State v. MacConnell

2017 Ohio 7638

• Court: Ohio Court of Appeals
• Decided: September 15, 2017
• Docket: 27292 27293
• Status: Published

Opinion

[Cite as State v. MacConnell, 2017-Ohio-7638.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : C.A. CASE NOS. 27292 and 27293 : v. : T.C. NOS. 15-CR-3268 and 16-CR-74 : RION T. MacCONNELL : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the ___15th __ day of _____September_____, 2017.

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JOHN K. LIMOLI, Atty. Reg. No. 0058551, 1402 Sunset Drive, Fairborn, Ohio 45324 Attorney for Defendant-Appellant

.............

DONOVAN, J.

{¶ 1} This matter is before the Court on the consolidated Notices of Appeal of Rion

MacConnell. MacConnell appeals from his September 29, 2016 judgment entries of -2-

conviction, following the denial of his pre-sentence motion to withdraw his guilty pleas, in

Case No. 2015 CR 3268, to one count of theft ($1,000.00) (without consent), in violation

of R.C. 2913.02(A)(1), and in Case No. 2016 CR 0074, to one count of

telecommunications fraud, in violation of R.C. 2913.05(A), both felonies of the fifth

degree. The trial court sentenced McConnell to six months for theft and to 12 months

for telecommunications fraud, and it ordered the sentences to be served consecutively.

{¶ 2} In Case No. 2015 CR 3268, McConnell was indicted on February 26, 2016,

on the one count of theft, he entered a plea of not guilty on March 4, 2016, and on March

8, 2016, Public Defender Melissa Pfahler entered an appearance of counsel. On March

11, 2016, Pfahler filed a “Motion to Withdraw,” noting that she “represented co-defendant

and potential material witness, Corey Davidson, in Dayton Municipal Court case

#15CRB7070.” MacConnell filed a pro se “Motion to Dismiss Charges Two Prong” on

March 15, 2016, arguing that he is without a lawyer, that Corey Davidson committed the

theft offense at issue, and that the value of the item stolen is less than $1,000.00. On

March 16, 2016, the court granted the “Motion to Withdraw” and appointed Attorney Dawn

Garrett to represent MacConnell. On May 19, 2016, the State opposed MacConnell’s

motion to dismiss, and on June 9, 2016, the court overruled the motion, finding that

MacConnell was properly represented and indicted. On June 13, 2016, Garrett filed

“Defense Counsel’s Motion to Withdraw and for New Counsel to be Appointed for

Defendant with Memorandum Argument Included Herein,” arguing that the “attorney-

client relationship has broken down to such an extent that it is no longer possible to

provide effective representation and said counsel, with consent of the client, has therefore

filed the within motion to withdraw * * *.” On June 23, 2016, the court granted the motion -3-

and on the same day the court appointed Attorney John Leahy to represent MacConnell.

On July 20, 2016, “Defendant’s Motion for Valuation Expert” was filed. On August 12,

2016, MacConnell filed a pro se “Motion of Defendant to Have Counsel Replaced

Argument Included Herein,” arguing that “the parties can no longer communicate

effectively or even work on this matter.” The motion requested the court “to appoint new

counsel in this matter.”

{¶ 3} In Case No. 2016 CR 0074, MacConnell was indicted on March 24, 2016 on

two counts of telecommunications fraud, he pled not guilty on March 30, 2016, and on

June 13, 2016, Garrett filed “Defense Counsel’s Motion to Withdraw and for New Counsel

to be Appointed for Defendant with Memorandum Argument Included Herein,” again

arguing that the attorney-client relationship “has broken down.” On June 23, 2016, the

court granted the motion and appointed Leahy to represent MacConnell. On August 18,

MacConnell filed a pro se “Motion of Defendant to Have Counsel Replaced Argument

Included Herein. MacConnell again argued that his communications with Leahy had

“broken down,” and he requested the court “to appoint new counsel in this matter.”

{¶ 4} In each case, also on August 18, 2016, MacConnell filed a pro se “Motion to

Re-consider of Defendant to have Counsel Replaced with Affidavits Here-In”. The

identical motions provide as follows:

The defendant has asked his lawyer, J. Jack Leahy to help protect

his interest and rights and to get * * * an expert that court has said it will be

liberal in agreeing for pay [sic] but no such action has been made and we

are less than a week till the jury [sic]. I also asked for other motions to filed

[sic] * * * and no such motions have been file[d]. * * * -4-

The court said on the record the defendant [h]as had three lawyers

replaced. That was an error of the court. Upon trying to offer information

to the court the defendant was shut down. The defendant [h]as NEVER

asked for another lawyer to be replaced in this case till the current matter at

hand. The first lawyer did that motion due to a conflict. * * *

Now the court [h]as denied my motion in the matter for the instant

motion. After defendant myself, made the request, the arguments of law,

the court denied my request again I said, “Objection” and was told it didn’t

matter if I wanted my own lawyer he would have [to] be ready on Monday.

I have tried to talk to John K. Limoli ESQ about this matter but he said as I

was covered by another lawyer he could not talk about that case. * * *

***

I have also just learned that J. Jack Leahy graduated from the U.D.

law school in the past two years become an alumni of the school (U.D.)

where the alleged theft happened. I feel this might cause the lawyer to

have bias feelings toward the defendant. He might have been a victim

himself.

{¶ 5} On August 19, 2016, in Case No. 2015 CR 3268, the court issued a

“Decision, Order, and Entry Overruling Defendant’s Motion.” The court determined in

part as follows:

Upon review, the Court first notes that at the beginning of his case in

February of 2016, public defender Melissa Pfahler was appointed to

represent Defendant. On March 11, 2016, Ms. Phahler requested to -5-

withdraw as Defendant’s Counsel because of a conflict. The court granted

Ms. Pfahler’s request on March 16, 2016, and attorney Dawn Garrett was

appointed on March 17, 2016. On June 13, 2016, Ms. Garrett requested

to withdraw as Defendant’s attorney due to the irretrievable breakdown of

the attorney client relationship. On June 23, 2016, the Court granted Ms.

Garrett’s request and, on the same day, Mr. Leahy was appointed to

represent Defendant in this matter. The Court finds that, although

Defendant asserts that Ms. Garrett voluntarily requested to withdraw,

Defendant’s actions precipitated the breakdown of that relationship and

contributed to Ms. Garrett’s request. Further, Mr. Leahy indicated to the

Court on August 17, 2016 that he is prepared for the trial on August 22,

2016, and is able to properly represent Defendant, and did not state that

there has been an irretrievable breakdown of the attorney client relationship.

In addition, the Court notes that Mr. Leahy is a competent attorney and the

fact that he is a former University of Dayton student is completely irrelevant

to this matter. It is apparent to the Court that Defendant’s purpose for filing

this Motion is to delay the trial, and there is no basis for any concerns

relating to Mr. Leahy’s competency or ability to provide Defendant with

effective legal representation. Finally, the court notes that it informed

Defendant on August 17, 2016 that he is free to hire any attorney he wishes,

and is not required to be represented by Mr. Leahy; however, the Court also

made it clear that any new counsel retained by Defendant must be ready to

proceed with the trial on August 22, 2016, in accordance with the Court’s -6-

schedule for this matter.

{¶ 6} Also on August 19, 2016, in Case No. 2015 CR 3268, a “Motion for Disclosure

of Brady Material” was filed.

{¶ 7} On August 22, 2016, MacConnell’s plea hearing occurred. Therein, the

following exchange occurred:

MS. EGAN: * * * We’re here in 2015-CR-3268.

THE COURT: * * * and that’s the theft offense, correct?

MS. EGAN: It is, Your Honor. It’s one sole count in the indictment.

THE COURT: And what’s the case number in the other case?

MS. EGAN: That one is 2016-CR-74.

MS. EGAN: That one is two counts of telecommunications fraud.

And those are F-5 offenses.

THE COURT: And Defendant is going to be pleading to one or both

of those?

MS. EGAN: Count I in the indictment. With that, we would dismiss

Count II.

THE COURT: * * * Mr. Leahy, is that understanding of the plea

agreement? [sic]

MR. LEAHY: It is, Your Honor.

THE COURT: * * * The record should reflect that this matter was

set for a jury trial this morning. In fact, we have, the jurors have been

checked in and the jury trial is ready to go in my court room. We are in -7-

another judge’s courtroom for this purpose of this plea.

Mr. MacConnell, let me ask you. Is this your understanding of the

plea agreement?

THE DEFENDANT: Yes.

THE COURT: Is this what you want to do this morning?

THE DEFENDANT: I want to enter this with the - - yeah, with the

dates that we have in mind for the PSI and everything else. Yes.

THE COURT: * * * So what I told your attorney, we’re going to have

you back on September 28th.

THE COURT: * * * I know your attorney has gone over the plea

agreement with you or the plea forms. I need to go through with you, sir,

and take your plea and ask you here, orally.

First of all, we’re going to do it in both of these cases combined. So my

questions go to both.

{¶ 8} The court then ascertained from MacConnell that he is a United States

citizen, that he is 39 years old and has attended college, that he can read and write, and

that he does not have a physical or mental condition that could impair his understanding

of the proceedings. The court ascertained that MacConnell was not on community control

sanctions or post-release control. The following exchange occurred:

THE COURT: Now, sir, you’re charged in this case with one count

of theft, a felony of the fifth degree, and one count of telephone (sic)

communication fraud, a felony of the fifth degree. -8-

Do you understand that as a result of your plea, the Court could

sentence you to financial sanctions including a fine of up to $2,500; I can

impose court costs, restitution if there is any, and other financial sanctions;

do you understand that?

THE DEFENDANT: Yes, I did.

THE COURT: Do you also understand, sir, the Court could

sentence you to a prison term of 6 to 12 months or any month in-between

that on each of these two offenses; do you understand that?

THE COURT: And if I ran them consecutively that could be a total

of 24 months; do you understand that?

{¶ 9} The court advised MacConnell that upon completing any prison sentence, he

may be required to serve a period of three years of post-release control, and of the

consequences of violating post-release control and being convicted of a felony while on

post-release control. The court advised MacConnell that he is eligible for community

control sanctions, and the consequences of violating community control. The following

exchange occurred:

THE COURT: Sir, you heard the plea agreement that was read into

the record before we began. Is there anything else that you believe should

be part of the plea agreement other than what was said?

THE DEFENDANT: No.

THE COURT: Sir, has anyone, including your attorney, promised -9-

you anything else or that you will receive community control sanction or will

not receive a prison sentence by pleading guilty - -

THE COURT: - - to this offense?

THE COURT: You understand, sir, that a guilty plea, it is a complete

admission of your guilt and you’re giving up your right to appeal any pre-

trial rulings in this case; do you understand that?

THE COURT: You also understand, sir, upon accepting your plea

of guilty the court is going to enter a judgment of guilty against you and

we’re going to set your case down for sentencing at a later date; do you

understand that?

{¶ 10} The court then thoroughly advised MacConnell of the constitutional rights

he was giving up by pleading guilty, namely his right to a jury trial, to require the State to

prove his guilt beyond a reasonable doubt to all members of a jury, to confront witnesses,

to have compulsory process for obtaining witnesses in his favor, and to not be forced to

testify. MacConnell indicated his understanding of the rights waived by his guilty pleas.

Before providing a statement of the charges, the prosecutor indicated to the court that in

“the 2016 matter where we are dismissing Count II, it is in the plea form but the State is

requesting restitution on all indicted counts,” and MacConnell indicated his understanding

of the prosecutor’s representation. MacConnell then asked the court for a “ballpark” -10-

amount of the restitution, and the court indicated that “[t]hat’s part of the PSI investigation

is to determine restitution.” The following exchange occurred:

MS. EGAN: * * * Your Honor, in the 2015 case, the State charges

by way of indictment that on or about September 24th, 2015 in the County

of Montgomery, State of Ohio, Rion T. MacConnell, with purpose to deprive

the owner, to wit, Reda Aldahan of property or services, did knowingly and

without the consent of the owner or person authorized to give consent,

obtain or exert control over said owner’s property or services, to wit,

miscellaneous items, having a value of $1,000 or more but less than $7,500

in violation of Section 2913.02(A)(1) of the Ohio Revised Code, a felony of

the fifth degree.

