STATE OF OHIO v. TEVAUGHN DARLING
No. 104517
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 14, 2017
[Cite as State v. Darling, 2017-Ohio-7603.]
BEFORE: Kilbane, P.J., Boyle, J., and S. Gallagher, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; REMANDED; Case No. CR-15-602351-A
Jonathan N. Garver
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
Christopher D. Schroeder
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Tevaughn Darling (“Darling“), appeals from his guilty plea and sentence for conspiracy, heroin trafficking, having weapons while under disability, possession of criminal tools, and tampering with evidence. For the reasons set forth below, we affirm and remand this matter to the trial court for the limited purpose of issuing a nunc pro tunc journal entry incorporating its consecutive sentencing findings. See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 30.
{¶2} In September 2015, Darling and his codefendants, Duane Washington (“Washington“), Terri Buckner (“Buckner“), and Erica Crawford (“Crawford“), were charged in a 14-count indictment in Cuyahoga C.P. No. CR-15-599133-A. Buckner was Darling‘s girlfriend during the times relevant to this appeal, and Crawford is the mother of Darling‘s son. The indictment alleged that these defendants trafficked heroin and committed other related offenses between July 6, 2015 and September 9, 2015.
{¶3} Darling and his codefendants were all represented by retained counsel at their arraignments and at initial pretrials. Darling retained two attorneys to represent him. On November 6, 2015, the state filed a notice of conflict and a “motion to disqualify all co-defendants’ attorneys.”
{¶4} In response to the state‘s motion, Darling‘s first attorney filed a motiоn to withdraw as counsel. The trial court granted the first attorney‘s motion to withdraw that same day, without objection from the state or Darling. The second attorney Darling had retained remained as his counsel. The state then withdrew its motion to disqualify
{¶5} In January 2016, Darling and his codefendants werе charged in the present matter, a reindictment of CR-15-599133-A, to include additional offenses alleged to have occurred between January 1, 2015 to December 31, 2015, and to add two additional codefendants. Although the docket does not reflect when or why, it is clear that at some point the second retained attorney ceased his representation of Darling. An assistant Cuyahoga County public defender was appointed to represent Darling in the present, reindicted case. On January 28, 2016, the state filed a motion to dismiss CR-15-599133-A without prejudice, which the trial court granted the next day.
{¶6} In April 2016, Darling pleaded guilty in the reindicted case to one count of conspiracy, six counts of drug trafficking, having a weapon while under disability, possessing criminal tools, and tampering with evidence.1 Pursuant to a “package deal” plea agreement with the state, Buckner and Crawford could avoid the felony charges indicted against them and plea to misdemeanors in exchange for Darling‘s guilty plea.
{¶7} The trial court sentenced Darling to an aggregate of 14 years in prison. His sentence included mandatory time on the drug trafficking counts, a mandatory consecutive sentence on the one-year firearm specification, and the imposition of discretionary consecutive sentences. The trial court waived any discretionary fines, but
{¶8} It is from his plea and sentence that Darling appeals, raising the following six assignments of error for review.
Assignment of Error One
The state deprived [Darling] of retained counsel of his choice and due process of law by filing groundless objections to the representation of his retained counsel, thereby intimidating his retained counsel and causing his retained counsel to withdraw. Sixth and Fourteenth Amendments, Constitution of the United States; Article I, Section 10, Constitution of the State of Ohiо.
Assignment of Error Two
[Darling] was denied his right to the effective assistance of counsel when his retained counsel gave in to intimidation by the state and abandoned his client by withdrawing from the case.
Assignment of Error Three
The trial court committed prejudicial error and denied [Darling] due process of law by failing to inform [Darling] of his right to testify on his own at trial before accepting his guilty plea.
Assignment of Error Four
[Darling] was denied due process of law becausе his guilty pleas were not made knowingly, intelligently, and voluntarily because they were induced by promises to allow co-defendants [Buckner] and [Crawford] to avoid the serious felony charges filed against them by pleading guilty to misdemeanor charges — an offer that was part of a “package deal plea bargain” and was conditioned upon [Darling] pleading guilty to the offenses outlined by the Prоsecuting Attorney — and because of the existence of other coercive circumstances surrounding his guilty pleas.
Assignment of Error Five
The trial court committed prejudicial error by imposing consecutive sentences without making the statutory findings necessary to support consecutive sentences.
Assignment of Error Six
The trial court committed prejudicial error by imposing fines and court costs without considering the defendаnt‘s present and future ability to pay.
Right to Counsel of Choice
{¶9} Darling‘s first and second assignments of error relate to the proceedings in CR-15-599133-A, which was dismissed without prejudice after the charges therein were reindicted in the present case. Initially, we note that Darling‘s notice of appeal specified only the present case and did not designate CR-15-599133-A.
{¶10} Here, the state responded to, and was therefore clearly apprised of, Darling‘s first two assignments of error.
{¶11} In his first assignment of error, Darling argues the state deprived him of his
{¶12} We find that Darling waived these challenges by pleading guilty. “It is well settled that ‘a guilty plea waives all nonjurisdictional defects (other than errors affecting the validity of the guilty plea) in the prior proceedings.‘” State v. Lewis, 8th Dist. Cuyahoga No. 102939, 2015-Ohio-5267, ¶ 16, quoting State v. Moore, 2d Dist. Montgomery No. 22365, 2008-Ohio-4322, ¶ 12. Here, Darling does not assert that his retained counsel‘s withdrawal affected the validity of his plea, nor does he argue ineffective assistance of counsel as to his assistant public defender who represented him at the time of his plea.
{¶13} A guilty plea waives all constitutional claims, apart from challenging the constitutionality of the plea itself. State v. Malenda, 8th Dist. Cuyahoga Nos. 104736, 104829, 2017-Ohio-5574, ¶ 9, citing State v. Thompson, 8th Dist. Cuyahoga No. 104322, 2016-Ohio-8310, ¶ 4. Darling‘s first assignment of error does not relate to the constitutionality of his plea itself, but rather argues a deprivation of his right to choice of counsel in the first case, CR-15-59913-A, which wаs eventually dismissed without prejudice.
{¶14} The United States Supreme Court has stated:
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly
admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to thе entry of the guilty plea.
Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Darling waived the Sixth Amendment challenges in his first and second assignments of error because they are premised upon events that occurred prior to the entry of his guilty plea, and he does not assert that these events affected the validity of his plea.
{¶15} Moreover, even if Darling had not waived these challenges, the Sixth Amendment right to choice of counsel is not impliсated here, nor can we assign error because Darling‘s first retained attorney voluntarily withdrew before the state‘s motion was ruled upon by the trial court. See United States v. Dansker, 537 F.2d 40, 64 (3d Cir.1976) (declining to consider a Sixth Amendment claim where defense counsel voluntarily withdrew from the case before a hearing on alleged conflicts could be held); Gover v. Vasbinder, E.D.Mich. No. 2:06-CV-15184, 2009 U.S. Dist. LEXIS 129527, 142 (June 26, 2009) (noting that neither petitioner nor the court were able tо find a single case suggesting that a defense counsel‘s voluntary withdrawal from a case alone implicates the Sixth Amendment right to choice of counsel).
{¶16} Accordingly, the first and second assignments of error are overruled.
{¶17} Darling‘s third and fourth assignments of error relate to the voluntariness of his plea under
{¶18} In order to comply with
{¶19} In his third assignment of error, Darling asserts that his plea is invalid under
{¶20} Here, the trial court questioned Darling:
THE COURT: Do you know if you decided to go to trial and remain silent and not testify, no one could comment on the fact that you did not testify?
[DARLING]: Yes, your Honor.
{¶21} We have hеld that the exact language used by the trial court here is sufficient to inform a criminal defendant of his or her constitutional right not to testify. Id.
{¶22} Accordingly, Darling‘s third assignment of error is overruled.
{¶24} We have previously held that a defendant is not deprived of due process where an offer of a plea bargain is conditioned on acceptance by codefendants. State v. Hlavsa, 8th Dist. Cuyahoga No. 77199, 2000 Ohio App. LEXIS 4885, 14 (Oct. 19, 2000); State v. Cray, 8th Dist. Cuyahoga No. 51534, 1986 Ohio App. LEXIS 9344 (Dec. 18, 1986). “It is well established that there is no constitutional right to engage in plea bargaining.” Cray at 5, citing Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) and North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). “Package deal” plea offers are not per se unconstitutional. State v. Franks, 9th Dist. Summit No. 18767, 1998 Ohio App. LEXIS 4756, 9 (Oct. 7, 1998). Whеn defendants are advised by competent counsel and are protected by the appropriate procedural safeguards, they are presumptively capable of an intelligent and voluntary choice to plead guilty and forgo trial. Id., citing Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).
