STATE OF OHIO v. MICHAEL PENDERGRASS
No. 104332
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 11, 2017
[Cite as State v. Pendergrass, 2017-Ohio-2752.]
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-598477-A
JUDGMENT: AFFIRMED
BEFORE: McCormack, P.J., E.T. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: May 11, 2017
Joseph V. Pagano
P.O. Box 16869
Rocky River, OH 44116
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Edward R. Fadel
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
{1} Defendant-appellant Michael Pendergrass appeals from his conviction following a guilty plea. For the reasons that follow, we affirm.
Procedural and Substantive History
{2} In August 2015, Pendergrass and his codefendant, Nathaniel Adams, were indicted on multiple charges stemming from a rape that occurred in 2003. The chаrges included several counts of rape, complicity to commit rape, aggravated robbery, and kidnapping. All charges included one- and three-year firearm specifications. Several counts included a sexually violent predator specification and/or sexual motivation specification.
{3} Ultimately, a plea agreement was reached. Pendergrass pleaded guilty to three cоunts of rape, in violation of
{5} The court heard from the victim, who stated that she has endured physical pain, including some hearing loss and a scar in her mouth, and 12 years of emotional torment. The victim also stated that as a result of the brutal attack, she has lost jobs and wages and she has had difficulty paying her bills.
{6} Pendergrass and defense counsel offered statements in mitigation.
{7} Thereafter, the court sentencеd Pendergrass to six years in prison on the rape in Count 1, six years on the rape in Count 2, and five years on the rape in Count 3, as well as three years on the merged firearm specifications. The court ran the sentences
{8} After imposing sentence, the trial court advised Pendergrass of mandatory postrelease control and the consequences for violation. The court then imposed court costs and ordered that Pendergrass may perform court community work service in lieu of paying costs.
{9} Pendergrass now appeals from his sentence, assigning the following errors for our review:
- Appellant‘s Sixth Amendment right to effective assistance of counsel was violated by the trial court‘s denial of his request to appoint new counsel.
- The trial court erred by failing to merge all allied offenses of similar import and by imposing separate sentences for allied offenses which violated appellant‘s state and federal rights to due process and protections against double jeopardy.
- The trial court erred by imposing consecutive sentences that are contrary to law and not supported by the record.
The trial court erred by imposing costs where it found appellant indigent and failed to consider his inability to pay.
Ineffective Assistance of Counsel
{10} In his first assignment of error, Pendergrass states that he requested new counsel prior to the plea hearing, and the trial court denied his right to effective assistance of counsel when the court failed to appоint new trial counsel.
{11} Generally, when a defendant moves to disqualify his or her court-appointed counsel, it is the trial court‘s duty to inquire into the complaint and make it a part of the record. State v. Corbin, 8th Dist. Cuyahoga No. 96484, 2011-Ohio-6628, ¶ 19, citing State v. Lozada, 8th Dist. Cuyahoga No. 94902, 2011-Ohio-823. The inquiry, however, need only be brief and minimal. State v. King, 104 Ohio App.3d 434, 437, 662 N.E.2d 389 (4th Dist.1995).
{12} The defendant bears the burden of demonstrating proper grounds for the appointment of new counsel. State v. Patterson, 8th Dist. Cuyahoga No. 100086, 2014-Ohio-1621, ¶ 18. “If a defendant alleges facts which, if true, would require relief, the trial court must inquire into the defendant‘s complaint and makе the inquiry part of the record.” Id., citing State v. Deal, 17 Ohio St.2d 17, 20, 244 N.E.2d 742 (1969). The grounds for disqualification must be specific, not “vague or general.” State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 68.
{13} Additionally, in order for the court to discharge a court-appointed attorney, the defendant must show “a breakdown in the attorney-client relationship of such
{14} Moreover, the defendant‘s request for new counsel must be timely. And where the defendant makes a timely request for new counsel and has demonstrated good cause, the trial court‘s “failure to honor [the] timely request * * * would constitute a denial of effective assistance of counsel.” State v. Armstrong, 8th Dist. Cuyahoga No. 82497, 2003-Ohio-6891, ¶ 22.
{15} When timing is an issue, the trial court may determine whether the defendant‘s request for new counsel was made in bаd faith. State v. Price, 8th Dist. Cuyahoga No. 100981, 2015-Ohio-411, ¶ 18, citing State v. Graves, 9th Dist. Lorain No. 98CA007029, 1999 Ohio App. LEXIS 5992 (Dec. 15, 1999). A request for new counsel made on the day of trial “‘intimates such motion is made in bad faith for the purposes of delay.‘” Price, quoting State v. Haberek, 47 Ohio App.3d 35, 41, 546 N.E.2d 1361 (8th Dist.1988).
{16} We review a trial court‘s decision whether to remove court-appointed counsel for an abuse of discretion. Patterson, 8th Dist. Cuyahoga No. 100086, 2014-Ohio-1621, at ¶ 19. An abuse of discretion implies that the court‘s decision was
{17} Here, on the day of trial, Pendergrass expressed concern regarding his court-appointed counsel, agreeing with the court‘s characterization of “having second thoughts” about his attorney. The court then inquired of Pendergrass regarding his concerns. Pendergrass stated that he had not had any conversations with his attorney about the case, he has not had an opportunity to review the evidence in his case, and the victim‘s statement that was provided to him in March 2016 conflicted with the information disсussed with him during a taped interview. Pendergrass stated that his “problem” is that his attorney “never came and conversated [sic] with me or explained nothing about this case * * * I‘ve just been sitting here for 184 days knowing nothing” and that he has only met with his attorney on two occasions.
