[Cite as State v. Hanson,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99362

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DERRICK M. HANSON DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-565761

BEFORE: Boyle, P.J., S. Gallagher, J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: September 12, 2013 ATTORNEY FOR APPELLANT

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

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor BY: Adam Chaloupka Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, P.J.:

{¶1} Defendant-appellant, Derrick Hanson, appeals his conviction and sentence.

He raises four assignments of error for our review:

1. The trial court did not comply with Crim.R. 11 and defendant’s plea was not knowingly, intelligently, and voluntarily made.

2. The defendant was denied his right to counsel.

3. Defendant was denied effective [assistance] of counsel.

4. The defendant was denied a fair sentencing hearing resulting in a violation of his due process rights.

{¶2} Finding no merit to his appeal, we affirm.

Procedural History and Factual Background

{¶3} On August 15, 2012, Hanson was indicted on five counts: one count of

aggravated burglary in violation of R.C. 2911.11(A)(1); one count of kidnapping in

violation of R.C. 2905.01(A)(3); one count of felonious assault, in violation of R.C.

2903.11(A)(1); one count of domestic violence in violation of R.C. 2919.25(A); and one

count of failure to comply with order, signal of police officer in violation of R.C.

2921.331(B). He pleaded not guilty to all charges.

{¶4} In October 2012, Hanson withdrew his former not guilty plea and pleaded

guilty to four of the five counts, including aggravated burglary, felonious assault,

domestic violence, and failure to comply. The kidnapping count was dismissed. {¶5} After the trial court accepted Hanson’s guilty plea, it immediately

proceeded to sentencing. The trial court sentenced Hanson to a total of ten years in

prison; seven years each for aggravated burglary and felonious assault, and six months for

domestic violence, all to be served concurrently to one another; and three years for failure

to comply, to be served consecutive to the seven-year term for the other counts. The

trial court further advised Hanson that he would be subject to a mandatory term of five

years of postrelease control upon his release from prison. It is from this judgment that

Hanson appeals.

Crim.R. 11

{¶6} In his first assignment of error, Hanson argues that the trial court did not

comply with Crim.R. 11.

{¶7} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle,

,

(1996).

{¶8} To ensure that a plea to a felony charge is knowingly, intelligently, and

voluntarily entered into, a trial court must follow the dictates of Crim.R. 11(C)(2). This

provision provides that the court must address defendants personally and (1) determine

that they understand the nature of the charges against them and of the maximum penalty

involved, (2) inform them of and determine that they understand the effect of a plea of guilty or no contest and that the court may proceed with judgment and sentence, and (3)

inform them of and determine that they understand the constitutional rights that they are

giving up by entering into their plea. Crim.R. 11(C)(2)(a) – (c). The United States

Supreme Court specified a defendant’s constitutional rights as (1) the Fifth Amendment

privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the

right to confront one’s accusers. Boykin v. Alabama,

,

,

(1969).

{¶9} Crim.R. 11(C)(2)(c) sets forth a defendant’s constitutional rights as follows:

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.

{¶10} In differentiating between constitutional rights and nonconstitutional rights

under Crim.R. 11(C), courts have held that strict compliance with the rule is required if

the appellant raises a constitutional right delineated in Crim.R. 11(C)(2)(c). State v.

Veney,

,

,

. Substantial

compliance, however, is the standard when the appellant raises a violation of a

nonconstitutional right outlined in Crim.R. 11(C)(2)(a) and (b). State v. Drake, 8th Dist.

Cuyahoga No. 98640,

, citing State v. Stewart,

,

(1977).

{¶11} This court conducts a de novo review to determine whether the trial court

accepted a plea in compliance with Crim.R. 11(C). State v. Cardwell, 8th Dist. Cuyahoga No. 92796,

, ¶ 26, citing

“We are required to

review the totality of the circumstances and determine whether the plea hearing was in

compliance with Crim.R. 11(C).” State v. Schmick, 8th Dist. Cuyahoga No. 95210,

.

{¶12} Hanson only raises one issue with respect to the trial court’s lack of

compliance with Crim.R. 11. He contends that the trial court erred because it informed

him that he could “have both local counsel and the public defender cross-examine

witnesses.” He claims that “this is simply not accurate,” because “[o]nly one attorney is

capable and/or permitted to cross-examine one witness.” He maintains that “since this

issue concerns the court’s failure to accurately describe the constitutional rights being

waived, a showing of prejudice is not required.” After review of the record in this case,

we find no merit to Hanson’s sole issue regarding the trial court’s Crim.R. 11 compliance.

