[Cite as State v. McClanahan,
2019-Ohio-1802.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-78
:
v. : Trial Court Case No. 2018-CR-201
:
DIAMOND MCCLANAHAN : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 10th day of May, 2019.
...........
JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate
Division, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
RICHARD L. KAPLAN, Atty. Reg. No. 0029406, P.O. Box 751192, Dayton, Ohio 45475
Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} Diamond McClanahan appeals from his conviction and sentence following a
negotiated guilty plea to one count of cocaine trafficking, a fifth-degree felony (F5), and
one count of illegal manufacture of drugs, a second-degree felony (F2).
{¶ 2} McClanahan advances three assignments of error. First, he contends the trial
court’s imposition of a seven-year prison term for manufacturing .13 grams of fentanyl
was not reasonably calculated to achieve the statutory objectives of sentencing. Second,
he claims the trial court violated his due process rights by speculating and inventing
victims who may have been harmed by purchasing fentanyl from him. Third, he asserts
that his seven-year prison sentence for manufacturing fentanyl constituted cruel and
unusual punishment because the sentence was disproportionate to sentences imposed
in other cases.
{¶ 3} The record reflects that a grand jury indicted McClanahan on 11 counts
based on drug evidence obtained when police executed a search warrant at his house.
The charges were as follows: Count I cocaine trafficking (F5), Count II cocaine
possession (F5), Count III aggravated drug trafficking (F3), Count IV aggravated drug
possession (F5), Count V aggravated drug trafficking (F3), Count VI aggravated drug
possession (F5), Count VII aggravated drug trafficking (F3), Count VIII aggravated drug
possession (F5), Count IX aggravated drug trafficking (F3), Count X aggravated drug
possession (F5), and Count XI illegal manufacture of drugs (F2). The indictment included
specifications that the trafficking offenses were committed in the vicinity of a juvenile. The
various possession and trafficking counts stemmed from the discovery of multiple drugs
in McClanahan’s apartment, including cocaine, fentanyl, acetyl-fentanyl, carfentanil, and
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methamphetamine. Police also found digital scales, naloxone, and $4,376 in currency.
{¶ 4} McClanahan ultimately pled guilty to Count I cocaine trafficking (F5) (without
the vicinity-of-a-juvenile specification) and Count XI illegal manufacture of drugs (F2). He
also agreed to forfeit the cash. In exchange, the State agreed to dismiss all other charges
and specifications (Plea Tr. at 15.) The parties also agreed that any prison sentences
would be served concurrently. (Id. at 16.) The State recited the following factual basis for
the plea:
On September 6, 2017, at Clark County, Ohio, Clark County Sheriff’s
Office executed a search warrant at 408 and a half Chestnut Street, wherein
Diamond McClanahan was found to be the leaseholder of that residence.
Evidence showed items of drug trafficking was found inside that residence
such as foil bindles, Narcan, syringes, and relevant to the case at bar less
than 5 grams of cocaine. In the master bedroom closet of that residence
where the cocaine was found, there was also items such as powdered sugar
that, post Miranda, the defendant admitted to using to cut fentanyl to stretch
the product of fentanyl and methamphetamine to persons he was selling
drugs to. There was also $4,376 in U.S. currency that was seized from the
residence on Mr. McClanahan, on his codefendant Christy Wilcox, and
throughout the residence that is the proceeds of drug trafficking ….
(Id. at 18.)
{¶ 5} After engaging in a Crim.R. 11 discussion with McClanahan, the trial court
accepted his guilty plea, made a finding of guilt, and ordered a presentence investigation
(PSI). (Id. at 27.)
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{¶ 6} At a subsequent sentencing hearing, the trial court heard arguments from
counsel. McClanahan then spoke on his own behalf and stated: “I had no idea that all
them drugs was in my house. I did put powdered sugar in what I did buy off the streets to
help pay for my addiction, and I’m sorry that I’m addicted again; but what’s done is done.
So that’s all I have to say. I’m sorry.” (Sentencing Tr. at 8.) When questioned further by
the trial court, McClanahan claimed most of the drugs found the in the house had been
left there by prior occupants who were drug dealers. McClanahan asserted that he “had
no idea that stuff was even there.” (Id. at 9.) The trial court then addressed McClanahan
as follows:
THE COURT: Do I look that stupid?
