State v. Smith

[Cite as State v. Smith, 2020-Ohio-4828.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 107956
v. :

KEYON SMITH, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: October 8, 2020

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-629767-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Steven N. Szelagiewicz, Assistant
Prosecuting Attorney, for appellee.

The Law Office of Jaye M. Schlachet, and Eric M. Levy, for
appellant.

MARY EILEEN KILBANE, P.J.:

This cause is before this court on remand from the Ohio Supreme

Court for further review of our decision released on September 19, 2019, based on

the court’s recent decision in State v. Miller, Slip Opinion No. 2020-Ohio-1420. In

State v. Smith, 8th Dist. Cuyahoga No. 107956, 2019-Ohio-3769 (“Smith I”),
defendant-appellant, Keyon Smith (“Smith”), appealed his convictions and

sentence, arguing in his first assignment of error that his guilty plea was invalid. He

presented three assignments of error for our review; we found that Smith’s guilty

plea was invalid and remanded the case to the trial court. Because we found Smith’s

plea was invalid, we did not address his remaining two assignments of error because

we found them moot pursuant to App.R. 12. The Ohio Supreme Court, based on

Miller, reversed our decision in Smith I and ordered that we address the remaining

two assignments of error that concern Smith’s sentence. After careful consideration,

we affirm the decision of the trial court.

We will begin by addressing the history of this case.

Smith I

Smith’s first assignment of error as presented read:

[Smith’s] guilty pleas are invalid and are required to be vacated
pursuant to Crim.R.11(C)(2)(c) where at the time of the guilty plea the
trial court failed to ensure that [Smith] was aware that by entering his
plea he would be waiving his constitutional rights which was not in
strict compliance with the criminal rule.

We agreed with Smith, finding that the trial court “ensured that Smith

understood all of the constitutional rights, but it never expressly stated, or inquired

as to whether Smith understood, that by pleading guilty, he was waiving his

constitutional rights.” Smith I at ¶ 11. As a result, we vacated Smith’s plea and

remanded the matter to the trial court for further proceedings.

We based our decision on State v. Miller, 8th Dist. Cuyahoga No.

105363, 2018-Ohio-843, where we found that the trial court’s failure to ensure that
a defendant understood that a guilty plea waived all the relevant constitutional

rights meant that the trial court failed to strictly comply with the requirements of

Crim.R. 11(C)(2)(c).

Miller was appealed to the Ohio Supreme Court; Smith I was also

appealed to the court and held for a decision in Miller. Miller, Slip Opinion No.

2020-Ohio-1420, the Ohio Supreme Court reversed this court. The court found that

strict compliance with Crim.R. 11(C)(2)(c) does not require a trial court to use the

particular words stated in the rule. Id. at ¶ 1. “Instead, to strictly comply with the

rule, the trial court must orally advise the defendant, in a manner reasonably

intelligible to the defendant, that the plea waives the rights enumerated in the rule.”

Id.

In a judgment entry dated July 21, 2020, Ohio Supreme Court

reversed our decision in Smith I on the authority of Miller. The cause was remanded

to this court for consideration of Smith’s two remaining assignments of error.

Facts of the Case

In Smith I, we stated that:

In June 2018, Smith was charged with the rape and kidnapping of his
stepsister, who was under the age of 13 at the time of the offense.
According to Smith, the victim allegedly hurt her vagina and “he
checked on it.” While doing so, he digitally penetrated the victim’s
vagina.

In October 2018, Smith entered into a plea agreement with the state.
Smith pled guilty to amended counts of attempted rape and child
endangering, and the accompanying specification was dismissed. At
the plea hearing, the court informed Smith of his constitutional and
nonconstitutional rights, but never expressly stated that by pleading
 guilty, he was waiving those rights. Smith pled guilty according to the
terms of the plea agreement, and the trial court referred Smith to the
probation department for a presentence investigation report.

At sentencing, the court heard from the victim’s sister, defense counsel,
Smith, and Smith’s mother. The attempted rape and child endangering
counts merged for purposes of sentencing, and the state elected to
proceed with sentencing on the attempted rape count. The court then
sentenced Smith to seven years in prison.

Id. at ¶ 2-4.

During the course of the sentencing hearing the victim’s sister

testified that the victim was extremely embarrassed and traumatized by the event.

In response, when discussing Smith’s remorse, defense counsel stated

that Smith, “immediately, when he was confronted about it, he admitted it. He met

with the officers. He took a written — he made a written statement. He also did a

polygraph.” Counsel was attempting to show that Smith felt remorse for his actions

and that he was merely checking the victim for an injury without really thinking

about the inappropriateness of his actions.

The trial court responded:

I guess I’m just having a hard time reconciling the words of [the victim’s
sister] and what [the victim] is living with now with what you’re calling,
you know, a well check. It doesn’t make sense to me. It doesn’t make
any sense to me, you know, when my offense summary here, according
to the police report, is that you denied the allegations. You agreed to
take a polygraph. Before the polygraph, you admitted to touching the
victim’s bare vagina. After failing the polygraph — and that’s — I don’t
consider polygraph as evidence of anything.

The court later stated that

[t]he [c]ourt must and has formulated this decision based upon the
overriding principles and purposes of felony sentencing, namely, to
protect the public from future crime by Mr. Smith and to punish you
 using the minimum sanctions the [c]ourt determines accomplishes
those purposes without imposing an unnecessary burden on state or
local government resources.

***

Mr. Smith, you took away a child’s innocence and you left her damaged,
not broken, because she’s got a lot of people around her and she can
live a long, healthy life, but it’s going to take her time. It’s going to take
her time to get back to that little child. * * * And, quite frankly, I don’t
see that you’re taking responsibility for it.

Smith timely appealed on December 5, 2018. In Smith I, journalized

on September 19, 2019, we sustained Smith’s first assignment of error and vacated

his plea, remanding to the trial court for further proceedings. In light of our

disposition we found that Smith’s remaining assignments of error were moot

pursuant to App.R. 12. In light of the Supreme Court’s judgment entry, we will now

address Smith’s second and third assignments of error for the first time.

Assignment of Error No. 2

The trial court erred and abused its discretion when it considered
inadmissible polygraph test results when determining whether
Appellant accepted responsibility for his actions and to impose
sentence upon Appellant and Appellant’s trial counsel was otherwise
ineffective for failing to object to the consideration of the polygraph
results.

Consideration of Polygraph Results

Smith argues that the judge improperly considered the results of a

failed polygraph examination when sentencing Smith. After carefully reviewing the

transcript and the relevant law, we do not find any error.

Smith argues that it was an abuse of discretion for the trial court to

consider his failed polygraph. In support, he cites a First District case where the
court found that the trial court abused its discretion in considering a polygraph

examiner’s opinion. State v. Caperton, 1st Dist. Hamilton No. C-000666, 2001 Ohio

App. LEXIS 5758 (Dec. 21, 2001). However, in that case, the trial court allowed the

polygraph examiner to testify at the sentencing hearing; the polygraph examination

was also ordered by the trial court and administered without defense counsel

present. The facts in Caperton are substantially different from Smith’s case; here

the court did not use the polygraph as evidence while the court in Caperton clearly

did. As a result, we do not find Caperton instructive.

In Smith’s case, the trial court explicitly stated that “I don’t consider

polygraph as evidence of anything.” In a similar case, this court has previously ruled

that a trial court did not consider a failure to take a polygraph because the trial court

expressly stated that it ignored that information.

In State v. Walton, 8th Dist. Cuyahoga No. 90140, 2008-Ohio-3550,

the trial court had ordered Walton to take a polygraph. Walton refused. At

sentencing the trial court stated:

The [c]ourt ordered not only a polygraph examination, which we don’t
have — and the [c]ourt is not going to consider the fact that Mr. Walton
didn’t take his polygraph for any purpose whatsoever. We will just
ignore the request for the polygraph.

Id. at ¶ 101.

As a result, we dismissed Walton’s assignment of error. Here, as in

Walton, the court was explicit that it would not consider the polygraph for any
purpose, stating that it did not consider the polygraph as “evidence of anything.”

Accordingly we find that Smith’s argument is without merit.

Ineffective Assistance of Counsel

Additionally, Smith argues that counsel was ineffective for failing to

object to the alleged consideration of the polygraph examination by the court while

sentencing. Smith also argues that counsel should not have introduced the

polygraph examination at sentencing in the first place. We do not find that counsel

was deficient in introducing the polygraph in an attempt to mitigate the sentence or

in failing to object; further, even if we did find that counsel was deficient, because

the trial court did not use the polygraph as evidence, Smith was not prejudiced.