{¶13} At the beginning of the plea hearing, the trial court stated that the defendant

was present “with his attorney Mr. Cavallo.” Frank Cavallo was the assigned public

defender to represent Hanson. The trial court then stated:

I’ll note for the record that Mr. Hanson when we were on the record last week had an opportunity to discuss a possible change of plea. At a time, Mr. Bradley’s, Stephen Bradley’s name was mentioned about possibly being involved with the case. While Mr. Bradley has had conversations with I think Mr. Mahoney as it was indicated some months back, I think even with Detective Sergeant Porter sometime as well, and Mr. Cavallo, he had never made a notice of appearance, although he was on the record, I believe, last week discussing this case and about a possible resolve. Mr. Bradley is also here and also at the defense table. Mr. Bradley is here for mitigation purposes, if I could at least say that, and he would like to say something on the record, as well. So he has been asked by the family to come. He’s been very active in discussions about trying to resolve the case and discussions with Mr. Hanson, so I do want to place that on the record.

I think Mr. Cavallo has been provided all the discovery and evidence and would speak to that issue regarding the change of plea.

{¶14} The trial court then asked, “Mr. Bradley, is that a fair representation of your

position here as counsel,” which Attorney Bradley replied that it was.

{¶15} The prosecutor then outlined the terms of the plea deal, including the

maximum penalty involved with each offense. After outlining the plea, the prosecutor

stated, “[o]ther than that, your Honor, I have provided defense counsel, Mr. Cavallo, with

full discovery. [And] I have had several discussions with Mr. Bradley in regards to

mitigation of the case.”

{¶16} Attorney Cavallo then agreed that the prosecutor properly outlined the plea

deal as he understood it.

{¶17} In response to the trial court’s questions, Hanson stated that he was not

under the influence of any drugs or alcohol at the time of the plea; that he understood he

was waiving his right to go to trial; that no one threatened him or forced him to enter into

the plea deal; and that he was satisfied with “the representation of Mr. Cavallo and Mr.

Bradley when he became involved with the mitigation in discussing this case with [him].”

{¶18} The trial court then proceeded to explain Hanson’s constitutional rights to

him. With respect to the only issue Hanson is raising, the trial court stated, “Each of your lawyers, if Mr. Bradley were to come in as the lawyer on the trial or Mr. Cavallo,

both of them being long-standing attorneys here in this court, both of them would have an

opportunity to examine and cross-examine all of the state’s witnesses.”

{¶19} We disagree with Hanson that “[o]nly one attorney is capable and/or

permitted to cross-examine one witness.” It is well within a trial court’s discretion to

permit different attorneys representing the same party to share responsibilities during a

trial. If Hanson is trying to say that the trial court meant that each of his attorneys could

cross-examine each witness, we disagree that is what the trial court was saying.

{¶20} The important constitutional right that Hanson was waiving by entering into

a plea agreement was that he had a right to confront his accusers. By advising Hanson

that his attorneys could cross-examine each one of the state’s witnesses, the trial court

properly conveyed that right to Hanson. See State v. Johnson, 8th Dist. Cuyahoga No.

89464,

(trial court informing the defendant that he is giving up his right to

cross-examine the state’s witnesses was sufficient to satisfy the constitutional requirement

that a trial court inform the defendant that he is waiving his right to confront his

accusers).

{¶21} Thus, we conclude that the trial court followed the dictates of Crim.R. 11,

including advising Hanson of, and ensuring that he understood, the important

constitutional rights that he was waiving by entering into the plea.

{¶22} Hanson’s first assignment of error is overruled.

Right to Counsel and Effective Assistance of Counsel {¶23} In Hanson’s second assignments of error, he argues that the fact that the trial

court permitted both attorneys to participate, essentially “cut[ting] it down the middle,”

that it “had the effect of denying [him] his constitutionally guaranteed right to counsel of

his choosing.” We disagree.

{¶24} The right to counsel of one’s choice is an essential element of the Sixth

Amendment right to have the assistance of counsel for one’s defense. See State v.

Keenan, 8th Dist. Cuyahoga No. 89554,

. The right is not absolute,

however, and courts have “wide latitude in balancing the right to counsel of choice

against the needs of fairness and against the demands of its calendar.” United States v.

Gonzalez-Lopez,

,

,

(2006).

Therefore, decisions relating to the substitution of counsel are within the sound discretion

of the trial court. Wheat v. United States,

,

,

(1988).