DEFENDANT: Sir?
THE COURT: Do I look that stupid?
DEFENDANT: No, you don’t look stupid at all.
THE COURT: Well then quit lying to me.
DEFENDANT: Well, I have no way of proving.
THE COURT: Do you know how many times a drug buy was set up at your
place?
DEFENDANT: It was only with powdered sugar, sir.
THE COURT: No, sir. It was fentanyl. In fact, according to the same notes
from the officers, there was a deal on each of those occasions for them to
go and buy fentanyl.
DEFENDANT: I have no way of proving any different.
THE COURT: So, you see, I understand the State’s concern that when it
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comes to the guidelines of the sentencing statute to punish the defendant
and to protect the community. The Court has to take those words very
seriously when somebody is selling such a deadly poison to people in the
community for money, all those drugs, all that stuff set up in your apartment,
in your closet that you didn’t know about.
You know when drug people leave some place, unless of course,
they’re running out the back door because the police are at the front, they
usually don’t leave that kind of stuff behind.
The Court finds the following factors are applicable to this case:
As to [R.C.] 2929.12(B), I don’t have anyone that’s in these cases, in
these charges, that’s suffered serious physical harm as a result of the
offense; but we’ve had so many people dying and almost dying from
fentanyl in its various forms, it wouldn’t be a very far jump to indicate some
of them got their drugs from you.
In an interview with you with the police department after you were
Mirandized, you admitted selling and manufacturing fentanyl. There was a
codefendant who was selling the drugs for you.
As to the factors indicating recidivism is greater, you have a history
of criminal convictions. You’ve not responded favorably to sanctions
previously imposed for those convictions, and you show no genuine
remorse for this offense or these offenses.
As to factors indicating recidivism is less likely, there’s no prior
adjudication of delinquency.
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There is no military service record to consider.
The defendant scored high on the Ohio Risk Assessment Survey.
[R.C.] 2929.13 is not applicable because of the prior felony but also
because Count Eleven is a felony of the second degree with mandatory
prison sentence. Since it is a mandatory prison sentence, the defendant is
not amenable for community control sanctions, then the court finds that
such sanctions would in any event demean the seriousness of his conduct
and impact upon the community.
[R.C.] 2929.13(D), again, these factors would only apply if, in fact,
the Court had an option for something other than prison, so they’re not
applicable.
Taking all this into consideration, it’s the order of the Court the
defendant serve a prison term of 12 months on Count One. It’s further
ordered that he serve a mandatory prison term of 7 years on Count Eleven.
By agreement of the parties, this will be ordered to be served concurrently.
(Id. at 9-12.)
{¶ 7} In his first assignment of error, McClanahan contends his second-degree
felony conviction for illegally manufacturing drugs was predicated on him manufacturing
.13 grams of fentanyl. He argues that a seven-year prison sentence for this offense was
not reasonably calculated to achieve the objectives of felony sentencing.
{¶ 8} McClanahan’s argument implicates R.C. 2929.11(A) and (B), which provide:
(A) A court that sentences an offender for a felony shall be guided by
the overriding purposes of felony sentencing. The overriding purposes of
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felony sentencing are to protect the public from future crime by the offender
and others, to punish the offender, and to promote the effective
rehabilitation of the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary
burden on state or local government resources. To achieve those purposes,
the sentencing 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.
(B) A sentence imposed for a felony shall be reasonably calculated
to achieve the three overriding purposes of felony sentencing set forth in
division (A) of this section, 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.
{¶ 9} In support of his argument that a seven-year sentence was not reasonably
calculated to achieve the objectives of felony sentencing, McClanahan reviews the
statutory “seriousness” and “recidivism” factors in R.C. 2929.12. He contends none of the
“more serious” factors in R.C. 2929.12(B) apply to him. With regard to the “less serious”
factors in R.C. 2929.12(C), he argues that the “infinitesimal” amount of fentanyl he
manufactured was a relevant consideration. As for the “recidivism” factors in R.C.
2929.12(D) and (E), McClanahan asserts that his criminal history was “minor” and related
to drug and alcohol abuse. He also contends he expressed remorse at sentencing.
