State v. Hudson ( 2011 )

[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