State v. Pendergrass

[Cite as State v. Pendergrass, 2012-Ohio-5186.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98486
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-549687
BEFORE: Rocco, J., Stewart, P.J., and Keough, J.
RELEASED AND JOURNALIZED: November 8, 2012
-i-
ATTORNEY FOR APPELLANT
Carol Jackson
3900 Cullen Drive
Cleveland, OH 44105
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kristin Karkutt
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, OH 44113
KENNETH A. ROCCO, J.:
{¶1} In this appeal assigned to the accelerated calendar pursuant to App.R. 11.1
and Loc.App.R. 11.1, defendant-appellant Michael Pendergrass appeals from the sentence
imposed by the trial court after he entered guilty pleas to charges of rape and abduction.
{¶2} The purpose of an accelerated appeal is to allow this court to render a brief
and conclusory opinion. App.R. 11.1(E).
{¶3} Pendergrass presents one assignment of error. He argues that a sentence of
ten years for his convictions was both contrary to law and an abuse of discretion. This
court disagrees.
{¶4} Pendergrass was indicted in this case in May 2011 on four counts for an
incident that occurred in July 2002. He was charged with rape, two counts of
kidnapping, and felonious assault. The first count carried a sexually violent predator
specification (“SVP”). Both kidnapping counts contained SVPs and sexual motivation
specifications.
{¶5} Just before trial commenced on March 21, 2012, Pendergrass accepted the
state’s plea offer. As outlined by the prosecutor, in exchange for Pendergrass’s guilty
pleas, the state would delete the SVP from the rape charge, amend a charge of kidnapping
to one of abduction without any specifications, dismiss the other two counts, and agree
that the rape and abduction counts merged for sentencing purposes.
{¶6} The trial court conducted a careful and thorough colloquy before it accepted
Pendergrass’s guilty pleas. Pendergrass understood the maximum penalty for the rape
conviction was a prison term of three to ten years.
{¶7} The trial court obtained a presentence report and a psychiatric report prior to
conducting the sentencing hearing. After listening to statements from the prosecutor,
defense counsel, and Pendergrass, the trial court reflected on the purposes and principles
of sentencing, related Pendergrass’s criminal history dating from 1996, and noted that
Pendergrass currently had “three active warrants” from area municipal courts. The trial
court commented that “every time [Pendergrass] has been placed on probation by a court,
be it federal or state, he has violated that probation and has been sentenced to prison as a
result.”
{¶8} The court further noted that the victim had suffered serious physical and
psychological harm, Pendergrass had committed the offenses while on community control
for other convictions, and Pendergrass also indicated in the presentence report that he had
no genuine remorse for committing the offenses. The trial court stated,
This is a situation where * * * this victim has been waiting for justice
for almost 10 years. And thanks to modern technology that justice has
finally come. It would not [sic] probably never have come to light but for
the DNA test and the CODIS tests that the government runs these days that
are opening and closing a lot of cases that would otherwise have gone
forever as unsolved crimes, be it rapes or homicides or kidnappings.
And so in this case the defendant was able to stay out for ten years while the victim
in this matter suffered * * * .
{¶9} The trial court noted that the state had elected to proceed on the rape charge, and imposed a
sentence of ten years.
{¶10} Pendergrass argues in his sole assignment of error that the sentence should be reversed
because the trial court considered improper matters rather than focusing on the relevant statutory
factors. Based upon the foregoing facts, this court disagrees.
{¶11} Citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, as the
touchstone for appellate analysis, this court faced a similar argument in State v. Balta, 8th Dist. No.
97755, 2012-Ohio-3462. Pendergrass’s “argument is expressly contradicted by the record.” Id. at ¶ 9.
The term imposed on Pendergrass was within the statutory limits applicable at the time the offenses
were committed, and the trial court provided a cogent and thoughtful explanation for choosing the
maximum term. Thus, Pendergrass’s sentence is neither contrary to law nor an abuse of discretion.
Id.
{¶12} Pendergrass’s assignment of error, accordingly, is overruled.
{¶13} His sentence is affirmed.
It is ordered that appellee recover from 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 convictions 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.
___________________________________
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR