[Cite as State v. Richmond, 2017-Ohio-2656.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 104713
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEMETRIUS E. RICHMOND
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART; REVERSED AND REMANDED IN PART
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-598288-A
BEFORE: Jones, J., Blackmon, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: May 4, 2017 ATTORNEY FOR APPELLANT
Paul A. Mancino, Jr. Mancino, Mancino & Mancino 75 Public Square Building, Suite 1016 Cleveland, Ohio 44113-2098
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor
BY: Edward R. Fadel Mary McGrath Assistant County Prosecutors The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant Demetrius Richmond appeals his conviction and
sentence handed down after he pleaded guilty to two counts of rape. We affirm his
conviction but reverse and remand his case for the limited purpose of addressing the
findings required for the court to impose consecutive sentences, for the trial court to
compute the correct days of jail-time credit, and to issue a nunc pro tunc sentencing entry
showing Richmond’s jail-time credit.
{¶2} In 2015, Richmond was charged with three counts of rape, one count of
attempted rape, two counts of aggravated burglary, and two counts of kidnapping in two
incidents involving two separate victims, D.R. and E.L. Two of the rape counts, the
attempted rape, one count of aggravated burglary, and one count of kidnapping also
alleged three-year firearm specifications. The incident with E.L. occurred on September
3, 1995. The incident with D.R. occurred on July 6, 1996.
{¶3} During the pretrial process, Richmond moved to fire his court-appointed
counsel. On March 3, 2016, the state proposed a plea and the trial court addressed
Richmond’s motion on the record. Richmond told the court that there was a lack of
communication with counsel and he kept asking for discovery but had not received it
from his attorney. The court noted that Richmond had in fact just received discovery
and informed Richmond that his counsel had pretried the case with the state and filed
motions on his behalf. Defense counsel told the court that there were complications
with the case because it was considered a “cold case,” there were numerous discovery documents marked “counsel only” due to nature of the cases, and there had been delays
because counsel sought independent DNA testing. Counsel also explained that he had
met at least four times with his client during the pendency of the case and had just secured
a plea offer from the state.
{¶4} The trial court denied Richmond’s motion.
{¶5} On the day the case was set for trial, June 8, 2016, Richmond again told the
court he wanted a new attorney. He told the court his attorney had lied to him “three
times,” told him certain laws did not exist, and was deceitful and dishonest. The court
told Richmond that he was represented by a skilled and experienced attorney who had a
thorough knowledge of the law and that Richmond should be careful not to listen to
“jailhouse lawyers.” The court also explained to Richmond that he had an obligation to
work with his attorney and did not get to choose his appointed lawyer. The court again
went over the many times counsel had been to the court to pre-try the case with the state.
{¶6} Richmond’s counsel repeated the steps he had taken to advocate for his client
and told the court it was difficult to speak with his client in jail because his client kept
“hanging up on him.”
{¶7} The court ruled that Richmond failed to demonstrate that his attorney should
be removed from the case.
{¶8} Richmond entered into a plea agreement with the state. When asked by the
court during the plea colloquy if he was satisfied with the representation of his attorney,
Richmond answered in the affirmative. Richmond pleaded guilty to two counts of rape and the court proceeded to sentencing. The court sentenced him to two concurrent terms
of six years in prison to be served consecutive to the 28-year sentence he was serving in
another case. The court classified Richmond as a sexual predator.
{¶9} Richmond appealed and raises the following assignments of error for our
review:
I. Defendant was denied due process of law when the court did not conduct a full and fair hearing concerning his motion to disqualify court-appointed counsel.
II. Defendant was denied due process of law when the court did not correctly inform defendant concerning applicable penalties.
III. Defendant was denied due process of law when the court imposed a consecutive sentence without making any findings nor having a presentence investigation report.
IV. Defendant was denied due process of law when the court failed to include in its sentencing entry any jail credit.
V. Defendant was denied due process of law when the court failed to rule
on defendant’s motion to dismiss.
Motion to Disqualify Counsel
{¶10} 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). {¶11} 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.
{¶12} 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, 466 P.2d 710 (1970). Similar to what the trial court told Richmond in
this case, a 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).
{¶13} We review a trial court’s decision whether to remove court-appointed
counsel for an abuse of discretion. Patterson 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).