In 2016CR74, the State charges in Count I of the indictment that on

or about January 4th, 2016, in the State of Ohio, County of Montgomery,

Rion T. MacConnell did knowingly disseminate, transmit or cause to be

disseminated or transmitted by means of a wire, radio, satellite,

telecommunication, telecommunications device or telecommunications

service any writing, data, sign, signal, picture, sound or image with purpose

to execute or otherwise further the scheme to defraud in violation of Section

2913.05(A) of the Ohio Revised Code, a felony of the fifth degree.

THE COURT: Mr. MacConnell, did you understand what the

Prosecution just said?

THE COURT: Are those facts true? -11-

THE COURT: Have you had the opportunity to talk with your

counsel about all the elements of the offense including any possible

defenses and motions that you could file?

THE COURT: Are you entering your plea voluntarily?

THE DEFENDANT: Yes, I am.

THE COURT: No one’s forcing you to do this, right?

THE COURT: And you’re satisfied with the representation of your

attorney in this case.

THE COURT: Now, sir, you have the Court’s plea form in front of

you there for those two separate cases. You’ve heard me go through all

the rights. If you understand your rights, the potential penalties and nature

of the charges, you still want to plead guilty, sign those forms for me, please.

(Pause)

THE COURT: Mr. MacConnell, before we go any further, is there

anything, at all, that you do not understand up to this point in time?

THE DEFENDANT: I would like to be able to pay restitution before

then and I would like to have a ballpark number before the sentencing.

THE COURT: Sir, I don’t have it. I don’t know if it was in the police

report. Mr. Leahy may have it in the police report. I don’t know. When -12-

you’re interviewed for your PSI, they should be able to provide that number

to you. I just don’t have it right now.

THE DEFENDANT: Okay.

THE COURT: Does that make any difference with what we’re doing

here today?

THE DEFENDANT: No. I just wanted to be able to see it and make

things right.

THE COURT: All right. Well, I appreciate that.

Do you have any other further questions for your attorney or the

Court before we go any further?

THE COURT: Mr. MacConnell, in Case Number 15-CR-3268 to the

charge of theft, a felony of the fifth degree, how do you plead?

THE DEFENDANT: Guilty.

THE COURT: And in Case Number 16-CR-74 to Count I of the

indictment, telecommunications fraud, a felony of the fifth degree, how

would you plead?

THE DEFENDANT: To the one count guilty.

THE COURT: It’s Count I, telecommunications fraud.

THE COURT: How do you plead?

THE DEFENDANT: Yes. Guilty.

{¶ 11} MacConnell’s plea forms indicate that he voluntarily gave up his -13-

Constitutional rights, withdrew his pleas of not guilty, and entered pleas of guilty in Case

No. 2015 CR 3268 and Case No. 2016 CR 0074.

{¶ 12} On September 7, 2016, a “Substitution of Counsel Appearance of Counsel”

was filed in each case which provides that Attorney John Limoli is substituting for Leahy.

On September 22, 2016, Motions to Withdraw Guilty Pleas were filed in both cases. In

Case No. 2015 CR 3268, the motion provides that the property taken “was a used laptop

computer and a used text book. Defendant, who had a variety of attorneys, asked each

attorney to research the value of the property because he did not believe the property

value sufficed to merit a felony of the fifth degree.” According to the motion, “the charge

should have been a misdemeanor.” MacConnell asserted that he “was not present at

voir dire,” and that he “has a right to be present at all stages of the criminal proceedings.”

He stated that his “attorney simply told the defendant that the jury had been selected and

that the defendant would be well advised to enter a plea prior to proceeding further.

Defendant had no way of knowing the make up [sic] of the jury or whether any of the

jurors should have been excused for reasons known to the defendant, such as prior

acquaintance.” According to MacConnell, he “entered a plea because he was afraid of

proceeding further with an unknown jury. Defendant’s plea was the result of fear,

emotion and panic and, as such, was not voluntarily given but, instead, was the result of

the defendant’s impaired judgment due to the emotions and fear of the moment.”

{¶ 13} In Case No. 2016 CR 0074, MacConnell asserted that he “had a variety of

attorneys, all appointed by the Court. If further appears that communications between

defendant and his assorted attorneys were confused because the defendant believed that

the telecommunications charges would be dropped if he agreed to plead guilty to the theft -14-

offense.” MacConnell further repeated his argument that he was not present at voir dire.

The State opposed the motions on September 26, 2016.

{¶ 14} On September 28, 2016, the court held a hearing on MacConnell’s motions.

Therein, MacConnell testified as follows:

MR. LIMOLI: * * * Go ahead Mr. MacConnell. You were talking

about the 2015 case.

THE DEFENDANT: Yeah, it was a theft that happened, an alleged

theft that happened at UD that Corey Davidson was the one that was there.

She had left a book bag there and - -

BY MR. LIMOLI:

Q. So just a theft offense, correct?

A. It was a theft offense. It was, I believe it was under $500.

Q. * * * Could you discuss the 2016 case. Just tell the Court what

it’s about, to your knowledge.

A. I have been told not to worry about the ’16 because it wasn’t

even set for trial. But it was a telecommunications case, I believe, out of

Moraine city.

Q Do you have any knowledge regarding this case? What the

allegations are?

A. I have never even seen the discovery with that case yet.

Q. * * * Well, you’ve been represented by several attorneys in this

matter; is that correct?

A. They were court-appointed attorneys at that time. That is -15-

correct.

Q. * * * Let’s discuss the last attorney and I don’t want any

derogatory remarks if you didn’t like the attorney. He’s presumed

competent; I believe he’s competent. However, that doesn’t necessarily

mean the two of you are going to get along. Did you have confidence in

your last - - well, first. Who was your last attorney?