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{¶ 10} With regard to the trial court’s sentencing analysis, McClanahan claims it
erred in relying on hearsay police notes, attributing drug sales to him for which he was
not convicted, engaging in speculation and creating victims who were harmed by his drug
sales, relying on a faulty risk-assessment tool, unfairly analyzing his criminal history, and
ignoring the fact that he previously sought drug and alcohol treatment. As a result, he
urges us to reduce his seven-year sentence to two years.
{¶ 11} 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 McClanahan does not dispute the
lawfulness of his seven-year 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. State v. Folk, 2d Dist. Montgomery No. 27375, 2017-Ohio-8105, ¶ 6-7. Therefore,
we may vacate or modify McClanahan’s lawful sentence only if we find by clear and
convincing evidence that the record does not support it. We make no such finding here.
{¶ 12} As set forth above, McClanahan faced an 11-count indictment based on
various drugs being found in his residence along with evidence that he was manufacturing
and trafficking drugs. He obtained a plea deal that resulted in a guilty plea to two charges
and an agreement for concurrent sentences. The indictment specified that the illegal-
manufacturing charge under R.C. 2925.04(A) involved his manufacturing of fentanyl. But
neither his conviction nor the available penalty depended on any particular quantity of
fentanyl being manufactured. Moreover, for sentencing purposes, the trial court was not
required to believe that McClanahan only was involved in manufacturing the .13 grams of
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fentanyl found in his home. According to a bill of particulars accompanying the PSI report,
McClanahan and his companion, Christy Wilcox, both admitted to selling drugs, and
McClanahan admitted to manufacturing fentanyl. In addition, a search-warrant affidavit
accompanying the PSI report reflected that confidential informants made four controlled
buys of fentanyl from McClanahan or Wilcox prior to their arrest. Therefore, based on the
information before it, the trial court reasonably could have inferred that McClanahan had
done more than manufacture .13 grams of fentanyl and could have taken that fact into
consideration when determining an appropriate sentence.
{¶ 13} We also are unpersuaded by McClanahan’s complaint about the trial court
considering hearsay police notes. In addition to the search-warrant affidavit, which
detailed multiple controlled buys of fentanyl, the PSI report was accompanied by
investigative notes in the form of an incident report from law-enforcement officer Justin
Nawman. The notes contained the following information about McClanahan’s criminal
activity:
On September 6th, 2017 at 0950 hours the Clark County Sheriff’s
Office conducted a search warrant at 408½ Chestnut St. in the City of
Springfield. The search warrant was conducted after a month and a half
investigations were [sic] Diamond McClanahan and a Christy Wilcox were
selling and distributing a compound mixture of fentanyl. …
During the initial entry a large quantity of crystal like substance in two
clear grocery bags were located in the proximity of Diamond McClanahan
bedroom/living room area [sic]. Also during the search a make shift closet
located in the same living area contained materials used in the distribution
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and manufacturing of fentanyl. (Scales, powder sugar, strainers, foil for
packaging, naloxone, respiratory safety masks, and unlabeled pill bottles
containing Gabapentin).
On the secondary search of the residence several other unknown
powders and white sludge matter was located within the bathroom area.
Presumptive tests where [sic] administrated which tested positive for
cocaine and fentanyl. US Currency was also located within the confines of
Diamond’s clothing near his bed which was separated and taped in $500
denominations, estimated total of $4376 dollars.
…
Note: Before entry into residence Detective Fader was conducting
counter surveillance in the 300 block of Chestnut St. During this time
Detective Fader witness [sic] ongoing traffic from the residence, where
subjects where [sic] pulling up to and going in for only several minutes and
then leaving. Based on experience and field training in narcotic
investigations, ongoing traffic at this residence can be relevant to selling
and distribution of illegal narcotics.
On September 7th, 2017 at approximately 1800 hours interviews
were conducted on Christy Wilcox and Diamond McClanahan. When
speaking to Christy Wilcox (Mirandized), she admitted that she was selling
for Diamond McClanahan. When asking if she was familiar with the large
quantity of narcotics on scene, she stated no. …
During Diamond’s interview (Mirandized), he admitted to selling and
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manufacturing fentanyl. He continued to state that he was only a small
dealer, only buying a few grams a couple times a day and netting in around
$700 dollars in profit. When asked about the large quantity of a crystal
substance in his residence, he stated that he was unfamiliar with that. He
was then shown a picture of the substance that was recovered. He then
stated that it appeared to be crystal meth, but he denied that it was his. He
also assured detectives that his finger prints and DNA would not be located
on packaging material used to hold the crystal substance. …
{¶ 14} Upon review, we see no error in the trial court considering the foregoing
information, which accompanied the PSI report. A trial court is entitled to consider a wide
variety of information at sentencing, including information contained in police reports.
See, e.g., State v. Bowser, 186 Ohio App.3d 162,
2010-Ohio-951,
926 N.E.2d 714, ¶ 22-
23 (2d Dist.). Nor did the trial court err in attributing drug sales to McClanahan for which
he was not convicted. In Bowser, this court recognized that a sentencing court “may
consider information beyond that strictly related to the conviction offense.” Id. at ¶ 15.
Such information includes the full circumstances of the offense as well as charges and
supporting facts that are dismissed as part of a plea agreement. Id. at ¶ 15-17.
{¶ 15} We also reject McClanahan’s argument that the trial court improperly
speculated to invent victims who were harmed by his drug sales. The trial court explicitly
stated that it was aware of no identified victims who had suffered serious physical harm
as a result of his drug activity. It then added: “[B]ut we’ve had so many people dying and
almost dying from fentanyl in its various forms, it wouldn’t be a very far jump to indicate
some of them got their drugs from you.” Given McClanahan’s admission to manufacturing
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and trafficking fentanyl, the trial court reasonably inferred that it “wouldn’t be a very far
jump” to conclude that some area fentanyl victims had obtained their drugs from him.
{¶ 16} With regard to McClanahan’s criticism of his ORAS risk-assessment score,
trial courts routinely take those scores into consideration along with all other sentencing
information. This court has cited a “high” risk-assessment score as a permissible
sentencing consideration. See, e.g., State v. Dufner, 2d Dist. Clark No. 2018-CA-82,
2019-Ohio-1142, ¶ 8; State v. Kerr, 2d Dist. Champaign No. 2018-CA-8,
2018-Ohio-4882,
¶ 5; State v. Ropp, 2d Dist. Champaign No. 2017-CA-32,
2018-Ohio-3815, ¶ 17. Here the
trial court simply noted, in the course of its ruling, that “[t]he defendant scored high on the
Ohio Risk Assessment Survey.” We see no error.
{¶ 17} We also disagree with McClanahan’s assertion that the trial court unfairly
analyzed his criminal history. The trial court correctly noted that he had a history of
criminal convictions, and it found that he had not responded favorably to prior sanctions
and had not shown genuine remorse. McClanahan’s criminal history was lengthy. Even
excluding offenses committed in the 1980s and 1990s, his criminal history from 2004 to
the time of sentencing in this case included 17 misdemeanor theft cases, receiving stolen
property, misdemeanor assault, drug possession, attempted drug possession, two cases
of criminal trespass, drug abuse, two cases involving drug paraphernalia, two cases of
obstructing official business, and possession of drug-abuse instruments. Prior sanctions
included community control, numerous jail sentences, suspended sentences, a
substance-abuse treatment program, community service, and fines.
{¶ 18} It is true that McClanahan had only one prior felony conviction, which was
for drug use. At sentencing, his attorney explained that a second prior felony offense was
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“pled down to obstructing official business.” (Sentencing Tr. at 7.) It also is true that the
majority of McClanahan’s convictions either were directly drug related or were property
crimes such as theft, which may have been related to drug use. Nevertheless, despite the
numerous lesser sanctions he received for these offenses and his prior completion of a
treatment program, McClanahan proceeded to engage in the manufacturing and
distribution of drugs from his residence. This fact supports the trial court’s finding that he
had not responded favorably to prior sanctions.
{¶ 19} Finally, the trial court reasonably concluded that McClanahan had not
shown genuine remorse despite his apology. In conjunction with his statement of sorrow,
he professed to have had “no idea that all them drugs was in my house.” (Id. at 8.) He
asserted that “prior drug dealers” had left most of the drugs in his house, and he “had no
idea that stuff was even there.” (Id. at 9.) In light of the information before the trial court,
these claims defy belief and are indicative of a lack of responsibility or true remorse.
