[Cite as State v. Bradburn,
2019-Ohio-2484.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 17-19-01
v.
RANDY L. BRADBURN, OPINION
DEFENDANT-APPELLANT.
Appeal from Shelby County Common Pleas Court
Trial Court No. 18CR000078
Judgment Affirmed
Date of Decision: June 24, 2019
APPEARANCES:
Justin G. Griffis for Appellant
Heath H. Hegemann for Appellee
Case No. 17-19-01
SHAW, J.
{¶1} Defendant-appellant, Randy L. Bradburn (“Bradburn”), appeals the
December 10, 2018 Judgment Entry of Sentence issued by the Shelby County Court
of Common Pleas journalizing his conviction after entering a guilty plea to one
count of Rape in violation of R.C. 2907.02(A)(1)(b), and sentencing him to life in
prison without the possibility of parole. On appeal, Bradburn argues that the
sentence imposed by the trial court is not supported by the record and is clearly and
convincingly contrary to law. Bradburn also claims that his counsel was ineffective
during the sentencing hearing.
Procedural Background
{¶2} On March 8, 2018, the Shelby County Grand Jury returned a three-
count indictment against Bradburn alleging that he committed two counts of Rape
in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree, and one count of
Gross Sexual Imposition, in violation of R.C. 2907.05(A)(4), a felony of the third
degree. The charges stemmed from allegations that Bradburn engaged in sexual
conduct with a female relative, who was under the age of ten.
{¶3} On March 23, 2018, the trial court ordered a competency examination
to determine whether Bradburn is competent to stand trial and on May 23, 2018, the
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trial court found Bradburn competent to stand trial based upon a psychological
evaluation report admitted by joint stipulation at a hearing.1
{¶4} On September 28, 2018, pursuant to a negotiated plea agreement,
Bradburn entered a plea of guilty to one count of first degree felony Rape as charged
in the indictment. As a result of the plea agreement, the remaining two counts listed
in the indictment were dismissed. Sentencing was scheduled for a later date
pending the completion of a pre-sentence investigation.
{¶5} On November 14, 2018, the trial court granted a motion to continue the
sentencing hearing filed by Bradburn. In this motion, Bradburn requested that a
second pre-sentence investigation be conducted on the basis that he did not feel
comfortable answering the questions regarding the underlying rape offense posed
by the female interviewer. Accordingly, the trial court permitted a second pre-
sentencing investigation of Bradburn to be completed by a male interviewer.
{¶6} On December 10, 2018, Bradburn appeared for sentencing. Due to the
nature of the conviction, the discretion of the trial court in imposing the sentence
was limited because the statute required the trial court to impose a life sentence upon
Bradburn. Thus, the only issue before the trial court was whether Bradburn would
1
The trial court also granted defense counsel’s request that a second evaluation be completed to determine
Bradburn’s sanity at the time the offenses were committed. The record indicates that a status conference was
held on August 13, 2018 after the completion of the this second evaluation of Bradburn. However, there was
no transcript of that hearing included with the record on appeal and similarly the report from the second
evaluation was also not included with the record on appeal.
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be eligible for parole after fifteen years or whether he would be sentenced to life in
prison without the possibility of parole. After stating its findings on the record, the
trial court sentenced Bradburn to a prison term of life without the possibility of
parole and classified him as a Tier III sex offender.
{¶7} Bradburn filed this appeal, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE SENTENCE IMPOSED BY THE SENTENCING COURT
IS CONTRARY TO LAW BECAUSE IT FAILS TO REFLECT
CONSIDERATION OF THE PURPOSES AND PRINCIPLES
OF FELONY SENTENCING CONTAINED IN REVISED
CODE § 2929.11 OR THE SERIOUSNESS AND RECIDIVISM
FACTORS OF REVISED CODE § 2929.12.
ASSIGNMENT OF ERROR NO. 2
THE SENTENCING COURT FAILED TO CONSIDER THE
PURPOSES AND PRINCIPLES OF FELONY SENTENCING
IN R.C. § 2929.11 AND § 2929.12 AND ABUSED ITS
DISCRETION IN SENTENCING MR. BRADBURN TO THE
MAXIMUM SENTENCE OF LIFE WITHOUT THE
POSSIBILITY OF PAROLE.
ASSIGNMENT OF ERROR NO. 3
DEFENSE COUNSEL RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH
AMENDMENT OF THE UNITED STATES CONSTITUTION,
AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION.
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Case No. 17-19-01
First and Second Assignments of Error
{¶8} In his first and second assignments of error, Bradburn claims that the
trial court erred in imposing the maximum sentence of life without the possibility
of parole. Specifically, Bradburn argues that the trial court failed to give adequate
consideration to the sentencing factors contained in R.C. 2929.11 and R.C. 2929.12,
and to other factors in favor of mitigation in fashioning its sentence.
Legal Standard
{¶9} As a point of clarification, we note that the standard of review for felony
sentences is provided by R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶ 9-23. “The court hearing an appeal [of a felony sentence] shall
review the record, including the findings underlying the sentence or modification
given by the sentencing court.” R.C. 2953.08(G)(2). “Applying the plain language
of R.C. 2953.08(G)(2), … an appellate court may vacate or modify a felony
sentence on appeal only if it determines by clear and convincing evidence that the
record does not support the trial court’s findings under relevant statutes or that the
sentence is otherwise contrary to law.”
Marcum at ¶ 1. Thus, insofar as Bradburn
argues that the trial court abused its discretion in applying the statutory factors, this
is no longer the applicable standard of review. See State v. Tammerine, 6th Dist.
Lucas No. L-13-1081,
2014-Ohio-425, ¶ 15-16 (recognizing that sentences are
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reviewed pursuant to R.C. 2953.08 and not under the abuse of discretion standard);
see also State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002, ¶ 10, 16.
{¶10} A sentence is not clearly and convincingly contrary to law where the
trial court “considers the principles and purposes of R.C. 2929.11, as well as the
factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences
the defendant within the permissible statutory range.” State v. Aburas, 12th Dist.
Clermont No. CA2017-10-054, 2018-Ohio-1984, ¶ 9. When exercising this
discretion in felony cases, the statutory principles of sentencing found in R.C.
2929.11 and R.C. 2929.12 must be considered. State v. Saunders, 7th Dist. Jefferson
No. 17 JE 0015,
2018-Ohio-3612, at ¶ 9, citing State v. Mathis,
109 Ohio St.3d 54,
2006-Ohio-855, ¶ 38. Yet, the court is not required to place a specific finding on
the record when considering the principles and purposes of sentencing under R.C.
2929.11. State v. Wilson,
129 Ohio St.3d 214,
2011-Ohio-2669, ¶ 31. Moreover,
“The Code does not specify that the sentencing judge must use specific language or
make specific findings on the record in order to evince the requisite consideration
of the applicable seriousness and recidivism factors.” State v. Arnett,
88 Ohio St.3d
208, 215 (2000).
{¶11} Here, the trial court specifically stated on the record and in its
judgment entry that it considered the principles and purposes of sentencing in R.C.
2919.11 and the recidivism factors in R.C. 2919.12 when it sentenced Bradburn to
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life in prison without parole, which is permissible by statute for Bradburn’s Rape
conviction. See 2907.02(B). Despite Bradburn’s argument on appeal, the record
also reflects that the trial court considered other mitigating factors, such as
Bradburn’s low intellectual capacity, when pronouncing its sentence. Throughout
the case the trial court had reviewed the reports from psychological examinations of
Bradburn and in speaking to Bradburn at sentencing acknowledged that “there’s no
question that you have some mental health issues that contribute to your conduct.”
(Doc. No. 162 at 13).
{¶12} However, the trial court also highlighted Bradburn’s criminal history
which included a 2000 conviction for Child Molestation in Indiana and a conviction
in 2017 for Criminal Child Enticement, in addition to his underlying conviction of
the Rape of a child under ten, whom he lived with in a relative’s home.2 The PSIs
also indicated that Bradburn had received counseling in the past after his prior sex
offenses, but nevertheless continued to victimize children. Moreover, Bradburn’s
PSIs demonstrated that he had been unsuccessfully terminated from court
supervision with respect to his last case, which immediately preceded the underlying
offenses comprising the case sub judice. The record further indicates that Bradburn
admitted to law enforcement that he has urges that he is unable to control, and that
2
The record indicates Bradburn was also charged, in a separate case contemporaneous to the instant case,
with ten counts of Pandering Sexually Oriented Matter Involving a Minor based upon pictures and videos
obtained from his cell phone which depicted pre-pubescent children engaged in sexual conduct with adults.
These charges were dismissed in exchange for Bradburn pleading guilty to one count of Rape in this case.
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instead of taking responsibility for his conduct, Bradburn repeatedly attempted to
justify his actions to the PSI interviewers. Thus, both PSI interviewers found it
extremely likely that Bradburn would reoffend and harm more children and as a
result both recommended that the trial court impose upon Bradburn a sentence of
life in prison without the possibility of parole.
{¶13} The trial court stated its reasoning on the record for choosing to impose
the maximum sentence at sentencing.
[B]ased upon the history that I have found here, it appears very
likely to this court that if you ever get out of prison, you would
likely reoffend, and this Court believes that it has an obligation to
attempt to protect the public, in particular young children, from
any possibility that you might be in a position to reoffend. So
taking all those things into consideration, it will be the order of
this court that you be ordered to serve life without the possibility
of parole at ODRC.
(Doc. No. 162 at 13). Based on the foregoing, we find that Bradburn’s sentence is
not clearly and convincingly contrary to law because the prison term is within the
statutory range and the record fully supports the trial court’s sentencing decision to
impose the maximum sentence of life in prison without the possibility of parole.
Accordingly, Bradburn’s first and second assignments of error are overruled.
Third Assignment of Error
{¶14} In his third assignment of error, Bradburn claims that his trial counsel
was ineffective at sentencing because “defense counsel failed to have him examined
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Case No. 17-19-01
by a mental health professional and have the mental health professional provide
expert testimony at sentencing for purposes of mitigation.” (Appt. Br. at 17).
Legal Standard
{¶15} To prove an allegation of ineffective assistance of counsel, Bradburn
must satisfy a two-prong test. First, Bradburn must establish that counsel’s
performance has fallen below an objective standard of reasonable representation.
Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052 (1984); State v.
Bradley,
42 Ohio St.3d 136 (1989), paragraph two of the syllabus. Second, Bradburn
must demonstrate that he was prejudiced by counsel’s performance.
Id. To show
that he has been prejudiced by counsel’s deficient performance, Bradburn must
prove that, but for counsel’s errors, the result of his sentencing would have been
different. Bradley, 42 Ohio St.3d at paragraph three of the syllabus.
{¶16} The extent to which counsel presents mitigation evidence at a
sentencing hearing is generally a matter of trial strategy. State v. Cossack, 7th Dist.
Mahoning No. 08 MA 161, 2009-Ohio-3327, ¶ 36, citing State v. Stiles, 3d Dist.
Allen No. 1-08-12,
2009-Ohio-89, citing State v. Were,
118 Ohio St.3d 448, 2008-
Ohio-2762, ¶ 241. It is well-established that tactical or strategic trial decisions, even
if unsuccessful, do not generally constitute ineffective assistance. See State v.
Carter,
72 Ohio St.3d 545, 558 (1995). Defense counsel has a duty to investigate
mitigating circumstances in order to make informed tactical decisions about what
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information would be most helpful to his or her client. State v. Conway, 10 Dist.
Franklin No. No. 05AP-76, 2005-Ohio-6377, ¶ 28, citing State v. Johnson,
24 Ohio
St.3d 87, 90 (1986). The decision to forego the presentation of additional mitigating
evidence does not itself constitute proof of ineffective assistance of counsel.
Johnson at 91.
{¶17} Here, the record demonstrates that the trial court had reviewed the
reports related to the psychological examinations of Bradburn and was therefore
aware of his intellectual limitations. However, it should be noted that the
psychological report submitted with the record on appeal revealed that the mere
existence of Bradburn’s cognitive impairments was not in of itself conclusive in
examining his conduct. Specifically, the expert examiner observed that Bradburn
“over-aggregates these impairments” and “although [his] scores on an intelligence
test were below-average, Mr. Bradburn’s adaptive functioning is at a level above
what would be expected based on the measured level of cognitive disability. Thus,
he does not meet criteria to be termed ‘intellectually disabled.’ ” (Doc. No. 161,
Joint Ex. I). Moreover, at sentencing, defense counsel made a thorough argument
in favor of mitigation, highlighting Bradburn’s cognitive challenges, the
cooperation Bradburn gave to law enforcement during the investigation of the
offenses, and his expression of remorse for the trauma his conduct caused the victim.
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Accordingly, counsel asked that the trial court impose a prison term of life, giving
Bradburn the possibility of being considered for parole at some point in the future.
{¶18} Based on the record before us, Bradburn has failed to demonstrate that
his counsel’s decision not to obtain expert testimony to speak to Bradburn’s
cognitive limitations at sentencing fell below an objective standard of reasonable
representation. There is nothing in the record to suggest that trial counsel failed to
investigate mitigating circumstances in order to make informed tactical decisions
about what information would be most helpful to Bradburn. Rather, the trial court
already had access to two psychological reports on Bradburn, and therefore, it is
purely speculative on Bradburn’s part that an additional expert examination would
have provided new evidence to persuade the trial court to impose a life sentence
instead of a life sentence without the possibility of parole. Accordingly, we find no
merit to Bradburn’s arguments that his counsel was ineffective at sentencing on this
basis. The third assignment of error is therefore overruled.
{¶19} Based on the foregoing, the assignments of error are overruled and the
judgment and sentence of the trial court is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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