State v. McDargh

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State v. McDargh

State: Ohio

Court: Ohio Southern District Court

Docket No: 2001-Ohio-1703

Case Date: 11/02/2001

Plaintiff: State

Defendant: McDargh

Preview:[Cite as State v. McDargh, 2001-Ohio-1703]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO STATE OF OHIO Plaintiff-Appellee vs. DARRELL MCDARGH Defendant-Appellant : : : : : ........... OPINION Rendered on the 2nd day of November , 2001. C.A. Case No. 2000-CA-94 T.C. Case No. 99-CR-635

........... STEPHEN A SCHUMAKER, Prosecuting Attorney, Atty. Reg. #0014643, By: ANDREW P. PICKERING, Assistant Prosecuting Attorney, Atty. Reg. #0068770, 50 East Columbia Street, 4th Floor, Springfield, Ohio 45502 Attorneys for Plaintiff-Appellee JAMES D. MARSHALL, Atty. Reg. #0012648, 4 West Main Street, 2nd Floor, Springfield, Ohio 45502 Attorney for Defendant-Appellant ............. BROGAN, J. Darrell McDargh appeals from his conviction in the Clark County Common Pleas Court of complicity to murder, complicity to aggravated robbery, and tampering with evidence.

2 McDargh was indicted for these offenses on November 29, 1999. On May 9, 2000, prior to the beginning of a suppression hearing, McDargh orally requested that his court appointed counsel be removed. The trial court overruled the motion, during the suppression hearing, and then overruled the suppression motion after two days of testimony. On May 22, 2000, McDargh retained private counsel and on October 23, 2000, he entered no contest pleas to the charges in the indictment. After the court made guilt findings, McDargh was sentenced to aggregate prison terms of 20 years to life imprisonment. McDargh admitted to police that he and Darrell Cochrane planned the robbery of the victim, Antonio Garcia. McDargh told police that Cochrane hit Garcia over the head with a board and then they stole cocaine and money from Garcia. McDargh told police he and Cochrane tied up Garcia and put him in McDargh's car and drove him to a location where he was not discovered for several hours. McDargh admitted to instructing Cochrane to clean up the crime scene to avoid detection of the crime. McDargh denied that he intended to kill Garcia. In his first assignment, McDargh contends the trial court erred in denying his motion to discharge his court appointed counsel which he made before the suppression hearing. In his written motion, McDargh contended that his court appointed counsel lied to him several times, that he was transported to a suppression hearing on April 28, 2000 for which he was never made aware, and that he thought his lawyer had him confused with someone else because his lawyer wanted to suppress

3 statements that he allegedly made to his sister when his sister was illegally wired by the government. On May 9, 2000, the trial court overruled the defendant's motion to discharge his attorney and the court made the following comments: THE COURT: All right. Thank you, Mr. Schumaker. Both counsel agree that they can finish the proceeding on Thursday, May the 11th; and I'll grant that request to reassign till May 11 for the remaining evidence to be presented. Do you understand that, Mr. McDargh, your attorney's asking that this case be continued until Thursday on the suppression hearing? THE DEFENDANT: Yeah. THE COURT: In regard to that motion, you mentioned that your attorney lied to you. He didn't lie to you. There was a scheduled hearing, and that was reassigned; and that's why the Court overruled that motion to dismiss your attorney. I find he is a competent attorney, and you're well represented. All right. If there's nothing further, we'll adjourn today, reconvene 9 a.m. May 11, 2000, in this court. The appellant contends the trial court committed prejudicial error in not conducting an "inquiry" into the reasons why the defendant wished to discharge his attorney. In State v. Deal (1969), 17 Ohio St.2d 17, the Ohio Supreme Court held that it was error for the trial court not to make an inquiry into a complaint lodged by a defendant during his trial that his trial counsel had failed to seasonably file a notice of alibi and subpoena those witnesses in support of the alibi defense. The court

4 held the trial court could overrule the motion and proceed with the trial if the complaint was unsubstantiated or was unreasonable. In this case, the defendant never informed the trial court in what manner his attorneys "lied" to him. The court noted that the April 28, 2000 hearing had been rescheduled, and the court found that the defendant was being well represented by his court appointed counsel. During the suppression hearing, Sergeant Barry Eggers of the Springfield Police Department told the prosecutor the defendant's sister, Rebecca McDargh, was a "cooperating witness" who had a conversation with Darrell Cochrane in the Clark County Jail which was recorded by law enforcement officials. Therefore it is clear that the defendant's counsel did not have the defendant "confused" with someone else. The trial court conducted an adequate Deal inquiry and we see no abuse of discretion in the trial court's refusal to remove the defendant's court appointed counsel. The first assignment of error is overruled. In his second assignment, McDargh argues that his pleas should be set aside because the trial court failed to determine whether he understood that he was not eligible for probation or for the imposition of community control sanctions by pleading no contest to complicity to murder, aggravated robbery, and tampering with evidence. The State argues that this assignment should be overruled because the trial court substantially complied with Crim.R. 11(C)(2) and the appellant has not demonstrated he would not have otherwise entered his no contest pleas.

5 Prior to accepting a guilty or no contest plea, a trial court is to inform the defendant of the matters contained in Crim.R. 11(C)(2). These matters include "[d]etermining that the defendant *** [understands] that the defendant is not eligible for probation or the imposition of community control sanctions at the sentencing hearing" and "[i]nforming the defendant of and determining that the defendant

understands *** that the court, upon acceptance of the plea, may proceed with judgment and sentence." Crim.R. (C)(2)(a) and (b). A trial court need only substantially comply with the nonconstitutional elements of Crim.R. 11(C)(2). State v. Nero (1990), 56 Ohio St.3d 106, 108.

"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." Id. A defendant must also demonstrate that he was prejudiced by a trial court's failure to adhere to Crim.R. 11(C)(2). State v. Stewart (1977), 51 Ohio St.2d 86, 93. "The test is whether the plea would have otherwise been made." State v. Nero, supra, at 108. The Court in Nero held that where the totality of

the circumstances indicates the defendant knew he was ineligible for probation and was not prejudiced by the trial court's failure to comply with Crim.R. 11(C)(2)(a) substantial compliance with Crim.R. 11 is sufficient. 56 Ohio St.3d at 108-109. The record demonstrates that the defendant previously served an eighteen month prison term for a felony conviction, and the defendant was entering no contest pleas to very serious charges. The record reflects that neither the

defendant nor his counsel mentioned the possibility that the defendant might receive probation or a community control sanction. In fact the only thing the

6 defense counsel requested was that the trial court not impose fines due to the defendant's indigence. After the court imposed the sentences upon the defendant, neither he nor counsel indicated any surprise nor did either suggest that they thought the trial court would impose a community sanction. Under the totality of circumstances in this case, we are satisfied that McDargh understood that he was ineligible for probation despite the trial court's failure to comply with Crim.R. 11(C)(2). We are also satisfied that he would enter his pleas even if the trial court had complied with the criminal rule. The second assignment of error is overruled. In his third assignment, McDargh argues the trial court failed to comply with Crim.R. 32 by not asking him if he wished to make a statement to the court before the court imposed the sentences upon him. The State argues that the record reflects that the trial court did comply with Crim.R. 32. The record reflects that the trial court sentenced the defendant before granting the defendant his right of allocution and then asked the defendant if he wished to make a statement. [THE COURT]: Did you want to make a statement in regard to disposition, Mr. Rion? MR. RION: The only thing I'd like to say is that Darrell's not a man of great means. I'd ask the Court to find him indigent in relation to the fine, and it is my great belief that at no time did Darrell McDargh possess a weapon or any

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