicing” as she grows because her scar will not grow with her skin. (Tr. 27-
28). The grandmother also pointed out that the child had previously been
hospitalized as a result of her handling a stripping solvent while under appellant’s
care. As a result of this exposure, the child was put on a ventilator and underwent a
surgery requiring her to have an open abdomen for several days. (Tr. 29, 38).
{¶8} Appellant exercised her right of allocution. She stated that she did
change the child’s diaper once when the grandmother asked. (Tr. 40-41). With
regards to visitation, she stated that it was hard to find a ride, and she complained
that the grandmother started making comments that she was the mother now. (Tr.
41). She also stated that the child’s father brings the child to her every couple
months since she stopped visiting at the grandmother’s house. (Tr. 41-42). She
claimed that the grandmother stopped responding to her calls so she calls the child’s
father instead. (Tr. 42-43). Appellant stated that she received her GED several
months ago but had no certificate because it costs extra. (Tr. 43). She then
revealed that she has a ten-week old child. (Tr. 43).
{¶9} As for the incident at issue, she claimed that five or six days prior to the
incident, a babysitter noticed diaper rash but thought it cleared up. When this
babysitter was too sick to care for the child, she left her daughter with a man (who
 -3-

was the father of her nephew and who she called her child’s “uncle”) while she went
to work at a strip bar and so that she could abuse methamphetamine. (Tr. 46, 55,
60). She stated that she and others had suspicions that this man was abusive to her
daughter in the past as her daughter had previously suffered a burn from a space
heater and a bruise on her check while with him. (Tr. 46-47). Still, it seems she left
her daughter with him for days. (Tr. 46).
{¶10} She stated that she retrieved the crying child one night and slept with
the child that night. She claimed that she noticed the injuries when she changed the
child’s diaper the next day and the police then “thankfully” arrived. (Tr. 48). She
estimated that she had not changed her daughter’s diaper in three days as the child
had been with others. (Tr. 48).
{¶11} She denied telling the officers that she put petroleum jelly over the
burns two days before the raid and insisted that it was diaper rash or the old space
heater burn that she had been treating and that the burns were new and must have
happened while at the “uncle’s” house. (Tr. 61). She stated that she did not recall
telling the officers that she could not bathe the child for the past two days because
the water hurt the injuries. (Tr. 61-62).
{¶12} She conceded that she was on methamphetamine at the time, which
makes a person “not comprehend what really is going on in life.” (Tr. 46, 53, 58, 62).
She admitted that it “somewhat” makes one not take care of their child but claimed
that she would still know that her child needed diapers for instance. (Tr. 53). When
asked why she did not immediately seek help for the child’s injuries, she claimed, “I
had no way to call for anybody. I had no idea where I was. I had only been to that
Dillonvale home that one time and that was that night.” (Tr. 54).
{¶13} Appellant also stated that she did not remember disclosing to officers
that she did not bring the child to the hospital because they would call Children’s
Services again. (Tr. 53-54, 62). She did remember telling the officers that she
believed the man she left the child with may have been physically or sexually abusing
the child (even before she last left the child there). (Tr. 59, 62). She also admitted
 -4-

that she left her child with him even though she knew he was also “bad on meth.”
(Tr. 62).
{¶14} Regarding the child’s prior hospitalization, appellant explained that they
were visiting her roofer friend who had a drink bottle on his floor containing roofing
solvent. (Tr. 49). The child dumped the bottle on herself and in her mouth. (Tr. 50).
She was asked if roof stripper was a common ingredient in making
methamphetamine to which she responded that she did not know. (Tr. 52).
{¶15} Photographs depicting horrific injuries to the child’s private areas and
inner thighs were submitted into the record. (Tr. 22-23). The prosecutor stated that
these photographs were more disturbing than in any other child endangering case
that has come through the court. (Tr. 64). The prosecutor suggested that the burns
were caused by the child sitting in methamphetamine-making fluids. (Tr. 66). She
also noted that this one-year old child had two life-threatening experiences within a
few months’ time due to the mother’s lack of regard and stated that roof stripper is a
common ingredient in meth labs. (Tr. 66). Finally, she opined that the mother is
callous and not remorseful. (Tr. 67).
{¶16} The defense noted that the defendant was 21 years old when this
happened, her only prior conviction was for disorderly conduct, and her only juvenile
issues were with truancy. (Tr. 68-69). Defense counsel opined that appellant
seemed sincere in expressing remorse. (Tr. 69). Counsel also pointed out that a
community-based corrections facility had expressed that appellant was appropriate
for placement there. (Tr. 70). Counsel asked the court to recognize how appellant
has tried to better herself since the arrest by getting her GED, staying out of trouble,
and stopping her drug use. The defense urged the court to consider a non-prison
sanction. (Tr. 70).
{¶17} Appellant then spoke again, expressing that she loves her daughter and
that she cries herself to sleep every night because of what happened to her daughter
(also complaining that the person who did this is “out running free”). (Tr. 71-73). She
admitted that she “messed up as being a mother” but stated that she has changed
and learned her lesson. (Tr. 71-72). She claimed that she has been sober “going on
 -5-

three years” as she was going to her sister’s drug court meetings and attending other
group meetings. (Tr. 72). (Her estimate must have been mistaken as it had been
less than two years since the offense.)
{¶18} The court opined that the facts do not support her claim that the injuries
happened the night before the raid as some of the injuries were beginning to heal
and do not support appellant’s claim that she did not know about the injuries during
the night (since the child would have been screaming). (Tr. 73, 75-76). The court
expressed that the neglect of the child was over a sustained period. (Tr. 73-74). The
court found her claim that she could not telephone anyone to lack credibility. (Tr. 74).
The court pointed out that the time for a change in her mothering would have been
after the roof stripper incident. (Tr. 74-75). The court agreed with the state’s
characterization of this as being one of the worst child endangering cases
encountered. (Tr. 75). The court then sentenced appellant to thirty-six months in
prison, the maximum sentence for a third-degree felony.
{¶19} On November 9, 2012, appellant filed an untimely appeal from the
September 18, 2012 sentencing entry. This court granted her request to file a
delayed appeal because the trial court had ordered trial counsel to file the notice of
appeal as his last official act, but trial counsel apparently believed appellate counsel
would file the appeal. (Tr. 80).
ASSIGNMENT OF ERROR NUMBER ONE
{¶20} Appellant sets forth two assignments of error, the first of which
provides:
{¶21} “THE IMPOSITION OF THE MAXIMUM PERIOD OF
INCARCERATION AGAINST THE DEFENDANT IS CONTRARY TO O.R.C. §
2929.11 AND § 2929.12.”
{¶22} Pursuant to R.C. 2929.11(A), a court sentencing a defendant for a
felony shall be guided by the overriding purposes of felony sentencing, which are to
protect the public from future crime by the offender and others and to punish the
offender using the minimum sanctions that the court determines accomplish those
purposes without imposing an unnecessary burden on state or local government
 -6-

resources. R.C. 2929.11(A). The court shall consider the need for incapacitating the
offender, deterring the offender and others from future crime, rehabilitating the
offender, and making restitution to the victim of the offense, the public, or both. Id.
Thus, a sentence imposed for a felony shall be reasonably calculated to achieve
these two overriding purposes, commensurate with and not demeaning to the
seriousness of the offender's conduct and its impact upon the victim, and consistent
with sentences imposed for similar crimes committed by similar offenders. R.C.
2929.11(B).
{¶23} The sentencing court has discretion to determine the most effective way
to comply with the purposes and principles of sentencing. R.C. 2929.12(A). In
exercising that discretion, the court shall consider the statutory seriousness and
recidivism factors and may consider any other relevant factors. Id.
{¶24} Factors that indicate the defendant's conduct is more serious than
conduct normally constituting the offense include: (1) the physical or mental injury
suffered was exacerbated because of the victim’s physical or mental condition or
age; (2) the victim suffered serious physical, psychological, or economic harm; (3-5)
dealing with public office, position of trust in the community, occupation, elected
office, or professional reputation; (6) the offender's relationship with the victim
facilitated the offense; (7) dealing with organized criminal activity; (8) dealing with
prejudice; and (9) certain offenses involving a family or household member in the
vicinity of other children. R.C. 2929.12(B)(1)-(9).
{¶25} Factors that indicate the defendant’s conduct is less serious than
conduct normally constituting the offense include: (1) the victim induced or facilitated
the offense; (2) the offender acted under strong provocation; (3) the offender did not
cause or expect to cause physical harm to any person or property; and (4) there are
substantial grounds to mitigate the offender's conduct, although the grounds are not
enough to constitute a defense. R.C. 2929.12(C)(1)-(4).
{¶26} Factors that indicate the offender is likely to commit future crimes
include: (1) at the time of the offense, the offender was under pretrial release, post-
release control, or certain other sanctions; (2) the offender previously was
 -7-

adjudicated a delinquent child, or the offender has a history of criminal convictions;
(3) the offender has not been rehabilitated to a satisfactory degree after previously
being adjudicated a delinquent child, or the offender has not responded favorably to
sanctions previously imposed for criminal convictions; (4) the offender has
demonstrated a pattern of drug or alcohol abuse that is related to the offense, and
the offender refuses to acknowledge that pattern or refuses treatment; and (5) the
offender shows no genuine remorse for the offense. R.C. 2929.12(D)(1)-(5).
{¶27} Factors that indicate that the offender is not likely to commit future
crimes include: (1) the offender had not previously been adjudicated a delinquent
child; (2) the offender had not previously been convicted of or pleaded guilty to a
criminal offense; (3) the offender previously led a law-abiding life for a significant
number of years; (4) the offense was committed under circumstances not likely to
recur; and (5) the offender shows genuine remorse for the offense. R.C.
2929.12(E)(1)-(5).
{¶28} Contrary to appellant’s suggestion, the trial court did indicate that it
considered the purposes of felony sentencing and that it weighed the seriousness
and recidivism factors. The court’s judgment entry stated that the court considered
the record, the oral statements, the impact on the victim, the purposes and principles
of sentencing under R.C. 2929.11, the seriousness and recidivism factors under R.C.
2929.12.
{¶29} The court made pronouncements about its impressions before imposing
the sentence. The court’s entry sets forth various statements regarding the facts of
the case, making references to the severity of the burns, the serious and permanent
nature of the injury, the future surgeries to the scar tissue, the mother’s use of
methamphetamine at the time, her perceived knowledge of the injuries, the failure to
seek medical care, the severe dehydration, the child’s positive methamphetamine
test, the conclusion that the child would have died within a day or two had the raid
not occurred, and the prior life-threatening injury while under the mother’s
supervision.
 -8-

{¶30} The court also expressed that appellant appears to have no remorse or
empathy for the child, observing that she is only upset that she is going to prison.
The court pointed to the photographs as evidence of the severity of the injuries and
as evidence of the obvious need for medical assistance. The court also reiterated its
conclusion from the sentencing hearing that this was the worst form of the offense.
{¶31} Thus, it cannot be said that the trial court failed to make the requisite
considerations. In any event, explanations regarding the trial court’s consideration of
R.C. 2929.11 and R.C. 2929.12 are not required at the sentencing hearing or in the
sentencing entry. See State v. McGowan, 7th Dist. No. 09JE24, 2010-Ohio-1309, ¶
69.
{¶32} This leaves us with appellant’s argument that imposition of a maximum
sentence is an abuse of discretion, citing State v. Kalish, 120 Ohio St.3d 23, 2008-
Ohio-4912, 896 N.E.2d 124, ¶ 4 for the standard of review. However, it cannot be
said that the trial court abused its discretion in sentencing appellant to a maximum
sentence upon considering all of the circumstances of the case, including those
contained in the presentence investigation. Weighing heavily against appellant are
the age of the child, appellant’s position as the victim’s mother, the seriousness of the
injury, the victim’s future suffering both physically and emotionally, the drug
involvement and culture, the lack of care at the time, and the perceived lack of real
remorse now.
{¶33} More specifically, at the time of the incident, the mother was impaired to
the extent that she was unable “to comprehend what is really going on in life” due to
her methamphetamine use while with her child; yet, she was able to work at a strip
bar to fund her habit. While so working, she left her one-year old daughter with a
man whom she knew was “bad on meth” and whom she suspected would both
sexually and physically abuse her child and then went without caring for the child for
days. Even assuming for sake of argument that she was not present during the
exposure to the substance causing the burns, when appellant finally retrieved her
child in the middle of the night, the child was screaming. Yet, supposedly appellant
 -9-

did not discover the injuries until the next day just as the police were investigating the
area after a drug raid.
{¶34} As the court pointed out, the injuries were very serious. And, the child
was suffering an infection and high fever, was dehydrated and noticeably
malnourished, and was on methamphetamine herself. The photographs establish
how unreasonable it would be for someone not to immediately run for help upon
seeing the child’s bottom and legs and how unreasonable it would be to claim that
the child’s condition was not ascertained until just prior to the raid. Some scabbing or
healing was noted. Notably, most of the wounds are within the diaper area, but many
would have protruded lower than the leg of a diaper. In fact, it is almost
unimaginable that the child could even withstand being subjected to a diaper rubbing
against these wounds. And, appellant’s statements to the police belie her statements
at sentencing. The court reasonably found a pattern of neglect by this mother
culminating in horrific burns to the child’s private areas and legs which remained
untreated until police happened to be conducting a raid in the area.
{¶35} Moreover, the child’s injuries are permanent and require painful scar
massages, future monitoring, and surgery to allow for growth. As the court pointed
out, this child had already been subjected to life-threatening surgery due to the
mother’s failure to supervise near a dangerous chemical, also said to be a
component of meth-making. Considering this experience to the child mere months
prior, the subsequent lack of monitoring was even less forgivable.
{¶36} This also raises concern with the recidivism factor involving whether the
circumstances are likely to recur. She claims she has been clean for nearly three
years; however, when she made this pronouncement, it had not even been two years
since the incident. She had a prior conviction of disorderly conduct and her juvenile
record contained truancies. As she was only 21 at the time, her lack of a criminal
history is not that mitigating. In addition, the trial court could rationally find a need to
protect the public from this defendant and from others like her (and even a need to
protect the victim, whom the father leaves with appellant at times, and appellant’s
 -10-

new baby, who was ten weeks old at the time of sentencing and thus conceived with
knowledge that this case was pending).
{¶37} It was also within the trial court’s discretion to conclude that appellant
lacked genuine remorse. The court saw her speak and witnessed her behavior
throughout the various proceedings. The voice inflections, demeanor, gestures, and
eye movements of a speaker are telling aspects of remorse that we do not second-
guess. For all of these reasons, the trial court’s decision to impose a maximum
sentence of thirty-six months is upheld.
ASSIGNMENT OF ERROR NUMBER TWO
{¶38} Appellant’s second assignment of error contends:
{¶39} “DEFENSE COUNSEL RECOMMENDING AND/OR SUGGESTING A
PLEA OF NO CONTEST RESULTED IN PREJUDICIAL ERROR AND INEFFECTIVE
ASSISTANCE OF COUNSEL.”
{¶40} In urging that she received ineffective assistance of counsel, appellant
briefly posits that there is no hard evidence of how or when the injury was received,
and thus, the case should have been tried to a jury. The state cites to the thorough
plea colloquy and responds that accepting responsibility and asking for leniency is a
sound strategy and that a rational attorney can reasonably conclude that the
photographic, medical, and other evidence provided in discovery would deter a jury
from concluding that appellant reasonably did not know that the child was injured or
how seriously she was injured.
{¶41} We review a claim of ineffective assistance of counsel under the two-
part test articulated in Strickland v. Washington, 466 U.S. 668 104, S.Ct. 2052, 80
L.Ed.2d 674 (1984). Specifically, a reviewing court will not deem counsel's
performance ineffective unless a defendant can show his lawyer's performance fell
below an objective standard of reasonable representation and that prejudice arose
from the lawyer's deficient performance. State v. Bradley, 42 Ohio St.3d 136, 142,
538 N.E.2d 373 (1989).
{¶42} Our review of counsel's performance is highly deferential as there is a
strong presumption that counsel's conduct falls within the wide range of reasonable
 -11-

professional assistance. Strickland, 466 U.S. at 689. And, to show prejudice, a
defendant must prove that, but for his lawyer's errors, a reasonable probability exists
that the result of the proceedings would have been different. Id. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. In this context, the defendant must prove that there is a reasonable
probability that, but for counsel's errors, she would not have pled guilty. See Hill v.
Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
{¶43} Appellant alleges only that counsel should not have recommended that
she plead no contest to the charge because maybe a jury could have believed her
claim to lack of knowledge of the child’s condition. However, she does not allege any
actual legal error or deficiency in making a recommendation such as the providing of
an incorrect legal standard or a failure to prepare for trial. Moreover, what counsel
recommended does not appear to be on the record as appellant does not cite to any
portion of the record containing counsel’s recommendation. See, e.g., State v. Dotts,
2d Dist. No. 2012-CA-107, 2011-Ohio-5202, ¶ 21-22.
{¶44} Additionally, appellant’s considered decision is evident from the record.
That is, ten months after the arrest, appellant decided to plead guilty; she even
signed the plea. She then refused to enter her plea on the record and decided to
take the case to trial. An independent expert was appointed to review the medical
records. It was not until an entire year after her refusal to go through with the original
signed guilty plea that she eventually pled no contest. She thus spent much time
considering whether a plea was in fact her best option.
{¶45} There is no contention that her plea was unknowing or involuntary due
to counsel’s improper advice. As the state points out, the evidence against her was
damning. As the state additionally notes, her own lack of emotion and credibility
weighed against her wish for a lesser sentence.
{¶46} It is a valid trial tactic to plead to the charge, accept responsibility, and
argue in favor of a non-maximum sentence. The strategy did not work here, but
ineffective assistance of counsel that does not make. See State v. Thompson, 7th
Dist. No. 99CA211, 2003-Ohio-2380, ¶ 54, citing State v. Bird, 81 Ohio St.3d 582,
 -12-

585, 692 N.E.2d 1013 (1998) (for the proposition that a decision to enter into a plea
agreement rather than proceed to trial is treated as a trial tactic). We refrain from
second-guessing an alleged recommendation to accept responsibility in the form of a
no contest plea under all of the circumstances herein. This assignment of error is
overruled.
{¶47} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Donofrio, J., concurs.
DeGenaro, P.J., concurs.