{¶ 20} Having reviewed the record, we do not find that it clearly and convincingly
fails to support the trial court’s imposition of a seven-year prison sentence for illegally
manufacturing drugs in violation of R.C. 2925.04(A). The first assignment of error is
overruled.
{¶ 21} In his second assignment of error, McClanahan contends the trial court
violated due process by speculating and inventing potential victims who may have been
harmed by purchasing fentanyl from him.
{¶ 22} McClanahan’s due process argument focuses on the trial court’s stating that
it “wouldn’t be a very far jump” to believe some fentanyl users had gotten the drug from
him and had been harmed. As set forth above, the specific statement at issue is as
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follows: “As to [R.C.] 2929.12(B), I don’t have anyone that’s in these cases, in these
charges, that’s suffered serious physical harm as a result of the offense; but we’ve had
so many people dying and almost dying from fentanyl in its various forms, it wouldn’t be
a very far jump to indicate some of them got their drugs from you.” (Sentencing Tr. at 10.)
{¶ 23} With regard to the seriousness of McClanahan’s offense, the trial court
simply appears to have been saying that no identified victim suffered serious physical
harm, but it would not be unreasonable to believe such victims exist given the well-known
danger of fentanyl. In the context of sentencing, the trial court was entitled to consider the
fact that McClanahan’s manufacturing and trafficking of fentanyl at least created a
substantial risk, if not likelihood, of serious physical harm to someone, which is all the trial
court appears to have been saying. We see no basis for a substantive or procedural due
process argument arising from the trial court’s remarks.
{¶ 24} McClanahan also repeats his challenge to the trial court’s reliance on police
notes to support its sentencing decision. He contends the trial court’s mention of the
“hearsay” notes “shifted the burden” to him to dispute the evidence. We disagree. At
sentencing, the trial court was entitled to consider the notes, which were in the form of an
incident report, even if they were hearsay. See State v. Spencer, 2d Dist. Clark No. 2017-
CA-22, 2018-Ohio-873, ¶ 7-8 (upholding trial court’s reliance on “law-enforcement
investigation notes” at sentencing). McClanahan additionally alleges a due process
violation based on the trial court’s reference to his selling fentanyl from his house. But the
sworn search-warrant affidavit that accompanied the PSI report referenced multiple
instances of McClanahan and Christy Wilcox selling fentanyl from his house. And the law-
enforcement investigative notes stated that McClanahan had admitted manufacturing and
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selling fentanyl. Finally, the prosecutor’s recitation of the factual basis for McClanahan’s
guilty plea mentioned him admitting to selling fentanyl. Once again, the trial court was
entitled to consider all of this information at sentencing. The second assignment of error
is overruled.
{¶ 25} In his third assignment of error, McClanahan contends his seven-year
sentence for manufacturing fentanyl constitutes cruel and unusual punishment that is
disproportionate to other cases of this type. He asserts that a sentence this severe for
manufacturing .13 grams of fentanyl is shocking to any reasonable person and to the
sense of justice of the community.
{¶ 26} Upon review, we find McClanahan’s argument to be unpersuasive. As a
threshold matter, he does not cite any other cases involving the manufacturing of fentanyl
or other drugs with which to compare his case. In any event, his seven-year sentence
was within the authorized statutory range and was not even a maximum sentence.
Generally, a sentence that falls within the range authorized by statute cannot constitute
cruel and unusual punishment. State v. Hairston, 118 Ohio St.3d 289,
2008-Ohio-2338,
888 N.E.2d 1073, ¶ 21. In addition, as explained above, the trial court was not required
to consider only the .13 grams of fentanyl found in McClanahan’s house when
determining an appropriate sentence. It was entitled to consider the entire record,
including the full circumstances of the offense as set forth in the PSI report and
accompanying information, the numerous charges dismissed under the plea agreement,
and McClanahan’s criminal history. Viewing the record as a whole, we see nothing
shocking about his receiving a seven-year prison sentence for the illegal manufacture of
drugs. The third assignment of error is overruled.
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{¶ 27} The judgment of the Clark County Common Pleas Court is affirmed.
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WELBAUM, P.J. and DONOVAN, J., concur.
Copies sent to:
John M. Lintz
Richard L. Kaplan
Hon. Richard J. O’Neill