A. John Jack Leahy. He has two first names.

Q. * * * What was your interaction or how did the two of you get

along?

A. I had not interacted well with him. I had written that on the

court docket a few times. I had turned it in. And I did not interact well with

him and I had asked for him to be - - I had asked to hire my own attorney

which now has happened.

And I was told that it would have to go to trial on that Friday but - - or

that Monday. I was told that on that Thursday or Friday, I don’t remember

the day exactly, but. And I had talked to you and there was no way that

you could’ve been prepared. You hadn’t even seen anything.

And I was left with Mr. John Jack Leahy who is actually sitting in this

courtroom today. I assume he’s been called as the prosecutor’s witness

now. But he had met my parents a few times and he had even laughed at

me twice. I had no confidence in him and I had stated that for the record.

Q. Safe to say that you didn’t get along very well on a personal

relationship, a personal relationship as far as you and Mr. Leahy; is that a -16-

safe statement?

A. That is a very safe statement, yes.

Q. * * * Do you remember the day of trial?

A. Yeah, I remember the – yeah I remember that Monday, yes.

Q. * * * Tell me what, just tell the Court, from your perspective what

happened on that day?

A. That morning I had showed up downtown a little bit earlier. I

actually went to Leahy’s office and he, I had beat him there. He didn’t even

know I was coming. * * * He popped up on the same floor - - it was Floor 5,

I remember now. And I had asked him and I said are you fired up. He

says no. And I had asked him what were we going to do. I asked him do

you have the jury’s name or the jurors’ names. He said nobody went and

picked it up yet.

Q. I’m going to slow you down just a little bit. I’m more concerned

with what happened when you got to the courthouse. Where were you?

What transpired?

A. * * * I left his office, beat him over here because he had to do

some things. Came over here. I was sitting in the hallway. I believe

Colleen had walked in first and then he had walked in. And I was just sitting

out in the hallway.

A bunch of jurors were coming in. I had seen them.

He had, they, then John or Jack Leahy had arrived and they shut the -17-

door to the bailiff’s chambers. I was out there. And he had come out and

talked to me over by the bathrooms. And he just said that their offer had

remained the same where she would stand mute and it would be up to the

PSI. And I said well I want to go ahead. And he, then he went back in.

He came back out and he said they have their victims or their witnesses

have arrived and he says I don’t believe you have any options. He says -

- and I said do you have the value expert that the judge approved. And he

goes no, we don’t have any experts doing the value. And I go well that’s

what I had asked for. It’s on the docket. He had filed the motion and he

had never done that. And I was like well this under 1,000 or 500. I don’t

know what the number was because I think Corey’s pawnshop ticket was

like 50 or 72 bucks or something. And - -

Q. Mr. MacConnell - -

A. Yes.

Q. - - we’re not here to - -

A. Oh, okay.

Q. - - rehash this case. I just want to know what your state of mind

was - -

A. I was panicked and worried - -

Q. - - on that particular day.

Q. - - after I had met him over at his office and I had asked him that

question, I was just totally distraught.

Actually, that day, I had called my mom and I had told her that I didn’t -18-

feel I had any options and I think I was being railroaded. And she says just

calm down, think about it.

I was just panicked as, all to death. And he came back out and he

says, you know. And I said you really don’t have the expert. He goes no,

he goes - - and, at that point, I says what are we going, what am I doing.

And - -

Q. What was your state of mind that day? Where were you

located? Were you in this courtroom?

A. I was out in the hallway, I never walked into - - I walked into this

courtroom once and the bailiff had asked me to go back out, Mr. Schmidt.

I believe I’m pronouncing his name right. And I went back out there. We

had never, I don’t believe after that I had ever come in this courtroom.

Q. What led up to you entering the plea in these cases?

A. Jack had said if you got the restitution and if, and if you entered

it it would be - - and I says this is what we’re doing on this one? He said

you don’t have any options; I don’t have anything else. And I said - - I was

just totally distraught. And he went back into the thing. Colleen had left.

MR. LIMOLI: Please address her as Ms. Egan instead - -

THE DEFENDANT: Ms. Egan. And she had left and I came back.

And then Jack Leahy had come and had, he said we’re going down to

another courtroom on the same side, I think all the way at the end of the

hall. We had gone down there. I was sitting in there. And the Honorable -19-

Judge had walked in and he had told me that there was, that his courtroom

was preserved [sic] by the jurors and that was up there and they were going

to take the plea.

And I had entered the, I entered the plea on the case and ‘cause I

was basically told that I had no options.

Q. What was your understanding - - was this a jury trial?

A. Yeah, this was a jury trial.

Q. What was your understanding regarding selection of the jury?

A. I hadn’t been allowed in the courtroom after Mr. Schmidt, I hadn’t

tried to go back in yet either. But after Mr. Schmidt, the bailiff, had come

he had told me that the room, that the jurors were in the room. * * * But I

was told that I was entering the plea to the ’15 case, the UD theft case, the

alleged UD case as it’s referred to and I had done - - and that’s what I was

told. * * *

Q. The question was what was your understanding as far as the

jury? Had it been selected?

Q. Had it been impaneled?

A. Yeah, there was a room full, there was a room full of jurors.

Exactly what I was said or actually I was told.

Q. At that time, did you believe that the jury had been picked? -20-

A. Yes, I did. And I have never seen the questionnaires or the

names of the jurors, where they had gone to school or anything, and Jack

said, it had not been picked yet.

Q. Did you believe that Mr. Leahy was going to prove (sic) the

assistance you wanted that day or that you, would be expected by you?

A. No, not at all.

{¶ 15} On cross examination, MacConnell stated that he was diagnosed with a

learning disability in college. The following exchange occurred regarding the presence

of the jury:

Q. * * * Did I understand you correctly that on the day of trial, in the

2015 case, you believed that a jury had been impaneled, had been picked,

in that particular matter?

A. I don’t know the exact terminology but I know that a jury was in

this room is what I was told.

