STATE OF OHIO, Plaintiff-Appellee, v. DOMINIC HAGAR, Defendant-Appellant.
No. 108317
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
March 12, 2020
2020-Ohio-910
PATRICIA ANN BLACKMON, P.J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-18-625881-A, CR-18-626031-A, CR-18-627536-A, CR-18-629475-A, and CR-18-633038-A
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 12, 2020
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and James M. Rice, Assistant Prosecuting Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and David Martin King, Assistant Public Defender, for appellant.
{¶ 1} Dominic Hagar appeals his guilty plea to multiple counts of aggravated robbery and associated offenses and his resulting prison sentence of 38 years and nine months. Hagar assigns the following errors for our review:
- The trial court erred when it did not order an evaluation for competence to stand trial and sanity at the time of the act prior to taking Mr. Hagar‘s plea in violation of the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution and
Article I, Section 10 of the Ohio Constitution . - The trial court erred when it did not determine that Mr. Hagar understood the nature of the offenses, the effects of the plea, and that he was waiving certain constitutionally guaranteed rights by pleading guilty in violation of the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution and
Article I, Section 10 of the Ohio Constitution . - The trial court erred by denying Mr. Hagar‘s Motion to Remove Counsel in violation of the accused‘s rights under
Article 1 [sic], Section 10 of the Ohio Constitution and the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution andCrim.R. 44 . - The trial court erred by denying the accused‘s Motion to Withdraw his plea in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution and
Article I, Section 10 of the Ohio Constitution . - Mr. Dominic Hagar was denied Due Process when the trial court failed to make a finding as to the accused‘s mental health prior to proceeding to sentence in violation of the Fifth, Eighth and Fourteenth Amendments to the U.S. Constitution and
Article I, Section 10 of the Ohio Constitution . - The trial court abused its discretion by imposing a prison sentence contrary to
R.C. 2929.11 andR.C. 2929.12 and the purposes and principles of felony sentencing guidelines thereby denying Mr. Hagar Due Process of law in violation of the Fifth,Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution . - Mr. Dominic Hagar was denied the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution and
Article I, Section 10 of the Ohio Constitution . - The cumulative impact of the errors reflected in this record amounted to a denial of due process and the right to a fair trial in violation of the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution and
Article I, Section 10 of the Ohio Constitution .
{¶ 2} Having reviewed the record and pertinent law, we affirm the trial court‘s judgment. The apposite facts follow.
{¶ 3} On October 17, 2018, Hagar pled guilty to seven counts of aggravated robbery, one count of attempted aggravated robbery, one count of robbery, and one count of having a weapon while under disability, all with firearm specifications, in five separate criminal cases. All charges were the result of nine robberies Hagar committed between November 2017 and January 2018.
{¶ 4} On October 29, 2018, Hagar, who was represented by retained counsel at the time, filed a pro se motion to withdraw his plea, and on November 14, 2018, he filed a pro se motion to disqualify his counsel. The court held a hearing on November 27, 2019, and denied Hagar‘s motion to disqualify counsel, because Hagar‘s attorney was retained. The court notified Hagar that he could retain another attorney if he so wished and continued the hearing for a one-week period to give Hagar an opportunity to retain different counsel. The court did not rule on Hagar‘s pro se motion to withdraw his guilty plea at this time. Furthermore, Hagar did not retain different counsel.
{¶ 6} On January 8, 2019, the court issued a journal entry regarding Hagar‘s mental health evaluation, the pertinent parts of which follow:
Hearing waived. Parties waive hearing in open court and on the record and stipulate by journal entry to the court psychiatric clinic report. * * * In his/her report dated 01/08/2019, Dr. Stephen Noffsinger, M.D., opined that the defendant refused or was unable to cooperate with the evaluation. Accordingly, Dr. Stephen Noffsinger, M.D., was unable to render an opinion as to the defendant‘s competency to stand trial. Therefore, and pursuant to
R.C. 2945.371(C) and(D) , the court orders the defendant to North Coast Behavioral Health for an inpatient competency evaluation * * *.
