State v. Haugabrook
Opinion
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 103693
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RUSSELL T. HAUGABROOK
DEFENDANT-APPELLANT
JUDGMENT:
VACATED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas Case No. CR-14-589774-A
BEFORE: Kilbane, J., Jones, A.J., and Boyle, J.
RELEASED AND JOURNALIZED: September 15, 2016
ATTORNEYS FOR APPELLANT
John D. Mizanin, Jr. Harvey B. Bruner Harvey B. Bruner & Co. 700 W. St. Clair Avenue Suite 110 Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor Patrick J. Lavelle Assistant County Prosecutor The Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Russell T. Haugabrook (“Haugabrook”), appeals from his guilty plea and sentence for drug trafficking, arguing that the trial court breached its duty to inquire into the conflict of interest in the dual representation of Haugabrook and his wife, Jada Warmington (“Warmington”). For the reasons set forth below, we vacate his convictions and remand to the trial court to obtain a voluntary, knowing, and intelligent waiver of the conflict of interest.
{¶2} In October 2014, Haugabrook and codefendants, Warmington and Jason Houser (“Houser”), were charged in a four-count indictment.1 Count 1 charged each of them with the illegal manufacture of drugs or the cultivation of marijuana. Count 2 charged each of them with trafficking marijuana. Count 3 charged each of them with drug possession. Count 4 charged each of them with possessing criminal tools. Each count carried several forfeiture specifications, and Counts 1-3 also carried a one-year firearm specification.
{¶3} Haugabrook and his wife, Warmington, retained the same attorney to represent them in the matter. In April 2015, the trial court held a hearing at which Haugabrook and Warmington entered into a package plea agreement with the state of Ohio. Prior to the plea colloquies, the trial court asked defense counsel about his clients’ waiver of their right to separate counsel. Haugabrook expressed his reservations about
1As of the release date of this opinion, Warmington and Houser have not filed an appeal.
proceeding with dual representation. The court then took a recess so that Haugabrook and Warmington could discuss the matter with defense counsel. When the parties reconvened, both Haugabrook and Warmington stated that they waive any potential conflict with the dual representation. The trial court then proceeded with the plea hearing. Haugabrook pled guilty to drug trafficking (Count 2), which was amended to list the amount of marijuana involved as equaling or exceeding 20,000 grams, but less than 40,000 grams. The count as originally charge listed the amount of marijuana involved as equal to or exceeding 40,000 grams. In addition, the one-year firearm specification was deleted, but the forfeiture specifications remained. In exchange, the remaining counts and specifications were nolled.
{¶4} Prior to sentencing, Haugabrook and Warmington retained new defense counsel to represent them both. Defense counsel filed a motion to withdraw Haugabrook’s guilty plea. The state opposed Haugabrook’s motion. Prior to sentencing, defense counsel withdrew the motion. The court then proceeded with sentencing. The court sentenced Haugabrook to the minimum mandatory sentence of five years in prison.
{¶5} Haugabrook now brings this delayed appeal, raising the following three assignments of error for review.
Assignment of Error One
The trial court breached its duty to inquire into a conflict of interest in the dual representation of [Haugabrook] and [Warmington].
Assignment of Error Two
[Haugabrook] received ineffective assistance of counsel due to the conflict.
Assignment of Error Three
[Haugabrook] received ineffective assistance of counsel at sentencing due to counsel’s withdrawal of the motion to withdraw plea.
Dual Representation
{¶6} In the first assignment of error, Haugabrook argues the trial court breached its duty to inquire into a conflict of interest in the dual representation of Haugabrook and Warmington. Specifically, Haugabrook contends the court did not explore whether a conflict existed after he expressed his reservations with defense counsel.
{¶7} The Ohio Supreme Court has held that: “[w]here a trial court knows or reasonably should know of an attorney’s possible conflict of interest in the representation of a person charged with a crime, the trial court has an affirmative duty to inquire whether a conflict of interest actually exists.” State v. Gillard, 64 Ohio St.3d 304, 311, 1992-Ohio-48, 595 N.E.2d 878. Once the court has ascertained that a potential conflict exists, the trial court must alert the defendant to the possible consequences of the conflict and obtain a voluntary, knowing, and intelligent waiver of such a conflict. State v. Garcia, 6th Dist. Huron No. H-06-003, 2007-Ohio-1525, ¶ 16, discretionary appeal not allowed, 115 Ohio St.3d 1410, 2007-Ohio-4884, 873 N.E.2d 1315. The trial court has substantial latitude in determining the existence and waiver of an actual or potential conflict of interest. State v. Keenan, 81 Ohio St.3d 133, 137, 1998-Ohio-459, 689
N.E.2d 929. Therefore, “the standard of review for determining whether the court erred in its pretrial disqualification of defense counsel is whether it abused its broad discretion.” State ex rel. Keenan v. Calabrese, 69 Ohio St.3d 176, 180, 631 N.E.2d 119 (1994). “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’” (Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).
{¶8} We note that the Sixth Amendment right to effective assistance of counsel secures to a criminal defendant both the right to competent representation and the right to representation that is free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981); Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Courts have an “independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” Wheat v. United States, 486 U.S. 153, 160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).
{¶9} In Glasser, the United States Supreme Court explained:
Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. Speaking of the obligation of the trial court to preserve the right to jury trial for an accused, Mr. Justice Sutherland said that such duty “is not to be discharged as a matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity.” Patton v. United States, 281 U.S. 276, 312-313, [50 S.Ct. 253, 74 L.Ed. 854 (1930)]. The trial court should protect the right of an accused to have the assistance of counsel. “This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.” Johnson v. Zerbst, 304 U.S. 458, 465, [58 S.Ct. 1019, 82 L.Ed.
1461 (1938)].
Id. at 71.
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