[Cite as State v. Hardin, 2020-Ohio-1052.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-18-014
S-18-023
Appellee S-18-039
v. Trial Court No. 17CR292
17CR1070
Dearlo B. Hardin 17CR917
Appellant DECISION AND JUDGMENT
Decided: March 20, 2020
****
Beth A. Tischler, Sandusky County Prosecuting Attorney,
Mark E. Mulligan and Joseph H. Gerber, Assistant Prosecuting
Attorneys, for appellee.
Brett A. Klimkowsky, for appellant.
*****
OSOWIK, J.
Introduction
{¶ 1} Over the course of ten months, beginning in late 2016, the defendant-
appellant, Dearlo Hardin, committed a series of felonies, which resulted in four separate
indictments, all of them in the Sandusky County Court of Common Pleas. Three cases
were resolved by plea agreement, resulting in an aggregate prison sentence of 16 years.
The fourth case was dismissed, also by agreement. Hardin appealed all four judgments,
although he subsequently withdrew his appeal of the judgment that dismissed his case.
We consolidated the remaining three appeals sua sponte. It is those appeals that are
currently before us.
{¶ 2} Hardin’s single assignment of error pertains to the appointment of counsel in
the case that was previously appealed and dismissed. As set forth below, we deny the
appeal and affirm the judgments below.
Procedural History
{¶ 3} On May 2, 2017, Hardin was indicted in case No. 17CR292 on four counts:
burglary, in violation of R.C. 2911.12(A)(1), a felony of the second degree (Count 1);
aggravated burglary, in violation of R.C. 2911.11(A)(2), a felony of the first degree
(Count 2); violating a protective order, in violation of R.C. 2919.27(A)(1), a felony of the
third degree (Count 3); and resisting arrest, in violation of R.C. 2921.33(A), a
misdemeanor of the second degree (Count 4). Hardin requested that counsel be
appointed for him based upon his indigency status. On August 25, 2017, the trial court
appointed Attorney Jeffrey Kane to represent Hardin, without objection.
{¶ 4} On December 15, 2017, Hardin was indicted in case No. 17CR1150.
According to the docket sheet for that case, Hardin was indicted on three counts:
burglary, in violation of R.C. 2911.12(A)(2), a felony in the second degree (Count I);
violating a protection order, in violation of R.C. 2919.27(A)(1)(B)(4), a felony of the
2.
third degree (Count 2); and criminal damaging, in violation of R.C. 2909.06(A)(1), a
misdemeanor of the second degree (Count 3). Hardin was arraigned on February 12,
2018. The trial court joined the case for purposes of trial with case No. 17CR292
because the cases involved the same victim. Again, the trial court appointed Attorney
Kane to represent Hardin.
{¶ 5} On April 2, 2018, a change-of-plea and sentencing hearing was held. Under
the terms of the plea, Hardin agreed to plead guilty in case No. 17CR292 to two counts of
burglary. In exchange, the state agreed not to prosecute the remaining counts in that
indictment, to recommend concurrent sentences, and to dismiss case No. 17CR1150 in its
entirety. Following a colloquy, the court accepted Hardin’s guilty plea, found him guilty,
and sentenced him to serve six years in prison as to each offense, to be served
concurrently to one another. Case No. 17CR1150 was “dismiss[ed] * * * by separate
entry.” (April 3, 2018 Judgment Entry in case No. 17CR292). Hardin appealed both
judgments but soon withdrew the appeal in case No. 17CR1150. On June 6, 2018, we
ordered the appeal dismissed “[i]n accordance with appellant’s ‘Notice of Dismissal
and/or Motion to Dismiss Criminal Appeal,’ filed on June 1, 2018.”
{¶ 6} The two other cases in this consolidated appeal, case Nos. 17CR1070 and
17CR917, were tried before a different trial judge in Sandusky County. Different counsel
was appointed to represent Hardin in these cases (i.e., not Attorney Kane), and Hardin
does not challenge either appointment. Therefore, our description of these cases is brief:
In case No. 17CR1070, Hardin was convicted of rape, in violation of R.C.
3.
2907.02(A)(2)(B). He was sentenced to serve 60 months in prison, by judgment entry
dated May 30, 2018.
{¶ 7} In case No. 17CR917, Hardin was convicted of burglary, in violation of R.C.
2911.12(A)(2). He was sentenced to serve 60 months in prison, by judgment entry dated
December 3, 2018. The sentences were ordered to be served consecutively to each other
and to 17CR292, for a total prison sentence of 16 years.
{¶ 8} Hardin assigns a single assignment of error for our review:
The Trial Court committed reversible error at the arraignment by
infringing upon the due process right of Dearlo B. Hardin (“Appellant”) to
select an attorney of his own choice without the Trial Court first
ascertaining whether Appellant wanted to hire or be appointed said attorney
when the Trial Court selected the attorney for Appellant.
Law and Argument
{¶ 9} Hardin’s sole assignment of error pertains to his “arraignment [on] February
12, 2018” in case No. 17CR1150, i.e., the case that was previously appealed and
dismissed. Specifically, Hardin claims that the trial court failed to “clarify[]” that Hardin
could hire “his own” lawyer (at his own expense) or accept a court-appointed lawyer (at
state expense). Hardin alleges that the trial court “forced [him] to be represented” by
court-appointed counsel without first confirming that Hardin did not want to hire private
counsel.
4.
{¶ 10} We agree with the state that Hardin is attempting to challenge a decision by
the trial court in a case that was dismissed against him, then appealed (by Hardin), and
then voluntarily withdrawn (by Hardin). Case No. 17CR1150 has long-since resolved in
terms that were favorable to Hardin. In any event, this court has no jurisdiction to
consider Hardin’s assignment of error.
{¶ 11} Hardin’s assignment of error is found not well-taken. Accordingly, the
following judgments of the Sandusky County Court of Common Pleas are affirmed: the
April 3, 2018 judgment entry in case No. 17CR292, the May 30, 2018 judgment entry in
case No. 17CR1070, and the December 3, 2018 judgment entry in case No. 17CR917.
Pursuant to App.R. 24, Hardin is ordered the pay the costs in these appeals. It is so
ordered.
Judgments affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
5.