{¶25} In its sound discretion, the trial court permitted Attorney Bradley to

participate to the extent that Hanson requested him to (i.e., in the mitigation phase of

sentencing), even though Attorney Bradley did not file a notice of appearance in the case

or notice of substitution of counsel. Notably, Hanson never requested to have his public

defender removed from the case, nor did he express any dissatisfaction with his public

defender at any point in the plea hearing or sentencing. There is simply nothing in the

record to suggest that the trial court denied Hanson his right to counsel. {¶26} In Hanson’s third assignment of error, he argues that he was denied

effective assistance of counsel.

{¶27} To demonstrate ineffective assistance of counsel, defendants must satisfy

both parts of a two-prong test. Strickland v. Washington,

,

,

(1984). Defendants must first show that their trial counsel’s

performance was so deficient that the attorney was not functioning as the counsel

guaranteed by the Sixth Amendment to the United States Constitution.

Second,

defendants must establish that counsel’s “deficient performance prejudiced the defense.”

The failure to prove either prong of the Strickland test is fatal to a claim of

ineffective assistance. State v. Madrigal,

,

(2000),

citing

{¶28} Within this assignment of error, Hanson only relies on his arguments that he

made in the second assignment of error, namely, that because he was denied his right to

counsel of his choice, he was denied his right to effective assistance of counsel. We

found no merit to that there and we find none here.

{¶29} Hanson’s second and third assignments of error are overruled.

Due Process

{¶30} In his fourth assignment of error, Hanson argues that the “cumulative effect

of a number of decisions by the trial court” denied him a fair plea and sentencing hearing,

which violated his due process rights. {¶31} He first argues that because he was “denied his choice of defense counsel,”

his due process rights were violated. For the reasons stated previously, we find no merit

to this argument.

{¶32} Second, Hanson maintains that the trial court was biased against him “well

before the plea and sentencing hearing” because it had already determined that it would

not sentence him to the minimum sentence. In support of this argument, he claims that

the trial court’s actions at the sentencing hearing showed its alleged bias, including the

fact that (1) the trial court “conducted an extensive questioning of the victim who,

although present, indicated an unwillingness to speak”; (2) the trial court asked the victim

a number of leading questions; and (3) the court used the victim’s answers to its leading

questions to find that Hanson committed almost the “worst form” of the offense.

{¶33} As Hanson notes, he did not raise this issue with the trial court. Accordingly,

he has waived all but plain error. Under Crim.R. 52(B), plain errors affecting

substantial rights may be noticed by an appellate court even though they were not brought

to the attention of the trial court. To constitute plain error, there must be: (1) an error,

i.e., a deviation from a legal rule, (2) that is plain or obvious, and (3) that affected

substantial rights, i.e., affected the outcome of the trial. State v. Barnes,

,

(2002). Even if error satisfies these prongs, appellate courts

are not required to correct the error. Appellate courts retain discretion to correct plain

errors.

Courts are to notice plain error under Crim.R. 52(B), “‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.’” (Citation omitted.)

{¶34} At the sentencing hearing, the prosecutor indicated that at first, the victim

was reluctant to make a statement. But then, after speaking with a representative from

the “victim/witness program,” she learned that this “would be her one and only chance.”

The prosecutor stated to the victim that she did not have to speak to the court. The court

then stated, “Will you answer some questions if I asked?” The victim replied that she

would. Through the court’s questioning, the victim relayed what happened.

{¶35} On the night of the assault, but before it had occurred, the victim called

police to come to her house to do a “protective sweep” because she feared that Hanson

would hurt her. The police came and “looked through her house.” After the police

left, the victim pushed her couch up against her front door to prevent Hanson from getting

into her house.

{¶36} After 11:00 p.m. that night, however, Hanson got into the victim’s house

from another door. The victim was in her bedroom and did not hear him come in; she

just saw him walk into her bedroom from the hallway. Hanson accused the victim of

having a boyfriend. The court then asked the victim if Hanson hit her with an object, the

victim replied, “your honor, I don’t remember anything. The only thing I remember is

him running towards me with his fist and — I don’t know. I saw something black, but I

don’t know if it was an object or what I was seeing.” Hanson proceeded to hit her “a

number of times.” {¶37} The victim stated that after the first hit, she only knows what happened from

what her ten-year-old daughter witnessed. She remembered waking up one time and her

daughter was trying to help her. The next thing she remembered was waking up in the

hospital.

