[Cite as State v. Pendergrass, 2012-Ohio-5186.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98486




                                      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-549687

        BEFORE: Rocco, J., Stewart, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: November 8, 2012
                                 -i-




ATTORNEY FOR APPELLANT

Carol Jackson
3900 Cullen Drive
Cleveland, OH 44105

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Kristin Karkutt
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, OH 44113
KENNETH A. ROCCO, J.:

       {¶1} In this appeal assigned to the accelerated calendar pursuant to App.R. 11.1

and Loc.App.R. 11.1, defendant-appellant Michael Pendergrass appeals from the sentence

imposed by the trial court after he entered guilty pleas to charges of rape and abduction.

       {¶2} The purpose of an accelerated appeal is to allow this court to render a brief

and conclusory opinion. App.R. 11.1(E).

       {¶3} Pendergrass presents one assignment of error. He argues that a sentence of

ten years for his convictions was both contrary to law and an abuse of discretion. This

court disagrees.

       {¶4} Pendergrass was indicted in this case in May 2011 on four counts for an

incident that occurred in July 2002.        He was charged with rape, two counts of

kidnapping, and felonious assault. The first count carried a sexually violent predator

specification (“SVP”). Both kidnapping counts contained SVPs and sexual motivation

specifications.

       {¶5} Just before trial commenced on March 21, 2012, Pendergrass accepted the

state’s plea offer. As outlined by the prosecutor, in exchange for Pendergrass’s guilty

pleas, the state would delete the SVP from the rape charge, amend a charge of kidnapping

to one of abduction without any specifications, dismiss the other two counts, and agree

that the rape and abduction counts merged for sentencing purposes.
              {¶6} The trial court conducted a careful and thorough colloquy before it accepted

       Pendergrass’s guilty pleas. Pendergrass understood the maximum penalty for the rape

       conviction was a prison term of three to ten years.

              {¶7} The trial court obtained a presentence report and a psychiatric report prior to

       conducting the sentencing hearing. After listening to statements from the prosecutor,

       defense counsel, and Pendergrass, the trial court reflected on the purposes and principles

       of sentencing, related Pendergrass’s criminal history dating from 1996, and noted that

       Pendergrass currently had “three active warrants” from area municipal courts. The trial

       court commented that “every time [Pendergrass] has been placed on probation by a court,

       be it federal or state, he has violated that probation and has been sentenced to prison as a

       result.”

              {¶8} The court further noted that the victim had suffered serious physical and

       psychological harm, Pendergrass had committed the offenses while on community control

       for other convictions, and Pendergrass also indicated in the presentence report that he had

       no genuine remorse for committing the offenses. The trial court stated,

                       This is a situation where * * * this victim has been waiting for justice
               for almost 10 years. And thanks to modern technology that justice has
               finally come. It would not [sic] probably never have come to light but for
               the DNA test and the CODIS tests that the government runs these days that
               are opening and closing a lot of cases that would otherwise have gone
               forever as unsolved crimes, be it rapes or homicides or kidnappings.
               And so in this case the defendant was able to stay out for ten years while the victim
       in this matter suffered * * * .

       {¶9} The trial court noted that the state had elected to proceed on the rape charge, and imposed a

sentence of ten years.
      {¶10} Pendergrass argues in his sole assignment of error that the sentence should be reversed

because the trial court considered improper matters rather than focusing on the relevant statutory

factors. Based upon the foregoing facts, this court disagrees.

      {¶11} Citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, as the

touchstone for appellate analysis, this court faced a similar argument in State v. Balta, 8th Dist. No.

97755, 2012-Ohio-3462. Pendergrass’s “argument is expressly contradicted by the record.” Id. at ¶ 9.

 The term imposed on Pendergrass was within the statutory limits applicable at the time the offenses

were committed, and the trial court provided a cogent and thoughtful explanation for choosing the

maximum term. Thus, Pendergrass’s sentence is neither contrary to law nor an abuse of discretion.

Id.

      {¶12} Pendergrass’s assignment of error, accordingly, is overruled.

      {¶13} His sentence is 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 convictions 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.
___________________________________
KENNETH A. ROCCO, JUDGE

MELODY J. STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