Q. Well, a prospective jury was in this room, isn’t that true?

A. * * * I was not in the courtroom. I have no other knowledge.

Q. * * * What is it about that that made you feel that you didn’t have

the option to proceed to trial?

A. Because I didn’t even know if they were young, old, if they’d gone

to UD, if they were cops, if that had been victims. * * *

Q. Who told you the jurors were questioned? -21-

A. I was told by Jack - - I was told that the jurors were in the room.

Q. * * * Who told you that the jurors had been questioned?

A. When I was told by Mr. Schmidt that the jurors were in the room

and he was having printer problems, I figured they were signing their papers

and they were doing their oaths. I was never told - -

Q. So that was your assumption.

A. I didn’t have any, to get to question [sic]. I didn’t get to walk in

the room to see them. * * * I was told you’re not allowed in the room yet is

the only thing I had.

{¶ 16} The following exchange occurred regarding Case No. 2016 CR 0074:

Q. You also claimed that you had no idea that the 2016 case was

being plead at that time, as well; did I understand that correctly?

A. That is correct.

Q. You’ve no recollection of that indictment being read to you in

open court.

A. No, I was totally distraught and I do not remember that. I was

shocked when it was mentioned by Officer Brandon (sic) over at the Reibold

Building. * * *

Q. Do you remember this judge asking you what your plea was on

that case?

A. I thought, every time this court case is called like this, they

always mention the other number. * * * Both of the cases are usually called -22-

together.

Q. So if I understand you correctly, the first time you realized you

had plead in the 2016 case was when you met with the pre-sentence

investigation officer?

{¶ 17} At the conclusion of MacConnell’s testimony, the State called John Leahy

to testify. He stated that the plea offer herein from the State was for MacConnell to enter

pleas of guilty to theft in 2015 CR 3268 and to one count of telecommunications fraud in

2016 CR 0074, in exchange for the dismissal of the second count of telecommunications

fraud, and that he informed MacConnell of the offer multiple times. Leahy stated that

voir dire did not occur herein. Leahy stated that he never told MacConnell that questions

had been asked of the prospective jurors, or that MacConnell had to enter pleas of guilty.

Leahy testified that MacConnell told him that he wanted to plead guilty, and that he did

not force MacConnell to enter his pleas. He stated that he recalled the prosecutor

reading the counts in the indictments in both cases, and that Leahy pled guilty in both

cases and signed the plea forms. When asked if MacConnell had any questions during

the process, Leahy stated that MacConnell had a question regarding restitution because

“on the ’16 case there were two charges [and] you were dismissing one of those charges.

But we agreed that the restitution would still be paid on the case that was being dismissed

and that was specifically discussed between myself and Mr. MacConnell.” Leahy stated

that MacConnell responded in a manner that led him to believe that he understood what

transpired. When asked about MacConnell’s demeanor in the courtroom, Leahy -23-

responded that “he tends to get a little fidgety so that’s the adjective I would use, fidgety.”

When asked if MacConnell appeared to be panicked, Leahy responded that “[o]nce he

came to the conclusion that he was going to plead guilty, he seemed relieved.” Leahy

stated that he went over the plea forms with MacConnell.

{¶ 18} The following exchange occurred on cross examination:

Q. * * * You represented Mr. MacConnell in this case. * * *

A. On both cases.

Q. * * * And today you’re here on behalf of the State? The

prosecutor? You’re the State’s witness, you’re not my witness.

MS. EGAN: Objection, Your Honor. He was never subpoenaed.

THE COURT: * * * I think the characterization he’s the State’s

witness may go a little too far but he was called in the State’s case, so. If

that’s what you’re talking about, I will allow it.

Q. How did you get along with Mr. MacConnell?

A. Fine.

Q. You heard Mr. MacConnell testify that it wasn’t the best of

relationships? You’ve had other clients.

A. I can’t say it was any different than any other relationship I’ve

had.

{¶ 19} On September 28, 2016, the court in Case No. 2015 CR 3268 issued an -24-

“Entry and Order Overruling Defendant’s Motion to Withdraw Plea.” The court noted that

although the withdrawal of the plea would result in some hardship for the State to secure

witnesses to testify in additional proceedings, “the prejudice does not rise to a level that

would require the denial of Defendant’s Motion to Withdraw.” The court concluded that

MacConnell’s assertion that Leahy informed him that the jury had been selected and

accordingly advised him to enter his pleas “lacks merit.” The court noted “that voir dire

never took place in this matter, so it would not have been possible for Defendant to have

missed any part of the jury selection process. Although the jury pool had entered the

courtroom at the time Defendant entered his plea, no potential juror had been questioned

by either party, and no jurors had been selected to hear this case.” The court further

noted that “Mr. Leahy appeared extremely competent to represent Defendant in this

matter, and informed the Court that he was prepared to proceed with the trial, if

necessary.” The court found MacConnell’s “assertion that he lacked adequate

representation to be unpersuasive. The Court specifically inquired as to whether

Defendant was satisfied with Mr. Leahy’s representation, and Defendant affirmatively

replied.”

{¶ 20} The court further indicated that it “has conducted an extensive review of

Defendant’s plea hearing on August 22, 2016,” and it concluded that MacConnell

“understood the nature of the charges and penalties that he was facing, prior to entering

his plea, as well as the entirety of the State’s plea offer.” The court noted that throughout

the plea hearing, it “verified numerous times that Defendant understood what was

explained to him. Specifically, after explaining each charge and the possible prison

terms, the Court inquired as to Defendant’s understanding of each count. The Defendant -25-

answered affirmatively to all questions regarding his understanding of the charges, and

never indicated otherwise.” The court noted that it “verified that Defendant was entering

his guilty pleas voluntarily.” According to the court, MacConnell understood that “by

entering his guilty pleas, the Court would enter judgment against him and continue to

sentencing,” and that MacConnell “was afforded a full and extensive hearing in

accordance with Crim.R. 11.”

