[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
