[Cite as State v. Pendergrass, 2017-Ohio-2752.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104332
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
MICHAEL PENDERGRASS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-598477-A
BEFORE: McCormack, P.J., E.T. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: May 11, 2017 ATTORNEY FOR APPELLANT
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 TIM McCORMACK, P.J.:
{¶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 charges
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 counts of rape, in violation of R.C. 2907.02(A)(2), and the attendant one- and
three-year firearm specifications (Counts 1, 2, and 3); three counts of complicity to
commit rape, in violation of R.C. 2923.03(A)(2), and the attendant one- and three-year
firearm specifications (Counts 4, 5, and 6); aggravated robbery, in violation of R.C.
2911.01(A)(3), and its attendant one- and three-year firearm specifications (Count 13);
and kidnapping, in violation of R.C. 2905.01(A)(4), and its attendant one- and three-year
firearm specification (Count 17). In exchange for the guilty plea, the state agreed to
dismiss all remaining charges against Pendergrass, as well as the sexually violent predator
specifications and sexual motivation specifications. {¶4} At the sentencing hearing, the prosecutor presented the facts of the case,
where he explained how two male strangers drove up to the victim, who was walking on
Cleveland’s west side, and asked the victim if she wanted to party. According to the
prosecutor, the two men then, at gunpoint, forced the victim into the car, and they
proceeded to drive around the west side. The prosecutor stated that the two men took
turns beating and raping the victim. Both men raped her vaginally, anally, and orally.
When they were finished, they “dumped” the victim, naked, in a parking lot. They threw
some clothes at her. She was eventually able to call for help. An ambulance took her
to the hospital for treatment. The victim suffered bruising to her right eye, face, and
arms. She also had blood coming from her mouth, resulting from a cut in her mouth,
and she had redness and swelling in her vaginal area. The hospital conducted a rape kit,
and DNA evidence was collected. Several years later, a CODIS hit linked this DNA
evidence to Pendergrass and his codefendant.
{¶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 sentenced 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 consecutively, after making the consecutive sentence findings in accordance with R.C.
2929.14(C)(4). The court then sentenced Pendergrass to concurrent six-year prison
terms on each of the remaining charges, which included three counts of complicity
(Counts 4, 5, and 6), aggravated robbery (Count 13), and kidnapping (Count 17). The
court ordered the sentences on these remaining charges to be served concurrently with the
rape charges. The court also ordered the sentence in this case to be served concurrently
with the sentence Pendergrass is presently serving on another matter. The total prison
sentence is 20 years.
{¶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:
I. 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.
II. 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.
III. The trial court erred by imposing consecutive sentences that are contrary to law and not supported by the record. IV. 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 appoint 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 make 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 magnitude as to jeopardize a defendant’s right to effective assistance of counsel.’” State
v. Coleman, 37 Ohio St.3d 286, 292, 525 N.E.2d 792 (1988), quoting People v. Robles, 2
Cal.3d 205, 215, 85 Cal.Rptr. 166, 466 P.2d 710 (1970). Defendant’s right to counsel
“‘does not extend to counsel of the defendant’s choice.’” Patterson at ¶ 20, quoting
Thurston v. Maxwell, 3 Ohio St.2d 92, 93, 209 N.E.2d 204 (1965).
{¶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 bad 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 unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶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 discussed 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 for 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 trial date, counsel ultimately gave his client copies of the DNA reports and the victim’s
statements. Finally, counsel explained that he and his client recently had “a very good
discussion” regarding a possible change of plea, which was Pendergrass’s expressed
intent, and the fact that Pendergrass now desires new counsel is surprising.
{¶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 to 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 {¶22} In his second assignment of error, Pendergrass contends that the trial court
erred by failing to merge the rape and kidnapping convictions. Specifically, he contends
that the kidnapping was “merely incidental to the commission of the other crimes.”
{¶23} R.C. 2941.25, the allied offenses statute, codifies the constitutional right
against double jeopardy, thus prohibiting multiple punishments for the same offense.
State v. Robinson, 8th Dist. Cuyahoga No. 99917, 2014-Ohio-2973, ¶ 53, citing State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. The statute
provides when multiple punishments can and cannot be imposed:
(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
the 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.
R.C. 2941.25; State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 12.
{¶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 conduct “supports more than one offense, the
court must determine whether the offenses merge or whether the defendant may be
convicted of separate offenses. Id. {¶25} In order to make this determination, the trial court must necessarily
consider the defendant’s conduct, specifically considering “how were the offenses
committed.” Id. at ¶ 25. In making this determination, the court must evaluate the
defendant’s conduct, his or her animus, and the import of the offenses:
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 above, 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
convictions 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.). {¶27} Here, Pendergrass pleaded guilty to Count 17, kidnapping in violation of
R.C. 2905.01(A)(4), which provides that “[n]o person, by force, threat, or deception, * *
*, by any means, shall remove another from the place where the other person is found or
restrain the liberty of the other person, * * * [t]o engage in sexual activity * * * with the
victim against the victim’s will.” Pendergrass did not object at sentencing to the court’s
failure to conduct an allied offense analysis on the issue of whether the kidnapping in
Count 17 merged with any other offense. We therefore review for plain error. See
State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3.
{¶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.). {¶29} Here, as in Adams, the victim, at gunpoint, was forced into a car and beaten.
Pendergrass and Adams then took turns raping the victim while driving around the city,
leaving her in a parking lot. See id. at ¶ 14. Under these facts, Pendergrass cannot
demonstrate a reasonable probability that the kidnapping offense would have merged with
his other offenses.
{¶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 R.C. 2929.14(C)(4). Rather, he
argues that the record does not support the findings.
{¶32} In order to impose consecutive sentences, a trial court must make certain findings under R.C. 2929.14(C)(4) and incorporate those findings in the journal entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. R.C. 2929.14(C)(4) requires the court to find that (1) consecutive sentences are necessary to protect the public from future crime or to punish the offender, (2) consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and (3) at least one of the following three findings set forth in R.C. 2929.14(C)(4)(a)-(c) applies:
(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, or 2929.18 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 R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(a); State v. Johnson,
8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536, ¶ 9.
{¶34} Here, the trial court stated that it considered the purposes and principles of
felony sentencing under R.C. 2929.11 and the seriousness and recidivism factors under
R.C. 2929.12 in fashioning its sentence. It also noted that Pendergrass has a prior
criminal record that includes another rape charge for which he is currently serving time.
Prior to imposing sentence, the court stated that it found the facts of the case disturbing
and noted the “severe impact” the assault has had, and will continue to have, on the
victim. Thereafter, the court then found that consecutive sentences are necessary in
order to protect the public from future crime and consecutive sentences are not
disproportionate to the seriousness of Pendergrass’s conduct and the danger that conduct
imposes to the public. The court then found that the offenses were committed as part of
a course of conduct and the harm caused by the multiple offenses was so great or unusual
that no single prison term would adequately reflect the seriousness of the defendant’s
conduct. {¶35} Although acknowledging on appeal “the gravity of the rape offenses,”
Pendergrass alleges that the record does not support the finding that the harm caused by
the multiple offenses committed was so great or unusual to warrant the imposition of a
20-year sentence because, as this was a cold case from 2003, he committed the crimes
while in his 20’s, he accepted responsibility for his actions, he felt badly about what had
occurred, and he apologized for the incident. We disagree. Pendergrass forced the
victim, at gunpoint, into a car and beat her, and then repeatedly raped her, orally,
vaginally, and anally, while driving the victim around the city. During this time,
Pendergrass sat idly by while his codefendant also beat and raped the victim orally,
vaginally, and anally. Pendergrass and Adams then left the victim, half-naked and
bleeding, in a parking lot. She suffered bruising to her eye and face, a cut in her mouth
that has left a permanent scar, hearing loss, unending emotional torment, and difficulty
maintaining employment. Under these circumstances, we cannot find that the record
clearly and convincingly does not support the sentencing court’s consecutive sentence
findings under R.C. 2929.14(C)(4).
{¶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} R.C. 2947.23(A)(1) governs the imposition of court costs and provides that
“[i]n all criminal cases * * * the judge * * * shall include in the sentence the costs of prosecution * * * and render a judgment against the defendant for such costs.” The
statute also provides that the court may order the defendant to perform community service
as a means of paying the court costs. Id.; State v. Clevenger, 114 Ohio St.3d 258,
2007-Ohio-4006, 871 N.E.2d 589, ¶ 10. The statute does not, however, prohibit a court
from assessing costs against an indigent defendant; rather, “it requires a court to assess
costs against all convicted defendants.” State v. White, 103 Ohio St.3d 580,
2004-Ohio-5989, 817 N.E.2d 393, ¶ 8; State v. Brown, 8th Dist. Cuyahoga No. 103427,
2016-Ohio-1546, ¶ 12. A defendant’s financial status is therefore irrelevant for
purposes of imposing court costs. Clevenger at ¶ 3; State v. Bonton, 8th Dist. Cuyahoga
No. 102918, 2016-Ohio-700, ¶ 17.
{¶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 imposed 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 R.C.
2947.23(A)(1) when it imposed court costs regardless of Pendergrass’s indigency. {¶41} Pendergrass’s fourth assignment of error is overruled.
{¶42} Judgment affirmed.
It is ordered that appellee recover of 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 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