{¶38} The victim told the court that she still feared Hanson. During the assault,

Hanson broke her nose. Further, as a result of the fight, she can no longer do “too much

strenuous activity” because she gets “winded from the chest a lot.”

{¶39} The prosecutor stated that he believed this offense to be “the worst form of

felonious assault,” and asked for “a significant term of incarceration.” The prosecutor

requested the court to consider the fact that Hanson broke into the victim’s home, and

also consider the fact that this was not the first time Hanson had been convicted of failing

to comply with an order of a police officer. Finally, the prosecutor asked the court to

consider the fact that the victim’s ten-year-old daughter witnessed Hanson beating her

mother up and then had to “relive it in a statement to police.” The state requested the

court to sentence Hanson to 14 to 16 years in prison.

{¶40} The court then asked the prosecutor to explain the offense of failure to

comply. The prosecutor stated that a radio call went out to officers to look for a gold

minivan. Lyndhurst police spotted Hanson’s vehicle and began pursuing it with their

lights and sirens activated. With a passenger in his vehicle, Hanson “sped off at a high

rate of speed, ultimately crashing into a chain link fence[.]” Hanson then fled on foot and was able to evade capture that night, even though police used their K-9 unit to search

for him. Hanson was eventually picked up on a warrant by the Fugitive Task Force.

{¶41} Attorney Bradley then spoke to the court. He told the court that Hanson

had been in a relationship with the victim for 10 to 12 years. Hanson was the father of

all five of the victim’s children, including the daughter who witnessed the offense.

Attorney Bradley stated that Hanson was filled with remorse and accepted complete

responsibility. Attorney Bradley explained that on the night of the offense, Hanson was

intoxicated. “Jealously issues motivated him to go over there and confront her. And he

was out of control, [plain] and simple.” Attorney Bradley disagreed that this was the

worst form of the offense because the victim did “not appear” to have “any permanent

physical injuries.” Attorney Bradley further informed the court that Hanson “had a lot

of difficulties in life,” including substance abuse issues, and that Hanson did not have a

lot of family.

{¶42} Hanson apologized to the victim and his children. He stated that he did not

use a weapon in the incident. He then apologized to the court and to the state. He

explained that “during the 7 years from my last incarceration,” he was “trying to be a role

model to [his] kids.” He said that he had started a landscaping business and an auto

body paint shop, and was not “in the streets” doing anything negative. He addressed the

victim and said that he wanted her and the children to feel safe. {¶43} Hanson’s brother then spoke to the court. He stated that when he and

Hanson were growing up, they “raised each other.” He asked the court to consider the

fact that his brother had done “a lot of good” and was “a really good man.”

{¶44} The court proceeded to impose Hanson’s sentence. It disagreed with

Attorney Bradley that the victim did not have permanent injuries. The court stated that

her medical records indicated that she may have some permanent damage to her lungs.

The court said that the victim still had breathing problems five months after the beating.

{¶45} The court indicated that it considered Hanson’s and his brother’s statements

and considered the fact that Hanson had a hard life. The court said, “[m]y real decision

comes from what’s invested in me as a judge from this great state of Ohio that gives me

the ability to sentence someone. I have to decide a case based upon the facts of the case,

the history of the defendant and then make a determination of how do I protect the public

as well.” The court stated that Hanson’s attorneys advocated for a minimum sentence of

four years and that the state requested that it sentence Hanson 14 to 16 years. The court

said that it took all of that into consideration.

{¶46} The court then explained that it viewed the pictures of the victim that were

taken after the beating, stating “this was a brutal beating of a human being.” The court

considered the fact that Hanson climbed “up the back part of the house” to get in and then

severely beat the victim in front of his own child. The court said that Hanson left the

victim lying on the floor in a fetal position. The court concluded that the offense came

“pretty close” to the worst form of the offense. {¶47} The court then discussed the fact that Hanson ran from police and that this

was not the first time that he had done so. The court reviewed Hanson’s prior criminal

history, including drug possession, failure to comply, drug trafficking, illegal processing,

and attempted drug trafficking.

{¶48} The court then imposed its ten-year sentence as previously set forth.

{¶49} After review, we find absolutely no indication of judicial bias. Indeed,

the record reflects that the trial court properly considered all of the factors it was required

to consider in sentencing Hanson. Thus, we find no error, plain or otherwise.

{¶50} Accordingly, Hanson’s fourth assignment of error is overruled.

{¶51} Judgment affirmed.

It is ordered that appellee recover of 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 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.

MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and EILEEN T. GALLAGHER, J., CONCUR