{¶ 21} The court further found that MacConnell was afforded a full hearing on his

motion to withdraw his pleas, noting that he “was afforded the opportunity to explain the

reasoning” for his motion. The court further noted that MacConnell was able to cross-

examine Leahy. The court found that the timing of MacConnell’s motion to withdraw his

pleas was reasonable. Regarding the reasons for the motion to withdraw, the court

noted that “voir dire never took place in this matter, and it would have been impossible

for Defendant to have been prevented from participating in a process that did not occur.”

The court noted that MacConnell testified “that no one ever told him that the jurors had

been questioned, or selected, outside of his presence. Rather Defendant admitted that

he assumed that jurors had been selected simply because the prospective jury pool had

been allowed to enter the courtroom.”

{¶ 22} According to the court, “because Defendant did not miss the voir dire

proceedings, he cannot now credibly assert that he only entered his pleas because he

was afraid to go forward in front of an unknown jury. Moreover, the Court finds that

Defendant never raised any concerns or asked any questions about voir dire during his

plea hearing.” The court found that although MacConnell testified that he was distraught

at the plea hearing, “he never appeared to be distressed and did not seem to have any -26-

hesitation or confusion about entering the plea agreement.” The court further found that

MacConnell “never gave any indication that the details of the plea agreement were

unclear, or that he was agreeing to enter guilty pleas out of fear. In fact, when the Court

asked Defendant if he had been coerced in any way, Defendant answered very clearly

that he had not.”

{¶ 23} According to the court, “contrary to Defendant’s assertion that he was

unaware that his plea agreement included the charges in Case No. 2016 CR 0074, the

State and the Court very clearly explained that the plea agreement included both cases

against Defendant. Moreover, Defendant admitted that both cases against him were

usually called together during the Court’s docket.” The court noted that it “confirmed

Defendant’s desire to give up his rights and enter his guilty pleas, and Defendant informed

the Court that he did not have any questions about any part of the proceedings.”

{¶ 24} Finally, the court noted that MacConnell “pleaded guilty to the charges in

this case and, when specifically asked by the Court if the allegations against him were

true, Defendant answered in the affirmative. Further, Defendant failed to present any

evidence or testimony that would demonstrate a complete defense to the charges to

which he pleaded guilty.”

{¶ 25} On October 12, 2016, MacConnell filed a “Motion for Stay of Execution

Pending Appeal,” in Case No. 2015 CR 3268, and on the same day he filed his Notices

of Appeal. On November 28, 2016, he filed a “Motion for Judicial Release” in Case No.

2016 CR 0074.

{¶ 26} On October 14, 2016, MacConnell filed a “Motion for Clarification” in Case

No. 2016 CR 0074. The motion provides as follows: -27-

Defendant timely filed a Notice of Appeal in both cases. Upon

inspection, the Second District Court of Appeals noted that the docket in

Case No. 2015CR03268 evidenced that the motion to withdraw the guilty

plea was overruled by this Court. The Second District also noted that the

docket in Case No. 2016CR00074 did not indicate that the motion to

withdraw the defendant’s guilty plea had been overruled. * * * Thus it is

unclear whether the defendant’s motion to withdraw his guilty plea in Case

No. 2016CR00074 was overruled or remains pending. * * *

Defendant filed a motion for a limited remand to assure that this

Court has jurisdiction to address this issue. The Second District granted

the motion on December 7, 2016. * * *

Defendant respectfully asks that this Court clarify its ruling on his

motion to withdraw his guilty plea in Case No. 2016CR00074 and that this

Court’s decision be entered upon the docket in this matter.

{¶ 27} On December 20, 2016, the trial court issued an “Amended Decision

Overruling Defendant’s Motion to Withdraw Plea,” in Case No. 2016 CR 0074, in which it

indicated that it “only included Case No. 2015 CR 3268 in the caption of the entry and

order due to a clerical error.” The court indicated that its decision overruling

MacConnell’s motion “clearly applied to both Case No. 2015 CR 03268 and Case No.

2016 CR 00074. Both Case No. 2015 CR 03268 and Case No. 2016 CR 00074 were

called by Kim Melnick1, counsel for the State of Ohio, in the case identification before oral

arguments * * *, evidence was clearly received in both case numbers,” and the

1 As noted above, Attorney Colleen Egan represented the State herein. -28-

subsequent ruling applied to both case numbers. The court incorporated its Entry

overruling MacConnell’s motion to withdraw “in its entirely as if reprinted herein, for Case

No. 2016 CR 00074.” On December 27, 2016, MacConnell filed an “Amended Notive of

Appeal” for the 2016 matter.

{¶ 28} MacConnell asserts two assignments of error herein. His first assigned

error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION TO THE

DETRIMENT OF THE DEFENDANT-APPELLANT WHEN IT, IN

PRINCIPLE, DENIED HIS RIGHT TO RETAIN ALTERNATE COUNSEL.

{¶ 29} According to MacConnell, the “trial court’s suggestion that MacConnell was

free to retain private counsel is illusory. While, in theory, it was possible for MacConnell

to retain private counsel, in reality it was not. Few, if any attorneys would be willing to

accept a case that required that they proceed to trial three days later or, in practice, the

next business morning.” MacConnell asserts that the “trial court abused its discretion by

refusing to provide sufficient time for private counsel to prepare for trial in a manner

consistent with the quality of legal representation expected of attorneys in the State of

Ohio.”

{¶ 30} As noted above, MacConnell filed, on August 12, 2016 and August 18,

2016, motions asking the court to appoint new counsel to replace Leahy. There is

nothing in the record suggesting that MacConnell requested a continuance in order to

retain counsel, and the court concluded that Leahy was competent and prepared for trial.

Furthermore, MacConnell did not bring up the issue of retaining counsel until 10 days

before the scheduled trial date on indictments which had been pending for five to six -29-

months. Most significantly, “[i]n general, a guilty plea waives all claims of error preceding

the plea except claims of ineffective assistance of counsel sufficient to cause the

defendant’s guilty plea to be less than knowing and voluntary. State v. Kidd, 2d Dist. Clark

No. 03CA43, 2004-Ohio-6784, ¶ 16.” State v. Guerry, 2d Dist. Clark No. 2015-CA-30,

2016-Ohio-962, ¶ 6. Any argument that the trial court denied MacConnell his “right to

retain alternate counsel” is not only not supported by the record, but it is waived, and

MacConnell’s first assignment of error is overruled.