{¶ 7} The court held a sentencing hearing on February 14, 2019. At this hearing, the court denied Hagar‘s pro se motions to withdraw his guilty plea. The court also addressed Hagar‘s competency evaluation. According to the court, Dr. Noffsinger‘s January 8, 2019 report indicated a concern that Hagar “might be malingering.” The court then read into the record portions of Hagar‘s February 6, 2019 inpatient competency evaluation from Northcoast Behavioral Healthcare, the pertinent parts of which follow.
{¶ 8} There is no record or history of Hagar being assessed, diagnosed, or treated for any prior mental illness or psychiatric issues. “There are observations
{¶ 9} The court sentenced Hagar to 38 years and nine months in prison, which represents the minimum sentence for each count, plus the firearm specification sentences, all to run consecutive to one another. It is from this plea and sentence that Hagar appeals.
Competency
{¶ 10} Hagar‘s first and fifth assigned errors will be addressed together. Hagar argues that the court erred by not ordering an evaluation, prior to accepting his guilty plea, of his competency to stand trial and his sanity1 at the time he committed the offenses. Hagar also argues that the court erred by failing to make a finding as to Hagar‘s mental health prior to sentencing him.
{¶ 11} Pursuant to
[a] defendant is presumed to be competent to stand trial. If, after a hearing, the court finds by a preponderance of the evidence that, because of the defendant‘s present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant‘s defense, the court shall find the defendant incompetent to stand trial * * *.
{¶ 12} The issue of competency may be raised by the court, the prosecutor, or the defendant, and the defendant “must carry the burden of proving, by a preponderance of the evidence, that he is not competent to stand trial.” State v. Williams, 23 Ohio St.3d 16, 28, 490 N.E.2d 906 (1986). “If the issue is raised before the trial has commenced, the court shall hold a hearing on this issue * * *. If the issue is raised after the trial has commenced, the court shall hold a hearing on the issue only for good cause shown or on the court‘s own motion.”
{¶ 13} In the case at hand, the issue of Hagar‘s competency was not raised until November 30, 2018, when defense counsel filed a motion requesting a mental health evaluation of Hagar. This was more than a month after Hagar pled guilty. In this motion, Hagar‘s retained counsel states that Hagar‘s mother informed him on November 29, 2018, that Hagar “has expressed suicidal thoughts in phone conversations from the Cuyahoga County Jail.” According to defense counsel, this was something “unbeknownst to counsel prior to the defendant entering guilty pleas.”
{¶ 14} Upon review, we find that, at the time of the plea on October 17, 2018, there was no evidence to indicate that Hagar‘s mental health was at issue. Therefore,
{¶ 15} Hagar underwent a competency evaluation, and the parties waived the hearing and stipulated to his court psychiatric clinic report. In this report, the doctor was unable to render an opinion, and the court ordered Hagar to Northcoast Behavioral Healthcare for an inpatient competency evaluation. The court next addressed Hagar‘s competency at the February 14, 2019 sentencing hearing, finding that Hagar‘s inpatient evaluation suggested malingering and that he was competent to stand trial. Accordingly, Hagar‘s fifth assigned error, which suggests that the court failed to make a finding regarding his mental health, is overruled.
Crim.R. 11 Guilty Plea
{¶ 16} In Hagar‘s second assigned error, he argues that he “was in no state of mind to enter into his plea” because of his alleged mental health issues.
{¶ 17} When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution. State v. Hanson, 8th Dist. Cuyahoga No. 99362, 2013-Ohio-3916, citing State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450.
{¶ 18} To ensure that a plea to a felony charge is knowingly, intelligently, and voluntarily entered into, a trial court must follow the dictates of
{¶ 19} This court conducts a de novo review to determine whether the trial court accepted a plea in compliance with
{¶ 20} In the case at hand, Hagar raises only one issue with respect to the trial court‘s lack of compliance with
So, sometimes when we go through this, part of my obligation is for me to make certain that you understand. My whole goal in this process is to make sure that whatever decision you make is made knowingly, voluntarily and intelligently.
