State v. Anderson

2020 Ohio 4937

Opinion

[Cite as State v. Anderson, 2020-Ohio-4937.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. William B. Hoffman, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 20CA0029 JOSHSHUN ANDERSON : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 18CR1025

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: October 14, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOSEPH SNYDER GLORIA L. SMITH Assistant Prosecutor 670 Meridian Way, #188 Richland County Prosecutor's Office Westerville, OH 43082 38 South Park Street Mansfield, OH 44902 Richland County, Case No. 20CA0029 2

Gwin, J.,

{¶1} Appellant Joshshun Anderson appeals from the February 5, 2020 and

February 14, 2020 judgment entries of the Richland County Court of Common Pleas.

Appellee is the State of Ohio.

Facts & Procedural History

{¶2} On November 3, 2018, there was an armed robbery at the Goose Drive

Thru in Mansfield, Ohio. Store employees reported that appellant walked into the store.

Moments later, a second male walked into the store pointing a revolver at store

employees and demanding money. The shooter fired several shots. A store employee

reported that, approximately an hour prior to the incident, the same two individuals were

at the Drive Thru together. A store employee identified store video of the robbery, and

pointed out where appellant motioned the shooter to come into the store and stated,

“Come on. Now.” Appellant denies being part of the robbery. Police were not able to

determine the identity of the shooter.

{¶3} On December 20, 2018, appellant was charged with one count of

aggravated robbery, in violation of R.C. 2911.01(A)(1) & (C) and R.C. 2923.03(A)(2).

Appellee alleged appellant aided and abetted another to rob the Goose by use of a deadly

weapon.

{¶4} The trial court appointed Attorney Hitchman to represent appellant and set

the case for trial on May 20, 2019. On April 17, 2019, Attorney Hitchman filed a motion

to withdraw as counsel, stating that he and appellant were unable to effectively

communicate with each other and appellant wanted new counsel. The trial court issued

a judgment entry on May 16, 2019, permitting Attorney Hitchman to withdraw and Richland County, Case No. 20CA0029 3

appointing Attorney Thompson. On August 9, 2019, Attorney Thompson filed a motion

to continue the trial because appellant was unavailable for trial. The trial court continued

the trial to August 19, 2019. The trial court then continued the trial to September 30,

2019.

{¶5} Attorney Thompson filed a motion to withdraw on September 30, 2019,

requesting leave to withdraw because another attorney in his office represented a witness

appellee intended to call at trial. The trial court issued a judgment entry on October 16,

2019, permitting Attorney Thompson to withdraw. On November 19, 2019, the trial court

issued a second judgment entry granting Attorney Thompson’s motion to withdraw and

appointing Attorney Daniels-Hill to represent appellant. The trial court also issued a

judgment entry continuing the trial to allow Attorney Daniels-Hill to prepare for trial.

{¶6} A jury trial was scheduled for January 13, 2020. Upon joint motion of the

parties, the trial court continued the trial to February 10, 2020. On February 4, 2020,

Attorney Daniels-Hill filed a motion to withdraw as counsel for appellant. The motion

states: appellant wishes to obtain new counsel; appellant asked trial counsel to file the

motion to withdraw; appellant believes he would be best served with different counsel as

his relationship with trial counsel had broken down; appellant wishes to retain private

counsel; and appellant has expressed that he is unhappy with the legal representation he

has received thus far in the case.

{¶7} On February 5, 2020, the trial court issued a judgment entry denying trial

counsel’s motion to withdraw. The trial court first noted the case was set for trial on

February 10, 2020, and was previously set once before. Further, that Attorney Hitchman

was permitted to withdraw, and Attorney Thompson had to withdraw due to a potential Richland County, Case No. 20CA0029 4

conflict. The trial court concluded, “these cases have been on the court’s docket for an

extended period of time and the defendant is currently incarcerated in the county jail.

Accordingly, the motion to withdraw is overruled so these can be tried without further

unnecessary delay.”

{¶8} Prior to the start of the trial, the trial court stated as follows:

As far as the motion to withdraw, Attorney Daniels-Hill did file the

motion, and I overruled it. The reason I overruled it is it was filed last

Thursday, only a couple days before trial. Mr. Anderson has the opportunity

to hire counsel, and he can hire counsel. It’s expensive, but he can hire

counsel. I overruled it because in this particular case the case was set for

trial today. It’s been set for a long time. In fact, it’s a 2018 case, and here

we are in 2020. We’ve had Attorney Hitchman appointed, and he withdrew.