{¶ 31} MacConnell’s second assignment of error is as follows:

DETRIMENT OF THE DEFENDANT-APPELLANT WHEN IT REFUSED

TO GRANT THE MOTION TO WITHDRAW THE GUILTY PLEAS WHERE

IT WAS PATENTLY APPARENT THAT THE DEFENDANT’S

ALLEGATION REGARDING HIS INABILITY TO EFFECTIVELY

COMMUNICATE WITH TRIAL COUNSEL WAS TRUE.

{¶ 32} MacConnell asserts that the trial court erred in refusing to grant his motion

to withdraw his pleas after he “indicated that attorney client communications were

irretrievably broken” and that Leahy “verified the movant’s contention either through

explicit admission or through action from which one could rationally imply a breakdown of

the attorney client relationship.” According to MacConnell, the “trial court had notice that

MacConnell and his court appointed attorney were unable to work together.”

MacConnell asserts that Leahy’s willingness to testify “without being subpoenaed raised

the specter of possible collusion,” and “Leahy’s willingness to testify in favor of the

prosecution clarified and strengthened MacConnell’s previous assertions that the -30-

attorney client relationship was irretrievably broken.”

{¶ 33} Crim.R. 32.1 provides: “A motion to withdraw a plea of guilty or no contest

may be made only before sentence is imposed; but to correct a manifest injustice the

court after sentence may set aside the judgment of conviction and permit the defendant

to withdraw his or her plea.” As this Court has previously noted:

* * * Under the foregoing rule, a pre-sentence motion to vacate a

guilty plea “should be freely and liberally granted.” State v. Xie, 62 Ohio

St.3d 521, 527, 584 N.E.2d 715 (1992). Nevertheless, even under the pre-

sentence standard, the right to withdraw a plea is not absolute and a trial

court retains discretion to overrule a pre-sentence plea-withdrawal motion.

Id. The pre-sentence standard, however, is far more lenient than the

“manifest injustice” standard applicable to post-sentence motions. State v.

Fugate, 2d Dist. Montgomery No. 21574, 2007-Ohio-26, ¶ 10.

But even under the more lenient pre-sentence standard, “a

defendant must show a reasonable and legitimate basis for the withdrawal

of the plea.” * * * “A change of heart is not enough,” and a trial court’s finding

regarding a defendant’s true motivation is entitled to deference. * * *

Likewise, a trial court’s ultimate decision to grant or deny a pre-sentence

motion to withdraw a guilty plea is subject to review for an abuse of

discretion. Fugate, at ¶ 10.

State v. DeJesus, 2d Dist. Greene No. 2015-CA-4, 2015-Ohio-4111, ¶ 16, quoting State

v. Simpson, 2d Dist. Montgomery No. 24266, 2011-Ohio-6181, ¶ 7, 10. -31-

{¶ 34} As this Court has noted:

An abuse of discretion implies that the trial court's attitude was

unreasonable, arbitrary, or unconscionable. (Citation omitted.) AAAA

Enterprises, Inc. v. River Place Community Urban Redevelopment

Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “It is to be expected

that most instances of abuse of discretion will result in decisions that are

simply unreasonable, rather than decisions that are unconscionable or

arbitrary.” Id. “A decision is unreasonable if there is no sound reasoning

process that would support that decision.” Id.

State v. Rush, 2d Dist. Greene No. 2015-CA-54, 2016-Ohio-4895, ¶ 8.

{¶ 35} As this Court has further noted:

A trial court does not abuse its discretion denying a motion to

withdraw a plea when: “ ‘(1) the accused is represented by competent

counsel; (2) the accused was afforded a full Crim.R. 11 hearing before he

entered his plea; (3) the accused is given a complete, impartial hearing on

the motion to withdraw; and (4) the court gave full and fair consideration to

the request to withdraw.’ ” [State v.] Berry, 2d Dist. Greene No. 2013-CA-

34, 2014-Ohio-132 at ¶ 33, quoting State v. Hess, 2d Dist. Montgomery No.

24453, 2012-Ohio-961, ¶ 18. (Other citation omitted.)

Furthermore, the following additional factors may also influence the

court’s analysis: “ ‘(5) whether the motion was made within a reasonable

time, (6) whether the motion sets out specific reasons for the withdrawal,

(7) whether the accused understood the nature of the charges and possible -32-

penalties, and (8) whether the accused was perhaps not guilty or had a

complete defense to the charge or charges.’ ” Berry at ¶ 36, quoting State

v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist. 1995). This

list is not exhaustive. Id.

State v. Spurgeon, 2d Dist. Greene No. 2014-CA-12, 2014-Ohio-4849, ¶ 15-16.

{¶ 36} Based upon the record before us, we cannot conclude that the trial court

abused its discretion in denying MacConnell’s motion to withdraw his plea. We initially

note that “in Ohio, a properly licensed attorney is presumed competent. * * *.” State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. We have no basis

to conclude that MacConnell was not represented by competent counsel. While

MacConnell indicated that he asked Leahy to file “other motions,” he does not identify

them, and Leahy filed “Defendant’s Motion for Valuation Expert” on August 12, 2016, and

a “Motion for Disclosure of Brady Material” on August 19, 2016 in the theft case. The

court noted in its August 19, 2016 Decision overruling MacConnell’s motion to replace

Leahy, that on August 17, 2016, Leahy indicated to the court that he was prepared for

trial and able to represent MacConnell. The court further noted that Leahy did not

indicate that the attorney-client relationship was broken. Leahy testified at the hearing on

the motion to withdraw that he and MacConnell got along, and MacConnell indicated at

the plea hearing that he had the opportunity to discuss the elements of his offenses, any

defenses he may have had, and any motions he could file with Leahy. MacConnell

specifically indicated that he was satisfied with Leahy’s representation. Leahy’s

testimony is completely consistent with the transcript of the plea hearing as to the contents

of the plea agreement, and that he communicated the offer to MacConnell, that he did not -33-

force him to plead guilty, that the charges were read to MacConnell from the indictments

in both cases, and that MacConnell pled guilty and signed the plea forms that Leahy went

over with him. Leahy’s assertion that voir dire did not occur is consistent with the trial

court’s finding, and we see no basis to conclude that Leahy’s testimony in the absence of

a subpoena “raises the specter of possible collusion.”

