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State v. Pendergrass

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 11, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MICHAEL PENDERGRASS DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-598477-A

          ATTORNEY FOR APPELLANT Joseph V. Pagano.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor By: Edward R. Fadel Assistant County Prosecutor.

          BEFORE: McCormack, P.J., E.T. Gallagher, J., and Stewart, J.

          JOURNAL ENTRY AND OPINION

          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 ...


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