[Cite as State v. Hudson, 2011-Ohio-6272.]




               Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 96435



                                       STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     MARLON HUDSON

                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                     Case Nos. CR-533087, CR-537809, and CR-537810

       BEFORE: Stewart, P.J., Jones, J., and E. Gallagher, J.

    RELEASED AND JOURNALIZED: December 8, 2011
ATTORNEY FOR APPELLANT

R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
1370 Ontario Street
Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Robert Botnick
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113




MELODY J. STEWART, P.J.:

       {¶ 1} This appeal is a companion case arising out of the same events as

contained in State v. Demario Hudson, Cuyahoga App. No. 95892.

       {¶ 2} Defendant-appellant Marlon Hudson appeals from his convictions

and sentencing for six counts of aggravated robbery and two counts of

aggravated burglary, all with firearm specifications. He complains that (1)
his pleas were not made knowingly, intelligently, or voluntarily; (2) he was

not permitted to obtain his choice of counsel or told of the ramifications of

joint representation; (3) he was denied effective assistance of counsel; (4) the

trial court’s denial and/or failure to hold a hearing concerning a psychological

examination was an abuse of discretion; and (5) his term of incarceration was

not proportionate to those of similarly situated offenders. For the following

reasons, we affirm the judgment of the trial court.

      {¶ 3} Hudson was charged in three separate indictments with multiple

counts of aggravated robbery, aggravated burglary, and kidnaping, all with

firearm specifications, along with four counts of gross sexual imposition, and

single counts of theft, arson, and possessing criminal tools.           Hudson

withdrew his not guilty plea on the day of trial and entered guilty pleas to

amended indictments. The court sentenced him to 32 years of incarceration.

      {¶ 4} In his first assignment of error, Hudson argues that his guilty

pleas were   not knowingly, voluntarily, or intelligently made because the

court did not comply with Crim.R. 11 at the plea hearing. He claims that

prior to his guilty pleas, the court did not engage in an appropriate discussion

to adequately explain the nature of his plea with respect to his belief that he

would receive a maximum sentence of 12 years.

      {¶ 5} The standard of review for whether the trial court accepted a plea

in compliance with Crim.R. 11(C) is de novo. State v. Stewart (1977), 51 Ohio
St.2d 86, 364 N.E.2d 1163. In resolving whether a criminal defendant

knowingly, intelligently, and voluntarily entered a plea, we review the record

to determine whether the trial court adequately guarded the constitutional

and non-constitutional rights set out in Crim.R. 11(C). State v. Nero (1990),

56 Ohio St.3d 106, 564 N.E.2d 474. Our review differs, however, depending

on the breach of rights appellant raises on appeal. A trial court must strictly

comply with informing appellant of his constitutional rights outlined in

Crim.R. 11(C)(2)(c).   Alternatively, if appellant alleges a violation of a

non-constitutional right, set forth in Crim.R. 11(C)(2)(a) and (b), we look for

substantial   compliance.     State   v.   Asberry,    173   Ohio   App.3d   443,

2007-Ohio-5436, 878 N.E.2d 1082.

      {¶ 6} Crim.R. 11 (C) states in pertinent part:

      {¶ 7} “(2) In felony cases the court may refuse to accept a plea of guilty

or a plea of no contest, and shall not accept a plea of guilty or no contest

without first addressing the defendant personally and doing all of the

following:

      {¶ 8} “(a) Determining that the defendant is making the plea

voluntarily, with understanding of the nature of the charges and of the

maximum penalty involved, and, if applicable, that the defendant is not

eligible for probation or for the imposition of community control sanctions at

the sentencing hearing.
      {¶ 9} “(b) Informing the defendant of and determining that the

defendant understands the effect of the plea of guilty or no contest, and that

the court, upon acceptance of the plea, may proceed with judgment and

sentence.

      {¶ 10} “(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial,

to confront witnesses against him or her, to have compulsory process for

obtaining witnesses in the defendant’s favor, and to require the state to prove

the defendant’s guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself or herself.”

      {¶ 11} Hudson initially entered a plea of not guilty, but decided to

change his plea to guilty prior to trial.   Attorney Valentine Schurowliew,

co-counsel for Hudson, revealed to the court that he had experienced

problems communicating with his client and that this communication

problem had impeded his efforts to properly represent Hudson. The trial

court inquired further and determined that attorney Stanley Josselson was

retained counsel for both Hudson and his brother, co-defendant Demario

Hudson. Schurowliew was employed by Josselson and was present to assist.

 Josselson clarified to the court that he had engaged both defendants in

“quite a bit of discussion” concerning their cases. He then told the court that

Hudson was prepared to enter his plea.
     {¶ 12} The state provided the court with the terms of the amended

indictments contained in the plea agreement. The trial court then engaged

both defendants in a plea colloquy. Hudson stated that it was his desire that

Josselson continue to represent him and that it was his wish to take the plea

agreement.   The court asked Hudson if he understood that he would be

pleading guilty to eight felonies of the first degree, and that each was

“possibly punishable by [sic] from 3 to 10 years in yearly increments,” and he

responded “yes.”   The court explained to Hudson that he would have “an

underlying basic sentence of 9 years” due to firearm specifications, and that

“the 9 year sentence would be placed before any sentence on the felonies of

the first degree.” Hudson stated that he understood.

     {¶ 13} The court inquired of Hudson if there were any promises or

threats made to induce him to change his plea, and he responded that “[t]hey

said that it would be 12 years.” The court stated at length that it did not

discuss sentencing with either side and does not do so as a matter of policy.

The court questioned both the prosecutor and defense counsel with regard to

discussions on length of sentence.    Both confirmed that no conversations

were held with the court concerning sentencing. Josselson added, however,

that the prosecutor had agreed not to argue against a minimum 12 year

sentence.
       {¶ 14} The court asked Hudson how he wished to plead, and he stated

“not guilty.” With this, the court stated its intention to proceed immediately

to trial.     Hudson thereafter changed his plea to guilty.    When the court

asked him if he was “in fact, guilty,” Hudson replied “yes.”

       {¶ 15} In   State v. Weakley, 8th Dist. No. 93282, 2010-Ohio-2464, the

defendant contended that his plea hearing was plagued with deficiencies.

This court reviewed the record and found that the trial court addressed the

defendant personally to explain the nature of the charges, the consequences

of his plea, and the possible, as well as mandatory sentence he faced. Id. at

¶15.    The trial court asked the defendant if he was satisfied with his

representation and he answered in the affirmative. Id. at ¶16. When the

trial court asked the defendant if any promises were made in exchange for his

plea, the defendant stated that he was promised that his sentence would not

exceed 11 years. With this, the “judge explained that the court had not made

any promises regarding sentencing and that only the court can determine the

sentence to be imposed, [and also] advised that before [the defendant] pleaded

guilty he needed to understand that he could be sentenced to anywhere from

the minimum to the maximum.” Id. We found that the “record reflect[ed]

that appellant’s pleas were knowingly, intelligently, and voluntarily made.”

Id. at ¶18.
      {¶ 16} Viewing the totality of the circumstances in the case at bar, it is

clear that Hudson knowingly, intelligently, and voluntarily entered his plea

of guilt. The colloquy reveals that a meaningful dialogue took place between

Hudson and the trial court. The court determined that Josselson was the

attorney representing Hudson and had held lengthy discussions with him

about his case. The court addressed Hudson and informed him of the rights

that he would be waiving. Charges and potential penalties were discussed.

The court explained the collateral consequences of the plea, including

financial sanctions and postrelease control. The court explicitly clarified to

Hudson that no promises concerning sentencing would be enforced. Hudson

then made a complete admission of guilt on the record.

      {¶ 17} Accordingly, Hudson’s first assignment of error is overruled.

      {¶ 18} In his second assignment of error, Hudson complains that the

trial court erred in not allowing him to obtain counsel of his choice and did

not inform him of the ramifications of joint representation. Hudson contends

that the court’s admonishing of attorney Schurowliew at the plea hearing

forced Schurowliew to leave and deprived him of a choice regarding

representation.

      {¶ 19} “A lawyer represents conflicting interests when, on behalf of one

client, it is his duty to contend for that which duty to another client requires

him to oppose.” State v. Manross (1988), 40 Ohio St.3d 180, 182, 532 N.E.2d
735, citing Columbus Bar Assn. v. Grelle (1968), 14 Ohio St.2d 208, 237

N.E.2d 298.    “The mere representation by one lawyer of two defendants

charged with the same offenses does not, of itself, constitute a conflict of

interest; whether a conflict exists must be determined by the facts of each

case. Columbus Bar Assn. v. Ross, 107 Ohio St.3d 354, 2006-Ohio-5, 839

N.E.2d 918, ¶ 26.

      {¶ 20} “Unless the trial court knows or reasonably should know that a

particular conflict exists or unless the defendant objects to multiple

representation, the court need not initiate an inquiry into the propriety of

such representation.”    Manross, 40 Ohio St.3d at 181, citing Cuyler v.

Sullivan (1980), 446 U.S. 335, 347, 100 S.Ct. 1708, 64 L.Ed.2d 333. “Absent

special circumstances, *** trial courts may assume either that multiple

representation entails no conflict or that the lawyer and his clients knowingly

accept such risk of conflict as may exist.” Cuyler, 446 U.S. at 346.

      {¶ 21} Hudson argues that it was unclear whether Josselson or

Schurowliew represented him.        However, the record demonstrates that

Hudson’s mother retained Josselson to represent him and his brother, and

that Schurowliew was Josselson’s employee. Hudson made no objections to

Josselson’s representation when specifically asked by the trial court. The

court asked Hudson if it was his desire for Josselson to continue to represent

him, and he replied “yes.” The trial court was not aware of any conflict of
interest involving joint representation.   In fact, an “attorney representing

two defendants in a criminal matter is in the best position professionally and

ethically to determine when a conflict of interest exists.”      Holloway v.

Arkansas (1978), 435 U.S. 475, 485, 98 S.Ct. 1173, 55 L.Ed.2d 426. Neither

Josselson nor Schurowliew raised the issue of a conflict in this instance.

Hudson’s second assignment of error is overruled.

      {¶ 22} In his third assigned error, Hudson claims that he was denied

effective assistance of counsel. He argues that counsel was deficient because

Schurowliew did not hold meaningful discussions with him concerning his

case, and Hudson believes that his representation was sub par because

Schurowliew and Josselson failed to request that his case be placed on the

mental health docket to facilitate a psychological evaluation.

      {¶ 23} The defendant carries the burden of proving that counsel was

ineffective. State v. Smith (1985), 17 Ohio St.3d 98, 100, 477 N.E.2d 1128.

To substantiate a claim of ineffective assistance of counsel, Hudson must

demonstrate that defense counsel’s performance was seriously flawed and

deficient, and that the results of the trial would have been different had

proper representation been afforded. State v. Foster, 8th Dist. No. 93391,

2010-Ohio-3186, ¶22, citing Strickland v. Washington (1984), 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674.
      {¶ 24} However, “a claim for ineffective assistance of counsel is waived

by a guilty plea, unless the ineffective assistance caused the guilty plea to be

involuntary.” State v. Hicks, 8th Dist. No. 90804, 2008-Ohio-6284, ¶24. To

prove a claim of ineffective assistance of counsel after having pleaded guilty,

a defendant “must demonstrate that there is a reasonable probability that,

but for counsel’s errors, [he] would not have pled guilty and would have

insisted on going to trial.”      State v. Szakacs, 8th Dist. No. 92230,

2009-Ohio-5480, ¶15, citing Hill v. Lockhart (1985), 474 U.S. 52, 58-59, 106

S.Ct. 366, 88 L.Ed.2d 203.

      {¶ 25} Hudson does not argue that counsel’s alleged ineffectiveness

caused him to enter a guilty plea.      And as earlier noted, when Hudson

pleaded not guilty for the second time, the court was ready to proceed with

trial. This assignment of error is overruled.

      {¶ 26} In his fourth assigned error, Hudson argues that if he did in fact

request a psychological examination, then it was an abuse of discretion for

the trial court to deny his request or fail to hold a hearing on the matter. He

claims that the issue of his competency was raised, but that the court

nevertheless proceeded directly to a plea hearing and sentencing.

      {¶ 27} A defendant is presumed competent to stand trial and carries the

burden of establishing incompetence. State v. Hunter, 8th Dist. No. 89456,

2008-Ohio-794, ¶15-16. The prosecution, the defense, or the court may raise
the issue of a defendant’s competence to stand trial in a criminal action.

R.C. 2945.37(B). “The failure to hold a mandatory competency hearing is

harmless error where the record fails to reveal sufficient indicia of

incompetency.”     State v. Bock (1986), 28 Ohio St.3d 108, 110, 502 N.E.2d

1016.

        {¶ 28} “A trial court, in making a determination of whether to hold a sua

sponte hearing concerning the accused's competence to stand trial, should

consider the following: (1) doubts expressed by counsel as to the defendant’s

competence; (2) evidence of irrational behavior; (3) the defendant’s demeanor

at trial; and (4) prior medical opinion relating to competence to stand trial.”

State v. Rubenstein (1987), 40 Ohio App.3d 57, 531 N.E.2d 732, paragraph

two of the syllabus.

        {¶ 29} In State v. Ortiz, 9th Dist. No. 06CA009011, 2007-Ohio-4350, ¶ 3,

counsel filed a motion to withdraw, alleging that “the relationship between

[c]ounsel and [appellant] has broken down and is beyond repair, [and in the

same motion] requested a psychiatric evaluation of appellant.”               The

appellant complained that the trial court erred in denying the motion. The

assigned error was sustained because “[t]he trial court refused to order a

psychological evaluation or hear any other evidence to determine whether

appellant was competent to stand trial [and also] failed to engage in any

colloquy with appellant to determine whether he understood the nature of the
proceedings against him or whether appellant had sufficient present ability to

consult with his counsel.” Id. at ¶12.

      {¶ 30} Hudson disrupted the proceedings and sheriff’s deputies were

called in to quell the disturbance. Schurowliew told the court that he felt

that Hudson “needs to have some sort of treatment because I do not think

that he is a rational person [and that] *** I don’t think he’s able to assist in

his defense.” The court then asked numerous questions of Schurowliew in an

attempt to determine if his difficulty in communicating with Hudson was

attributable to a “mental health issue.”       Finally, Hudson affirmatively

responded when the court asked him if he was “able to under [sic] this

hearing as it’s occurring [and if he was] satisfied with the representation that

[he had] received from [his] lawyer.”

      {¶ 31} In State v. Berry (1995),72 Ohio St.3d 354, 362, 650 N.E.2d 433,

the court stated that the fact that a defendant was removed from the

courtroom for disruptive behavior did not indicate that he was incompetent to

stand trial and thus did not warrant a competency hearing since the incident

was relatively minor and happened only once.           Although Schurowliew

expressed doubts concerning Hudson’s rationality and his ability to assist

with his defense, he never moved the court for a psychological evaluation.

Upon further questioning from the court, Schurowliew conceded that his

problem with Hudson stemmed from communication difficulties.
      {¶ 32} The record does not contain any evidence that casts doubt on

Hudson’s ability to understand the nature of the proceedings.           Josselson

assured the court that meaningful communications with Hudson had

occurred prior to the hearing.        We find that Hudson had a rational

understanding of the proceedings against him and understood the nature of

the charges. His fourth assignment of error is, therefore, overruled.

      {¶ 33} In his final assignment of error, Hudson argues that the 31 year

term of incarceration is not proportionate to similarly situated offenders. In

support of his argument, he points out that he has no felony record, and also

notes that another co-defendant, Montana Hudson, pled guilty to similar

charges and received only four years incarceration after his case was

transferred to the mental health docket.

      {¶ 34} The standard of review for sentencing requires a court to find

error by clear and convincing evidence that a sentence is not supported by the

record or is contrary to law.         State v. Dovak, 8th Dist. No. 90335,

2008-Ohio-4103, ¶5.     “Clear and convincing evidence is more than a mere

preponderance of the evidence; it is that evidence which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” State v. Patterson, 8th Dist. No. 84803, 2005-Ohio-2003, ¶4.

      {¶ 35} Trial courts are not “required to make findings or give their

reasons for maximum, consecutive, or more than the minimum sentences.”
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Instead,

“the trial court must carefully consider the statutes that apply to every felony

case, including R.C. 2929.11, which specifies the purposes of sentencing, and

R.C. 2929.12, which provides guidance in considering factors relating to the

seriousness of the offense and recidivism of an offender and statutes that are

specific to the case itself.”        Dovak at ¶9.         And, “[i]n order to support a

contention that his or her sentence is disproportionate to sentences imposed

upon other offenders, a defendant must raise this issue before the trial court

and present some evidence, however minimal, in order to provide a starting

point for analysis and to preserve the issue for appeal.” State v. Sistrunk,

8th Dist. No. 91470, 2009-Ohio-1689, ¶ 14, citing State v. Breeden, 8th Dist.

No. 84663, 2005-Ohio-510, ¶ 80.

      {¶ 36} The judgment entry of the court unequivocally states that “the

court considered all required factors of the law.” Since Hudson failed to raise

his claim of disproportionate sentencing with the trial court, and did not

provide evidence to demonstrate this alleged error, he has failed to preserve

the issue for appeal. Hudson’s final assignment of error is overruled.

                                                                         Judgment affirmed.

      It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas 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.




MELODY J. STEWART, PRESIDING JUDGE

LARRY A. JONES, J., and
EILEEN A. GALLAGHER, J., CONCUR