{¶14} We find no abuse of discretion in this case. The trial court conducted two
extensive hearings into Richmond’s accusations. Richmond’s complaints appear to have stemmed from his belief that his attorney had withheld discovery from him and lied to
him about the law. The court considered Richmond’s concerns and explained to
Richmond the nature of discovery and the pretrial process and assured Richmond that he
was being represented by a competent and experienced attorney. Counsel explained to
the court that, due to the cases being sexual assault cases, much of discovery was marked
“for counsel only,” so he was not allowed to share some file documents with his client.
During both hearings, defense counsel informed the court about the pretrials he had had
with the state, the status of the independent DNA testing, witness interviews, and
discovery. Counsel also explained to the court that he had met with Richmond in jail on
many occasions, but faced difficulty because Richmond often hung up on him (counsel
and Richmond would talk face-to-face via phones). Counsel did not, however, indicate
that his communication issues with Richmond inhibited him from preparing for trial.
“[A] lack of rapport is not sufficient to constitute a total breakdown when it does not
inhibit the attorney from both preparing and presenting a competent defense.” State v.
Brown, 8th Dist. Cuyahoga No. 103835, 2016-Ohio-5415, ¶ 16-17, citing State v. Davis,
8th Dist. Cuyahoga No. 101208, 2014-Ohio-5144, ¶ 13.
{¶15} In light of the above, we find that the trial court did not abuse its discretion
in denying Richmond’s pro se motion to disqualify counsel. The first assignment of
error is overruled.
Maximum Penalty
{¶16} In the second assignment of error, Richmond claims he was denied due process because the trial court misstated the maximum penalties he could receive at
sentencing. At his June 8, 2016 plea hearing, the trial court misspoke and told
Richmond that he was facing a possible sentence of three to 11 years for each first-degree
felony. In fact, Richmond was facing a possible sentence of three to 11 years for the
1995 rape and a possible sentence of three to ten years for the July 6, 1996 rape. See
generally State v. Thomas, 148 Ohio St.3d 248, 2016-Ohio-5567, 70 N.E.3d 496 (court
held that defendant, who committed a first-degree felony in 1993 and was sentenced in
2014, should have been sentenced under H.B. 86). Thus, the trial court misstated the
possible maximum penalty as to one of the rape counts. The issue is whether that
misstatement, when Richmond was ultimately sentenced to six years concurrent to the
other rape count, denied him due process. We find that it did not.
{¶17} As an initial matter, we note that Richmond did not object to the trial court’s
pronouncement of the maximum possible sentence at his plea hearing; thus, he has
waived all but plain error. State v. Caplinger, 105 Ohio App.3d 567, 571, 664 N.E.2d
959 (4th Dist.1995). “The plain error doctrine permits correction of judicial proceedings
when error is clearly apparent on the face of the record and is prejudicial to the
appellant.” Id.
{¶18} The underlying purpose of Crim.R. 11(C) is to convey certain information to
a defendant so that he or she can make a voluntary and intelligent decision regarding
whether to plead guilty. State v. Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115
(1981). “The standard for reviewing whether the trial court accepted a plea in compliance with Crim.R. 11(C) is a de novo standard of review.” State v. Cardwell, 8th Dist.
Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26, citing State v. Stewart, 51 Ohio St.2d 86,
364 N.E.2d 1163 (1977). “It requires an appellate court to review the totality of the
circumstances and determine whether the plea hearing was in compliance with Crim.R.
11(C).” Id. Crim.R. 11(C)(2)(a), which outlines the requirements for a plea, provides
that a court “shall not accept a plea of guilty” without first determining that “the
defendant is making the plea voluntarily, with understanding of the nature of the charges
and of the maximum penalty involved * * * .”
{¶19} Ohio courts have determined that although literal compliance with Crim.R.
11(C)(2)(a) is preferred, it is not an absolute requirement. Caplinger at 572. Rather,
the trial court’s actions will be reviewed for “substantial compliance” with Crim.R.
11(C)(2)(a). Id., citing State v. Johnson, 40 Ohio St.3d 130, 133, 532 N.E.2d 1295
(1988).
Substantial compliance means that under the totality of the circumstances,
the defendant subjectively understands the implications of his plea and the
rights he is waiving. In other words, if it appears from the record that the
defendant appreciated the effect of his plea and his waiver of rights in spite
of the trial court’s error, there is still substantial compliance. Furthermore,
an appellant who challenges his plea on the basis that it was not knowingly
and voluntarily made must show a prejudicial effect. The test is whether
the plea would have otherwise been made. (Citations omitted.) Caplinger at id. Thus, Richmond must show prejudice — he must
show that his plea would not have otherwise been made — before his plea will be vacated
for a trial court’s error involving nonconstitutional Crim.R. 11(C) violation. See State v.
Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462.
{¶20} In Caplinger, the trial court misstated the maximum sentence to the
appellant by five years; the court told the appellant the maximum sentence was five years
when the maximum sentence for the crime he had pleaded guilty to was in fact ten years
in prison. The court then sentenced the appellant to an indefinite term of five to ten
years in prison. The Fourth District found that the trial court’s misstatement could have
affected the appellant’s decision to plead guilty and concluded that the trial court failed to
substantially comply with Crim.R.11(C)(2)(a). Caplinger, 105 Ohio App.3d 567 at 573,
664 N.E.2d 959.
{¶21} In State v. Davis, 8th Dist. Cuyahoga No. 101338, 2015-Ohio-178, the trial
court erroneously informed the defendant that the maximum penalty he could receive for
his fourth-degree felonies was up to 12 months, whereas the maximum penalty was 18
months. The trial court sentenced the defendant to 12 months in prison. On appeal, the
defendant argued that he did not enter his guilty pleas knowingly, intelligently, and
voluntarily because the trial court misinformed him of the maximum possible prison term
he could receive at sentencing. Id. at ¶ 5. This court disagreed, finding that the
defendant failed to show he had been prejudiced because the court sentenced him to a
total of 12 months in prison: “It is not as if the court informed him he could receive up to 12 months and then sentenced him to 18 months. If that were the case, the prejudice
would be manifest.” Id. at ¶ 10.
{¶22} Similar to Davis, in this case, although the trial court misstated the
maximum penalty by one year, the trial court sentenced Richmond to a total of ten years
in prison. If the trial court had sentenced Richmond to 11 years in prison without
informing him of the possibility of that sentence, then the prejudice, as in Caplinger,
would be obvious and “manifest.” Richmond has failed to show how misinforming him
that the statutorily prescribed maximum prison term was 11 years, instead of ten years, on
one rape conviction, when the court sentenced him to only six years in prison, would have
changed his decision to enter a guilty plea.
{¶23} Therefore, the second assignment of error is overruled.
Court Erred in Imposing Consecutive Sentences
{¶24} In the third assignment of error, Richmond argues that the trial court erred
when it ordered the sentence in this case to be served consecutive to the sentence he is
serving in another case without making the requisite statutory findings. He also argues
that the court should have ordered a presentence report. The state concedes that the trial
court did not make the required findings to impose consecutive sentences.
{¶25} R.C. 2929.41(A) provides that all sentences of imprisonment are
presumptively concurrent. It states:
Except as provided in division (B) of this section, division (C) of section
2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison term, jail term, or sentence of imprisonment shall be served
concurrently with any other prison term, jail term, or sentence of
imprisonment imposed by a court of this state, another state, or the United
States. * * *.
{¶26} Pursuant to R.C. 2929.41(A), therefore, the trial court has the duty to make
the statutory findings when imposing consecutive sentences, even when one of the terms
had already been imposed in a separate proceeding in an unrelated case. Here, the trial
court failed to make the findings required by the statute before imposing consecutive
sentences.
{¶27} Therefore, we reverse the trial court’s imposition of consecutive terms of
imprisonment and remand the case to the trial court to consider whether consecutive
sentences are appropriate and, if so, to enter the proper findings on the record. See State
v. Howard, 8th Dist. Cuyahoga No. 100094, 2014-Ohio-2176, and State v. LaSalla, 8th
Dist. Cuyahoga No. 99424, 2013-Ohio-4596 (this court found that trial court failed to
make requisite statutory findings before imposing sentence consecutive to a sentence
already imposed).
{¶28} As for Richmond’s argument that the trial court should have ordered a
presentence investigation report, we note that the trial court informed the parties that it
planned to proceed straight to sentencing after Richmond pleaded guilty and Richmond
did not object; therefore, he has waived all but plain error. We find no plain error in the
trial court’s decision not to order a presentence investigation report, especially given that Richmond was facing mandatory prison time in the instant case and was currently in
prison on another case in which he had been sentenced to 28 years in prison and classified
as a Tier III sex offender. Richmond’s attorney could have clearly decided that a
presentence investigation report would not have been beneficial to his client.
{¶29} The third assignment of error is sustained in part and overruled in part.
Jail-Time Credit
{¶30} In the fourth assignment of error, Richmond argues that the trial court did
not give him credit for the time he had already spent in jail.