{18} In response, defense counsel stated that he has visited with his counsel more than twice while Pendergrass was in jail and he has met with him when Pendergrass was brought to the court fоr pretrials. Counsel stated that he and his client discussed the facts of the case, and in response to Pendergrass‘s request, they discussed obtaining a plea agreement. Counsel also explained to the court that the reason his client has not reviewed all of the evidence in the case is because much of the discovery is “marked [for] counsel only,” as a means of preventing the distribution of confidential information being distributed throughout the jail. Nonetheless, counsel advised the court that because Pendergrass was “so insistent on getting them” and because they were very close to the
{19} Thereafter, the trial court continued a discussion with Pendergrass. The court explained how matters of confidentiality typically prevent disclosure of some evidence to someone in jail, but the evidence may certainly be discussed with counsel in order to formulate trial strategy. The court also considered the “disharmony” between Pendergrass and counsel, as well as the untimeliness of Pendergrass‘s request, noting that there was “plenty of opportunity” prior to the day of trial to raise any issues Pendergrass may have had regarding counsel. Pendergrass indicated that he understood. Finally, after advising Pendergrass that his court-appointed counsel is a “well-qualified” and “competent” attorney who is ready to try the case should it proceed tо a trial, the trial court denied Pendergrass‘s request for new counsel.
{20} Under the circumstances, we do not find the trial court abused its discretion in denying Pendergrass new counsel. The court considered Pendergrass‘s request at length and found the request was untimely and not supported by good cause. The denial of new counsel, therefore, did not constitute a denial of the effective assistance of counsel.
{21} Pendergrass‘s first assignment of error is overruled.
Allied Offenses
{23}
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of thе same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{24} In Ruff, the Ohio Supreme Court explained that when a defendant‘s conduct constitutes a single offense, the defendant may only be convicted and sentenced for that offense. Id. at ¶ 24. However, when the cоnduct “supports more than one offense, the court must determine whether the offenses merge or whether the defendant may be convicted of separate offenses. Id.
As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of
R.C. 2941.25 , courts must ask three questions when defendant‘s conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation?
Id. at ¶ 31. If the answer is “yes” to any of the аbove, the defendant may be convicted of all of the offenses separately. Id.
{26} The court in Ruff continued to explain that
[w]hen a defendant‘s conduct victimizes more than one person, the harm for each person is separate and distinct, and therefore, the defendant can be convicted of multiple counts. Also, a defendant‘s conduct that constitutes two or more offenses against a single victim can support multiple convictiоns if the harm that results from each offense is separate and identifiable from the harm of the other offense.
Id. at ¶ 26; State v. Black, 2016-Ohio-383, 58 N.E.3d 561, ¶ 12 (8th Dist.).
{28} In State v. Adams, 8th Dist. Cuyahoga No. 104331, 2016-Ohio-8330, this court decided the appeal of Pendergrass‘s codefendant, Nathaniel Adams, in which Adams also alleged on appeal that the trial court erred in failing to merge the kidnapping with his other offenses. Pendergrass and Adams were sentenced together, and the record shows that Adams did not object at sentencing to this same merger issue. In Adams‘s appeal, we reviewed for plain error and found that based on the facts and circumstances of this case, Adams could not demonstrate a reasonable probability that the kidnapping offense would have merged with the rape offenses. In support, we stated:
“Ohio courts have long held that where captivity is prolonged, or the movement of the victim is so substantial that it becomes significantly independent of any other criminal act, there exists a separate animus to support the kidnapping conviction. See State v. Houston, 1st Dist. Hamilton No. C-130429, 2014-Ohio-3111, ¶ 22. In such cases, the kidnapping offense ceases to be incidental to the underlying felony from which it might have originated. See id. at ¶ 23.”
Adams at ¶ 13, quoting State v. Cotton, 2015-Ohio-5419, 55 N.E.3d 573, ¶ 29 (8th Dist.).
{30} Pendergrass‘s second assignment of error is overruled.
Consecutive Sentences
{31} In his third assignment of error, Pendergrass contends that the trial court erred by imposing consecutive sentences. Pendergrass does not argue that the trial court failed to make the consecutive sentence findings under
{32} In order to impose consecutive sentences, a trial court must make certain findings under
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under postrelease control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{33} An appellate court may increase, reduce, or modify a sentence on appeal if it “clearly and convincingly” finds that the record does not support the sentencing court‘s findings made under
{34} Here, the trial court stated that it considered the purposes and principles of felony sentencing under
{36} Pendergrass‘s third assignment of error is overruled.
Court Costs
{37} In his final assignment of error, Pendergrass alleges that the trial court erred in imposing costs where it found him indigent and it failed to consider his inability to pay.
{38}
{39} The trial court, however, has the discretion to waive court costs if the defendant makes a motion to waive costs. Brown at ¶ 13, citing State v. Walker, 8th Dist. Cuyahoga No. 101213, 2014-Ohio-4841, ¶ 9. This discretion to waive costs also includes the discretion not to waive them. State v. Gilbert, 8th Dist. Cuyahoga No. 104355, 2016-Ohio-8308, ¶ 6.
{40} Here, defense counsel moved the court to consider Pendergrass indigent for purposes of imposing court costs and any fine. The court determined that Pendergrass was indigent, but it nevertheless imposеd costs. The court advised Pendergrass that he may perform court community work service in lieu of costs. Further, the court did not impose a fine. We find in this case the trial court acted within its discretion under
{42} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appеal.
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. 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.
TIM McCORMACK, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR