[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