To establish ineffective assistance of counsel Smith must show that

trial counsel’s performance was deficient and that deficient performance prejudiced

his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St. 136, 538 N.E.2d 373 (1989). A

properly licensed attorney enjoys a presumption of competence, and the person

alleging ineffective assistance of counsel has the burden of establishing the

deficiency. State v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988).

In the sentencing context, the presentation of mitigation evidence at

a sentencing hearing is generally a matter of trial strategy. State v. Keith, 79 Ohio

St.3d 514, 530, 684 N.E.2d 47 (1997). “Tactical or strategic trial decisions, even if

unsuccessful, do not generally constitute ineffective assistance.” State v. Carter, 72

Ohio St.3d 545, 558, 651 N.E.2d 965 (1995).
 Here, Smith’s counsel could have reasonably presumed that

introducing the polygraph would show the court that Smith had taken steps to prove

his actions were more accidental than deviant. Counsel was likely aware that Smith

had first denied the allegations before confessing and may have been attempting to

mitigate Smith’s inconsistency. While counsel’s strategy may have been

unsuccessful, we do not find it deficient. It is not our place to second guess counsel

in this particular case. See State v. Tinsley, 8th Dist. Cuyahoga No. 105551, 2018-

Ohio-278.

Smith also argues counsel should have objected to the use of the

polygraph in sentencing. However, the court did not use the polygraph to sentence

Smith so there was nothing for counsel to object to.

Smith’s second assignment of error is overruled.

Assignment of Error No. 3

The trial court erred by imposing a lengthy prison sentence upon
appellant which is not supported by the record when a less severe
sanction would have accomplished the principals [sic] and purposes of
felony sentencing.

Smith’s Sentence Was Not Excessive

In Smith’s third assignment of error, Smith argues that the court

imposed a lengthy sentence when a lesser sentence would have accomplished the

goals of sentencing. Smith’s argument is not well taken.

The trial court has full discretion to sentence a defendant to any

prison term within the statutory range. State v. Lappin, 8th Dist. Cuyahoga No.
91068, 2009-Ohio-2578, ¶ 9, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-

856; see also State v. Clay, 8th Dist. Cuyahoga Nos. 89339, 89340, and 89341,

2008-Ohio-314. Furthermore, the trial court has significant discretion in

determining how much weight should be given to the statutory seriousness,

sentencing factors, and any relevant evidence. Clay at ¶ 12.

Despite that discretion, our standard in reviewing felony sentences is

not an abuse of discretion standard. State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, ¶ 10. Instead, to find that a court erred in sentencing, we must “clearly

and convincingly” find that either (1) “the record does not support the sentencing

court’s findings under” various sentencing statues in R.C. Chapter 2929 or (2) “the

sentence is otherwise contrary to law.” Id. at ¶ 1. We find that the record supports

the sentencing court’s considerations and that the sentence was not otherwise

contrary to law.

Pursuant to R.C. 2929.14(A)(2), the punishment for a second-degree

felony attempted rape is two to eight years in prison. Smith received a sentence of

seven years, within the guidelines. However, Smith argues that he should have

received a lesser sentence because he presented evidence of his ability to be

rehabilitated and his remorse for his actions. The trial court found that Smith was

not remorseful and that his crime was a serious one.

The court referenced how Smith had initially denied responsibility

before admitting what he had done. He also continually attempted to downplay his

actions as a simple wellness check rather than anything perverse or malicious. The
court, reviewing the record, stated that, “quite frankly, I don’t see that you’re taking

responsibility for it.”

Further, the victim in this case was an 11-year-old at the time of the

incident; she remained so traumatized that she refused to come to court and

remained distant from certain members of her family. The court made clear during

sentencing that Smith’s actions “took away a child’s innocence and left her broken”

and that Smith had taken advantage of her innocence. Given these facts, Smith’s

sentence was supported by the record.

Smith’s third assignment of error is overruled.

We affirm the decision of the trial court.

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 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.

MARY EILEEN KILBANE, PRESIDING JUDGE

EILEEN T. GALLAGHER, A.J., and
MICHELLE J. SHEEHAN, J., CONCUR