So, the knowing part, we‘re going to go through all these charges and I‘m going to make sure you understand what charges you are pleading guilty to. I‘m also going to make sure that you understand what your maximum possible sentence might be.
The voluntary intelligent part, we just kind of covered that. How far did you go in school, if you can read and write. By my other conversations I‘ve had with you, I don‘t have any questions about your intelligence or your intellectual ability.
And the voluntary party, we will talk about that to make sure that whatever your decision is in fact your decision and someone isn‘t making you do this.
{¶ 22} The court then informed Hagar of the constitutional rights he was giving up by pleading guilty, including, but not limited to, the right to go to trial before a jury, the right to cross-examine witnesses, and the right to call witnesses on his behalf. Next, the court reviewed the various felonies and specifications to which Hagar was pleading guilty and informed Hagar that he was facing a maximum sentence of 135 years in prison, plus fines and restitution. The court informed Hagar that he would be serving a prison sentence as a result of his plea and he would subsequently be subject to postrelease control. The court discussed the effects of the plea with Hagar and informed him that he would order a presentence-investigation report before proceeding to sentencing. Multiple times the court asked Hagar if he
{¶ 23} Upon review, we find that the trial court fully complied with
Motion to Withdraw Guilty Plea
{¶ 24} In Hagar‘s fourth assigned error, he argues that the court erred by denying both of his pro se motions to withdraw his guilty plea.
{¶ 25} “Although a defendant is not vested with an absolute right to withdraw a guilty plea, a motion for withdrawal made prior to sentencing is to be freely allowed and liberally treated.” State v. Johnson, 8th Dist. Cuyahoga No. 83350, 2004-Ohio-2012, ¶ 34. See also State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980);
{¶ 26} Appellate courts review denials of motions to withdraw guilty pleas for an abuse of discretion. State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992). It is not an abuse of discretion to deny a motion to withdraw a guilty plea:
(1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to
Crim.R. 11 , before he entered the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion, and (4) where the record reveals that the court gave full and fair consideration to the plea withdrawal request.
Peterseim at paragraph three of the syllabus.
{¶ 28} In the instant case, Hagar‘s argument concerning the court‘s denial of his motions to withdraw guilty plea centers around his alleged mental health issues. Earlier in this opinion, we found no merit to Hagar‘s argument that he was incompetent to stand trial or that his mental health affected these proceedings in any other way. The only evidence in the record concerning Hagar‘s mental health are two psychiatric evaluations. The first one stated that a clinical opinion on Hagar‘s mental health was inconclusive because Hagar was malingering, and the second one concluded that, after further inpatient clinical evaluation, Hagar was competent to stand trial.
Ineffective Assistance of Counsel
{¶ 30} In his third assigned error, Hagar argues that the court erred by denying his pro se motion to remove counsel, and in his seventh assigned error, Hagar argues that his counsel was ineffective in representing him in the case at hand. Specifically, Hagar argues that his counsel failed to address his mental health issues, misled Hagar as to what would be filed in court, and coerced his plea.
{¶ 31} We find no error in the court‘s denying Hagar‘s pro se motion to remove counsel, because Hagar‘s counsel was retained and of his own choosing. Hagar was free to terminate defense counsel‘s representation of him and retain new counsel. The court acknowledged this and granted Hagar a one-week continuance to pursue this option. However, Hagar failed to terminate counsel, look for new counsel, or move for a continuance. At his sentencing hearing, Hagar again requested “new” counsel as well as “another [mental health] evaluation from a different doctor * * *.” In denying Hagar‘s request for another attorney, the court
{¶ 32} Upon review, we find no error in the court‘s denying Hagar‘s pro se motion to remove counsel. Accordingly, Hagar‘s third assigned error is overruled.
{¶ 33} To succeed on a claim of ineffective assistance of counsel, a defendant must establish that his or her attorney‘s performance was deficient and that the defendant was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, “a court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel‘s performance.” Id. at 697. See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 3743 (1989).
{¶ 34} Hagar alleges that “[c]ounsel‘s deficient performance in this case was manifest in his failing to address Mr. Hagar‘s mental health issues prior to entering his plea.” Hagar also argues that counsel should have “joined” Hagar‘s pro se motions to remove counsel and withdraw his plea and that counsel was deficient for not challenging his sentence. Again, the gist of Hagar‘s argument is that his counsel was ineffective, and as a result Hagar was prejudiced, by failing to consider “the fundamental issue of [Hagar‘s] competency.” However, given the disposition of Hagar‘s previous assigned errors, we find no merit to this argument.
{¶ 36} Furthermore, given the prohibition of hybrid representation, counsel could not have “joined” Hagar‘s motion to remove defense counsel. Because defense counsel was retained, it was within Hagar‘s control to terminate the representation. Accordingly, Hagar‘s seventh assigned error is overruled.
Felony Sentencing
{¶ 37} In his sixth assigned error, Hagar argues that the court “abused its discretion by imposing a prison sentence contrary to
{¶ 38}
{¶ 40} Pursuant to
{¶ 41} Furthermore, in imposing a felony sentence, “the court shall consider the factors set forth in [
{¶ 42} We first note that Hagar is not appealing the trial court‘s imposition of consecutive sentences in this case.2 Rather, Hagar argues that his 38-year-and 9-month prison sentence is “absurd” and “clearly inconsistent with felony sentencing guidelines.” Specifically, Hagar contends that “the trial court abused its discretion by failing to properly weigh the seriousness and recidivism factors set forth in
{¶ 43} Upon review, we find that Hagar‘s sentence is not contrary to law. The trial court considered the sentencing factors found in
I reviewed your extensive criminal history. It does include a prior criminal history, prior history of violence, a prior history of probation violations, a prior rather lengthy 12-year prison sentence that was aggravated robbery with firearm specifications.
And so reviewing those purposes and principles set forth in felony sentencing and with all these issues in mind, I do not feel that you are amenable to community control sanctions.
* * *
One of the things that I am very mindful of, and the sergeant alluded to it, that there are victims in this case, there are at least nine different victims here, and I believe that they each deserve a sentence that represents the crime that occurred to them.
* * *
[T]hese sentences represent the minimum sentence that you would receive on each individual case were they to come in here. * * * [A]ny one of those sentences which you pled guilty to, that would be the minimum sentence that you would be entitled to receive. That is reflective of the level of cooperation that you gave to the State and it‘s also reflective of your acceptance of responsibility here.
{¶ 44} The court then found that Hagar did not “deserve” the minimum sentence in each count, because of his prior criminal history including probation violations and firearm specifications. The court noted that probation violation convictions demonstrated that Hagar was likely to reoffend. Additionally, the court found that
consecutive sentences are necessary to protect the public from future crimes and to punish you and that consecutive sentences are not disproportionate to the seriousness of your conduct and to the danger you pose to the public, again, you have a criminal history of this exact same thing, and we have nine different victims here so your course of conduct and the harm caused by these multiple offenses that you committed were so great or unusual that no single prison term for any of these offenses committed as part of the course of conduct would adequately reflect the seriousness of your conduct.
{¶ 45} Upon review, we find that the record supports the sentencing court‘s statutory findings. For example, the court considered Hagar‘s criminal history, the impact of his crimes on the victims, the seriousness of his conduct, and the likelihood of recidivism. Furthermore, the court sentenced Hagar to the minimum
Cumulative Errors
{¶ 46} In this eighth and final assigned error, Hagar argues that the cumulative impact of the aforementioned assigned errors amounted to a due process violation. “Under the doctrine of cumulative error, a conviction will be reversed when the cumulative effect of errors * * * deprives a defendant of the constitutional right to a fair trial even though each of the errors does not individually constitute cause for reversal.” State v. Allen, 8th Dist. Cuyahoga No. 102385, 2016-Ohio-102, ¶ 21. Upon review, we find that this doctrine does not apply to the instant case, because we do not find multiple instances of harmless error. Hagar‘s eighth assigned error is overruled.
{¶ 47} Judgment affirmed.
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 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 is terminated. Case remanded to the trial court for execution of sentence.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
EILEEN A. GALLAGHER, J., CONCUR