{¶ 37} We further find that MacConnell received a full Crim.R. 11 hearing prior to

entering his pleas. Crim. R. 11 provides in relevant part:

(2) In felony cases the court may refuse to accept a plea of guilty or

a plea of no contest, and shall not accept a plea of guilty or no contest

without first addressing the defendant personally and doing all of the

following:

(a) Determining that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty

involved, and if applicable, that the defendant is not eligible for probation or

for the imposition of community control sanctions at the sentencing hearing.

(b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the court,

upon acceptance of the plea, may proceed with judgment and sentence.

(c) 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 -34-

defendant cannot be compelled to testify against himself or herself.

{¶ 38} The transcript of the plea hearing reflects that MacConnell indicated in

response to the court’s questions that his pleas were voluntary, that he understood the

nature of the charges and penalties, and that he was eligible for community control

sanctions. The court further informed MacConnell that a guilty plea is a complete

admission of guilt, and that upon acceptance the court would proceed to judgment and

schedule sentencing. Finally, the record reflects that the court advised MacConnell of

each of his constitutional rights as set forth in Crim.R.11.

{¶ 39} The record further reflects that the court provided a complete and impartial

hearing on the motion to withdraw and gave the full and fair consideration to the request

to withdraw. MacConnell testified on his own behalf, and he was able to explain the

basis for his request to withdraw his plea, namely that he was not present at voir dire,

which caused him to be fearful, and that he believed that both telecommunications fraud

charges would be dropped in exchange for his plea to the theft offense, both of which

assertions are belied by the record. Finally, MacConnell was able to cross examine

Leahy.

{¶ 40} We agree with the court that MacConnell’s motion was made within a

reasonable time, and that it set out specific (but unfounded) reasons for the withdrawal.

MacConnell indicated that he understood the nature of the charges and possible penalties

by signing the plea forms. Finally, we conclude that the trial court had no basis to find

that MacConnell was perhaps in fact not guilty or had a complete defense to the charges.

Since an abuse of discretion is not demonstrated, MacConnell’s second assignment of

error is overruled. The judgment of the trial court is accordingly affirmed. -35-

TUCKER, J., concurs.

FROELICH, J., concurring:

{¶ 41} I concur and write separately only to comment on the suggestion in

Appellant’s reply brief that Appellant’s trial attorney was “clearly . . . ignoring the

requirements of R.C. 2317.02, . . .” by testifying at the hearing on the motion to withdraw

the pleas.

{¶ 42} In Ohio, the attorney-client privilege is governed both by statute, R.C.

2317.02(A), which provides a testimonial privilege, and by common law, which broadly

protects against any dissemination of information obtained in the confidential attorney-

client relationship. State ex rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port Auth., 121

Ohio St.3d 537, 2009-Ohio-1767, 905 N.E.2d 1221, ¶ 24.

{¶ 43} However, R.C. 2317.02(A)(1) provides that a client waives any testimonial

privilege by voluntarily revealing the substance of attorney-client communications.

“Clearly,” Appellant’s testimony at the hearing revealed the substance of conversations

between him and his trial attorney. At no time in his testimony at the hearing on the

motion to withdraw the plea did the trial attorney discuss anything about what the

defendant may have told him about the facts of the case or his guilt or innocence; rather

all the questions and answers dealt with conversations about the decision to plead guilty

– the exact subject and conversations about which Appellant testified at the hearing.

{¶ 44} Furthermore, the attorney would be permitted to testify under the principles

behind the so-called self-protection exception. See, e.g., the discussion in State v.

Montgomery, 2013-Ohio-4193, 997 N.E.2d 579 (8th Dist.), of R.C. 2317.02(A), -36-

Prof.Cond.R. 1.6, Formal Opinions of the ABA, and Ethics Opinions from other states;

compare State v. Howard, 2d Dist. Montgomery No. 8001, 1984 WL 5414 (Jan. 5, 1984).

{¶ 45} Moreover, after filing a motion arguing that “communications between the

defendant and his assorted attorneys were confused” and stating what “the defendant’s

attorney simply told” him, and testifying extensively at the hearing about conversations

between him and his trial attorney, Appellant never objected to his trial attorney’s being

called as a witness or to any of the trial attorney’s testimony.

{¶ 46} Even if there had been an objection, it would not be sustained. In State v.

Houck, 2d Dist. Miami No. 09-CA-08, 2010-Ohio-743, the Appellant filed a motion to

withdraw her plea and objected when the State called her trial attorney to testify.

Here, [Appellant] unequivocally waived the confidential, privileged

nature of her communication with [her trial attorney] concerning whether

she should plead guilty to the charged offense, when she testified

concerning the communication, including what [her trial attorney] had

advised her. She may not publish to the world her attorney’s advice to her

and expect that it will thereafter remain privileged.

A ruling to the contrary would permit anyone, in either criminal or civil

litigation, to claim with impunity that she was acting on advice of counsel,

without permitting her former counsel to be asked, by adverse parties,

whether that was, in fact, counsel’s advice. The attorney-client privilege is

a shield, to protect the confidentiality of a client’s consultation with her

attorney, not a sword to facilitate perjury concerning the substance of

counsel’s advice.” -37-

Id. at ¶s 37, 38.

{¶ 47} Any hint in the Appellant’s briefs that the trial attorney violated his legal

and/or ethical duties by testifying at Appellant’s motion to withdraw his plea is totally

unfounded on this record.

.........

Copies mailed to:

Andrew T. French John K. Limoli Hon. Dennis J. Adkins