Attorney Thompson was appointed, and then withdrew because of a

conflict. And then Attorney Daniels-Hill was appointed. Attorney Daniels-

Hill is doing a very good job as far as the Court is concerned in representing

Mr. Anderson. He advocated strongly for him at pretrials and that sort of

thing. * * * we need to get the cases resolved because they’ve been pending

for quite some time, and Mr. Anderson has been in jail for a long time and

he deserves to have a speedy trial, to have his trial heard quickly rather

than slowly. So that was my ruling.

{¶9} After jury selection, counsel for appellant stated his client had some

questions for the trial court about the jury selection process because appellant read in a

book that he has the ability to affirmatively select people to be included on the jury. The Richland County, Case No. 20CA0029 5

trial court provided a detailed explanation to appellant about the jury selection process

and explained that the jurors are seated in numerical order, as selected randomly by a

computer. Appellant stated he understood the process and had no further questions.

{¶10} After three witnesses, the court adjourned the trial for the day. After

reconvening two days later, the trial court stated there were plea discussions after the

jury left, but appellant wanted to think about it and speak with his family. Appellant then

informed the trial court he wanted to plead no contest.

{¶11} When the trial court inquired as to whether appellant was happy with trial

counsel during the plea colloquy, appellant stated he was not. After a discussion between

appellant, the trial court, and counsel for appellant regarding appellant’s specific concerns

about counsel, the trial court asked appellant if he was willing to go forward with the plea,

despite having some issues with trial counsel. Appellant responded, “yes, I am.” The

trial court accepted appellant’s plea.

{¶12} At a sentencing hearing, counsel for appellant argued on his behalf;

appellant expressed his remorse to the victims and to the court; appellee spoke about

appellant’s criminal history; counsel for appellee submitted a letter in which appellant

attempted to bribe the victim in this case with $3,000 not to testify against him; and

appellee also noted that appellant would not cooperate in providing detectives with the

name of the shooter. The trial court sentenced appellant to nine years in prison and

issued a sentencing entry on February 14, 2020.

{¶13} Appellant appeals the judgment entries of the Richland County Court of

Common Pleas and assigns the following as error: Richland County, Case No. 20CA0029 6

{¶14} “I. APPELLANT WAS DENIED THE RIGHT TO COUNSEL IN VIOLATION

OF THE SIXTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE 1,

SECTION 10 OF THE OHIO CONSTITUTION.

{¶15} “II. APPELLANT WAS DENIED DUE PROCESS RIGHTS PURSUANT TO

THE FIFTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION AND

ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT

FAILED TO CONDUCT A HEARING ON THE MOTION TO WITHDRAW AS COUNSEL.

{¶16} “III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT RULED ON

THE MOTION TO WITHDRAW AS COUNSEL WITHOUT CONDUCTING A HEARING.

{¶17} “IV. APPELLANT WAS DENIED DUE PROCESS RIGHTS PURSUANT TO

THE FIFTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION AND

ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT

FAILED TO CONDUCT AN INQUIRY WITH APPELLANT REGARDING THE

BREAKDOWN IN THE ATTORNEY-CLIENT RELATIONSHIP PRIOR TO TRIAL.”

I.

{¶18} In his first assignment of error, appellant contends he was denied his right

to counsel and thus his conviction must be reversed because there was a one-month

period when appellant was without counsel, as Attorney Hitchman was granted leave to

withdraw on October 16, 2019, but Attorney Daniels-Hill was not appointed until

November 19, 2019. We disagree.

{¶19} The Sixth Amendment, made applicable to the states through the Due

Process Clause of the United States Constitution, guarantees an accused the “assistance

of counsel.” The right to counsel exists at all critical stages of the criminal process. State Richland County, Case No. 20CA0029 7

v. Frias-Carvajal, 5th Dist. Delaware No. 10-CA-33, 2011-Ohio-1197. However, any

denial of counsel is harmless error if it can be proven to be harmless beyond a reasonable

doubt. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). Such

error can be harmless unless it has a “substantial and injurious effect or influence * * * in

determining the verdict.” State v. Naugle, 182 Ohio App.3d 593, 913 N.E.2d 1052 (5th

Dist. Stark 2009).

{¶20} Upon our review of the docket in this case, from October 16, 2019 to

November 19, 2019, the only documents filed were Attorney Thompson’s motion for fees,

and the trial court’s judgment entry granting his motion. Appellant was not denied counsel

at any “critical stage” of the criminal process. Further, immediately upon Attorney

Daniels-Hill’s appointment, the trial court issued a judgment entry continuing the trial so

that new counsel could prepare for the trial. We do not find any substantial or injurious

effect or prejudice to appellant from the lack of counsel from October 16, 2019 to

November 19, 2019; thus, any error is harmless beyond a reasonable doubt.

{¶21} Appellant’s first assignment of error is overruled.

I., II., III., IV.

{¶22} Appellant argues the balance of his assignments of error together, and

contends the trial court committed error in failing to hold a hearing on the record to inquire

as to the breakdown in the attorney-client relationship prior to trial. Appellant relies on

State v. Deal, 17 Ohio St.2d 17, 244 N.E.2d 742 (1969), in support of his argument that

the trial court should have held a hearing to inquire into the reasons submitted by his trial

counsel in the motion to withdraw. Richland County, Case No. 20CA0029 8

{¶23} The general rule is that the trial court is vested with discretion as to whether

to hold a hearing upon a motion to withdraw representation. Garfield Hts. v. Wolpert,

122 Ohio App.3d 287, 701 N.E.2d 734 (8th Dist. Cuyahoga 1997). Further, it is well

settled that a withdrawal motion is within the sound discretion of the trial court. State v.

Edgell, 30 Ohio St.2d 103, 283 N.E.2d 145 (1972). However, we must consider whether

the duty prescribed in Deal arises in this case.

{¶24} In Deal, the Ohio Supreme Court held that, in the course of a trial for a

serious crime, where an indigent defendant questions the effectiveness and adequacy of

assigned counsel, the trial court is obligated to inquire into the complaint and make such

inquiry a part of the record. 17 Ohio St.2d 17, 244 N.E.2d 742 (1969). “The trial judge

may then require the trial to proceed with assigned counsel participating if the complaint

is not substantiated or is unreasonable.” Id. However, while a trial court has a duty to

make on-the-record inquiries into specific objections about the performance of court-

appointed counsel, the duty prescribed by Deal only arises if the allegations are

sufficiently specific; vague or general objections do not trigger the duty to investigate

further. State v. Pace, 5th Dist. Morgan No. 14 AP 0007, 2015-Ohio-2884.

{¶25} This Court has previously held that general objections, such as a statement

that defense counsel was not representing a defendant properly, a statement that defense

counsel would not fight for the defendant, or a statement that a defendant was having

difficulty with his attorney, were not specific objections triggering the Deal inquiry. Id.;

State v. Ervin, 5th Dist. Stark No. 2000CA00297, 2001 WL 1512190 (Nov. 26, 2001).

Thus, appellant’s assertions that he wishes to obtain new counsel, he believes he would Richland County, Case No. 20CA0029 9

be best served with different counsel, and that he is unhappy with the legal representation

in his case thus far, are not specific objections triggering the Deal inquiry.

{¶26} However, this Court has also held that when a defendant specifically alleges

a breakdown in communication, the trial court has an obligation to inquire to determine

whether the “breakdown was of such magnitude as to jeopardize the defendant’s right to

effective assistance of counsel,” i.e., whether appellant demonstrates that the breakdown

caused counsel’s performance to be deficient or any deficiency in counsel’s performance

prejudiced the defendant. State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988);

State v. Ervin, 5th Dist. Stark No. 2000CA00297, 2001 WL 1512190 (Nov. 26, 2001);

State v. Murphy, 5th Dist. Richland No. 99CA48, 2000 WL 222000 (Feb. 22, 2000).

{¶27} Under the facts and circumstances of this case, we find appellant’s

assertion of a breakdown in communication was a specific objection triggering the trial

court’s duty to inquire into the complaint and make such inquiry a part of the record. The

trial judge recognized appellant’s request for new counsel, but did not inquire into the

nature of the breakdown between and appellant and his appointed counsel.

{¶28} Based on the foregoing, appellant’s first assignment of error is overruled.

The balance of appellant’s assignments of errors are sustained. Richland County, Case No. 20CA0029 10

{¶29} The February 14, 2020 sentencing entry is reversed and remanded to the

Richland County Court of Common Pleas for a re-investigation of appellant’s claim of

incompetent counsel, specifically the breakdown in communication. This re-investigation

shall be conducted on the record. If the trial court finds the claim is unfounded or finds

that appellant does not demonstrate the breakdown was of such magnitude as to

jeopardize appellant’s right to effective assistance of counsel, the trial court my re-enter

the judgment and sentence.

By Gwin, J.,

Hoffman, P.J., and

Delaney, J., concur