{¶25} “Although package deals may present a greater risk of coercion, ‘the
{¶26} In reviewing the trial court‘s plea colloquy and the totality of the circumstances surrounding Darling‘s plea, we find that the trial court fully comрlied with
Sentence
{¶27} In Darling‘s fifth assignment of error, he claims that the trial court failed to make the necessary findings under
{¶28} The presumption under Ohio law is that prison terms are to be served concurrently and provides that а trial court may only impose consecutive sentences after making three distinct findings.
{¶29} We find that the trial court made all of the findings required under
As to whether there is a presumption for concurrent terms, the Court has discretion to impose consecutive sentences if necessary to protect the public and punish, but, of course, that needs to not be disproportionate.
Mr. Darling, this Court takes very seriously the fact that you were distributing or trafficking in heroin. There are people who we have on probation who are dying every day over this type of thing, and it results also on the street for those who are involved in the trade as well, as you just alluded.
* * *
Let me make the finding here just so you‘re — as I said, the presumption is
in favor of concurrent tеrms, with the Court‘s discretion to impose a consecutive sentence. The crimes committed, number one, while he was under sanction to this court. The harm is great. There are people dying in the community. And he has failed to respond favorably in the past.
{¶30} The state asked the court to clarify that Darling was under a community control sanction at the time of these offenses:
[PROSECUTOR]: Judge, we would just ask that thе additional finding that these crimes were committed while he was under community control.
THE COURT: I did say that.
{¶31} Darling argues that these statements made by the trial court do not amount to the required findings. The Ohio Supreme Court has held:
In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation tо state reasons to support its findings. Nor is it required to give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry.
(Emphasis added.) Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 37.
{¶33} Accordingly, Darling‘s fifth assignment of error is overruled.
{¶34} In his sixth assignment of error, Darling asserts that the trial court erred in imposing fines and court costs because the record “fails to disclose any proof” that the trial considered his present and future ability to pay. The trial court waived discretionary fines, but imposed the mandatory fine under
{¶35} A trial court has broad discretion when imposing financial sanctions upon a defendant, and an appellate court will review the trial court‘s decision for an abuse of discretion. State v. Ficklin, 8th Dist. Cuyahoga No. 99191, 2013-Ohio-3002, ¶ 5, citing State v. Schneider, 8th Dist. No. 96953, 2012-Ohio-1740, ¶ 9. An abuse of discretion implies an arbitrary, unreasonable, or unconscionable attitude on the part of the trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶36} This court has held that
imposition of the mandatory fine [under
R.C. 2929.18(B)(1) for felony drug offenses of the first, second or third-degree] is required unless: (1) the
offender files an affidavit оf indigence prior to sentencing, and (2) the trial court finds that the offender is an indigent person and is unable to pay the mandatory fines.
(Emphasis added.) State v. Raimundy-Torres, 8th Dist. Cuyahoga No. 101490, 2015-Ohio-1450, ¶ 12, citing State v. Gipson, 80 Ohio St.3d 626, 634, 1998-Ohio-659, 687 N.E.2d 750 (1998);
the fact that the affidavit was not properly filed prior to sentencing is, standing alone, a sufficient reason to find that the trial court сommitted no error by imposing the statutory fine.
Gipson at 633. In failing to file an affidavit of indigency prior to sentencing, Darling failed to meet the requirements of
{¶37} We note that Darling did not object to the trial court‘s imposition of the mandatory fine at the sentencing hearing. This court has found:
It is clear thаt the court should consider the impact a fine has on the offender, however, the court is required to consider such factors only if evidence is offered at the sentencing hearing. Where the offender does not object at the sentencing hearing to the amount of the fine and does not request an opportunity to demonstrate to the court that he does not have the resourсes to pay the fine, he waives any objection to the fine on appeal.
State v. Frazier, 8th Dist. Cuyahoga No. 71675-78, 1997 Ohio App. LEXIS 4560, 16 (Oct. 9, 1997), citing State v. Burkitt, 89 Ohio App.3d 214, 229, 624 N.E.2d 210 (2d Dist.1993). Therefore, Darling waived a challenge to the trial court‘s imposition of the mandatory fine.
{¶39} Accordingly, Darling‘s sixth assignment of error is overruled.
{¶40} Judgment affirmed. The matter is remanded for the limited purpose of having the trial court incorporate its consecutive sentence findings in a nunc pro tunc sentencing journal entry.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonablе grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated.
MARY EILEEN KILBANE, PRESIDING JUDGE
MARY J. BOYLE, J., and SEAN C. GALLAGHER, J., CONCUR