{¶31} Under R.C. 2929.19(B)(2)(g)(i), if the trial court determines at the
sentencing hearing that a prison term is necessary or required, it is the duty of the trial
court, at the time of sentencing, to
[d]etermine, notify the offender of, and include in the sentencing entry the
number of days that the offender has been confined for any reason arising
out of the offense for which the offender is being sentenced and by which
the department of rehabilitation and correction must reduce the stated prison
term under section 2967.191 of the Revised Code. * * *
R.C. 2929.19(B)(2)(g)(iii) further provides, in relevant part:
The sentencing court retains continuing jurisdiction to correct any error not previously raised at sentencing in making a determination under [R.C. 2929.19(B)(2)(g)(i)]. The offender may, at any time after sentencing, file a motion in the sentencing court to correct any error made in making a determination under [R.C. 2929.19(B)(2)(g)(i)], and the court may in its discretion grant or deny that motion. If the court changes the number of days in its determination or redetermination, the court shall cause the entry granting that change to be delivered to the department of rehabilitation and correction without delay. * * *
{¶32} The transcript shows that counsel motioned for jail-time credit and the trial
court granted the motion; counsel and the court discussed the matter at length trying to
determine which case to apply the credit to. However, the trial court failed to place any
computation of the jail-time credit in its sentencing entry.
{¶33} Thus, the case is remanded for the trial court to compute the correct days of
jail-time credit and to issue a nunc pro tunc sentencing entry showing Richmond’s
jail-time credit.
{¶34} The fourth assignment of error is sustained.
Motion to Dismiss — Preindictment Delay
{¶35} In the fifth assignment of error, Richmond argues that he was denied due
process because the trial court failed to rule on his motion to dismiss. We disagree.
Motions not ruled on when a trial court enters final judgment are considered denied.
State v. Duncan, 8th Dist. Cuyahoga No. 97208, 2012-Ohio-3683, ¶ 4. Therefore, the
trial court in fact denied Richmond’s motion to dismiss.
{¶36} Richmond claims that he was subject to an unjustified preindictment delay.
The Ohio Supreme Court recently reaffirmed that preindictment delay violates due
process only when it is unjustifiable and causes actual prejudice. State v. Jones, 148
Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 12. The burden is on the defendant
to present evidence of actual prejudice; once a defendant does so, the burden shifts to the
state to produce evidence of a justifiable reason for the delay. Id. at ¶ 13, citing State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998).
{¶37} In his motion to dismiss, Richmond argued that he suffered actual prejudice
because there was unavailable evidence; the state could not question witnesses or
examine crime scenes as they were in 1995 and 1996; and important witnesses were
unavailable, unidentifiable, or unable to recall events. In Jones at ¶ 20-21, the Ohio
Supreme Court explained:
A determination of actual prejudice involves “‘a delicate judgment”’ and a case-by-case consideration of the particular circumstances. A court must “consider the evidence as it exists when the indictment is filed and the prejudice the defendant will suffer at trial due to the delay.” This court has suggested that speculative prejudice does not satisfy the defendant’s burden. The “possibility that memories will fade, witnesses will become inaccessible, or evidence will be lost is not sufficient to establish actual prejudice.” Those are “the real possibilit[ies] of prejudice inherent in any extended delay,” and statutes of limitations sufficiently protect against them. That does not mean, however, that demonstrably faded memories and actually unavailable witnesses or lost evidence cannot satisfy the actual-prejudice requirement.
(Citations omitted.)
{¶38} In this case, Richmond’s claim of prejudice is speculative at best. He has
failed to identify what evidence or which witnesses are missing or unavailable with any
specificity. Just the possibility of faded memories, inaccessible witnesses, and lost
evidence is insufficient to demonstrate actual prejudice. Jones at ¶ 27.
{¶39} Richmond argues that the state had no justification for its delay in
prosecuting him, especially when the state knew he was the alleged assailant in the case
where D.R., a former girlfriend, was the named victim. While that may very well be the
case, we do not reach this argument because Richmond has not first met his burden by showing actual prejudice. Thus, the burden did not shift to the state to justify its delay in
prosecuting Richmond.
{¶40} In light of the above, the fifth assignment of error is overruled.
{¶41} Conviction affirmed; but we reverse the trial court’s imposition of
consecutive terms of imprisonment and remand the case to the trial court (1) to consider
whether consecutive sentences are appropriate and, if so, to enter the proper findings on
the record and (2) for the trial court to compute the correct days of jail-time credit and to
issue a nunc pro tunc sentencing entry showing Richmond’s jail-time credit.
It is ordered that appellant and appellee share the 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
PATRICIA ANN BLACKMON, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR