State v. Ortega

2017 Ohio 239

• Court: Ohio Court of Appeals
• Decided: January 23, 2017
• Docket: 5-16-17
• Status: Published

Opinion

[Cite as State v. Ortega, 2017-Ohio-239.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

STATE OF OHIO, CASE NO. 5-16-17 PLAINTIFF-APPELLEE,

v.

RAMON ORTEGA, IV, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court Trial Court No. 2012-CR-09

Judgment Affirmed

Date of Decision: January 23, 2017

APPEARANCES:

Jeffrey M. Brandt for Appellant

Alex K. Treece for Appellee Case No. 5-16-17

WILLAMOWSKI, J.

{¶1} Defendant-appellant Ramon Ortega IV (“Ortega”) appeals the

judgment of the Court of Common Pleas of Hancock County for allegedly denying

his request for new counsel. For the reasons set forth below, the judgment of the

lower court is affirmed.

{¶2} In 2011, the Hancock County prosecutor commenced a criminal

proceeding against Ortega in case 2011-CR-217. Doc. 62 at 3. On January 10,

2012, the Hancock County Grand Jury returned an indictment against Ortega in case

2012-CR-9 that charged Ortega with two counts of trafficking in cocaine in

violation of R.C. 2925.03(A), one count of aggravated burglary in violation of R.C.

2911.11(A)(1), one count of felonious assault in violation of R.C. 2903.11(A)(1),

and one count of tampering with evidence in violation of R.C. 2921.12(A)(1). Doc.

1 and Doc. 3. Ortega retained Scott Ramsey (“Ramsey”) as defense counsel and

pled not guilty to the charges against him. Doc. 62 at 3-6. On July 2, 2012, the

trial court had two trials scheduled. Id. The first trial was set to hear case 2011-

CR-217 in which Ortega was the sole defendant. Id. at 3.1 Brandy Cook (“Cook”)

was the defendant in the second trial, which dealt with a matter related to Ortega’s

1 Of the two cases involving Ortega, only case 2011-CR-217 was scheduled for July 2, 2012. Case 2012- CR-9 was to take place at a later time.

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2011-CR-217 case. Id. Cook was on Ortega’s witness list for the first trial, and

Ortega was on Cook’s witness list for the second trial. Id. at 5.

{¶3} On the morning of Ortega’s trial for case 2011-CR-217, Ramsey

explained to Ortega the terms of a plea agreement that would resolve both of the

cases in which Ortega was a defendant. Id. at 5. After Ramsey explained his

recommendation, Ortega declared that he disagreed with Ramsey and wanted new

counsel. Id. Ortega first informed the court that he wanted new counsel at the

beginning of his trial for case 2011-CR-217. Id. at 5. When asked why he wanted

new counsel, Ortega stated, “I don’t like what he’s recommending me to do. We’re

not seeing eye to eye.” Id. at 7. Ortega also said, “I don’t feel comfortable…going

forward.” Id. at 9.

{¶4} The court noted that Ramsey was Ortega’s second attorney, that Ortega

was requesting to discharge Ramsey on the morning of the trial after having him as

an attorney for six months, and that Ortega requested new counsel because Ortega

disagreed with Ramsey’s advice on the issue of accepting a plea agreement. Tr. 10-

11. Based on these observations, the trial court judge indicated an initial

disinclination to grant Ortega’s request, saying,

I still haven’t heard a reason and I’m not going to grant your request. You have two choices today. You can either go to trial with Mr. Ramsey or I may excuse him then you’d be representing yourself today. So those are the choices you’re going to have. Do you want to talk to Mr. Ramsey before you elect?

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Tr. 11-12. Ortega decided to discuss his options with Ramsey before making his

final decision, but before Ortega could confer with counsel, Ramsey requested to

address the court. Advocating for Ortega’s motion, Ramsey stated, “I do believe

that Mr. Ortega may have lost trust in his counsel.” Tr. 13.

{¶5} In response to Ramsey’s statements, the court explained to Ortega that

Ramsey had a responsibility to recommend a course of action regarding this plea

agreement given that Ortega faced thirty-nine to forty-one years in prison if this case

went to trial and Ortega was found guilty. Id. at 14-16. The court then asked the

prosecution what the terms of the plea agreement were for the record. Id. at 14. In

the course of stating the terms of the plea agreement, the prosecutor mentioned that

the State was willing to dismiss the two counts of drug trafficking against Ortega.

Id.

{¶6} Upon hearing the terms of the plea agreement, Ortega stated, “I wasn’t

aware of the dismissing of the trafficking, though. I didn’t know that.” Id. at 16.

The court then asked Ortega, “Is that something you want to talk to your attorney

about?” Id. To which Ortega replied, “Yeah.” Id. Before ordering a recess, the

court discussed how the disposition of Ortega’s motion for new counsel would

affect Cook’s case. Since Ortega was one of Cook’s witnesses, Ortega could

possibly be unrepresented at the time of Cook’s trial if he chose to discharge

Ramsey. Id. at 17. The court explained that this could be a problem for him, saying

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“If your case is still pending and they’re connected, for example, you would want

to talk to an attorney before you would decide whether you were going to testify.”

Tr. 18. At this time, the court even explored rescheduling the Cook case to “give

Mr. Ortega several days to find someone he could confer with.” Id. at 19. The court

then ordered a recess to give Ortega the opportunity to confer with Ramsey. Id. at

20.

{¶7} After the recess, the court said, “Mr. Ramsey, I’ve been advised Mr.

Ortega at this point does not wish to discharge you and does wish to proceed to a

plea, is that correct?” Ramsey replied, “That’s correct.” Ortega then accepted the

plea agreement offered to him by the prosecution. Id. at 21-22. In the course of the

subsequent questioning, Ortega stated that he had enough time to think about this

plea and that no one forced him into accepting this agreement. Id. at 30. Ortega

also stated on two occasions that that he was satisfied with the advice of his counsel

on these matters. Id. at 34, 58. The court then sentenced Ortega on December 10,

2012. Doc. 68. Having been granted a delayed appeal, Ortega now raises one

assignment of error.

The trial court erred by responding to a request from both Ortega and defense counsel for dismissal of counsel on the grounds that Ortega did not trust counsel, and by denying the motion and forcing Ortega to remain tethered to counsel or represent himself, leading to denial of Ortega’s constitutional rights to counsel and/or choice of counsel.

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{¶8} The Sixth Amendment to the United States Constitution guarantees

criminal defendants the right to the effective assistance of counsel. Gideon v.

Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). “[T]he essential

aim of the [Sixth] Amendment is to guarantee an effective advocate for each

criminal defendant rather than to ensure that a defendant will inexorably be

represented by the lawyer whom he prefers.” Wheat v. United States, 486 U.S. 153,

159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Thus, while the defendant who can

afford to retain counsel has the right to their choice of counsel, this right is limited.

United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d

409 (2006). State v. Crew, 8th Dist. Cuyahoga No. 86943, 2006-Ohio-4102, ¶ 15.

{¶9} The right to choice of counsel does not take precedence over “the

court’s authority to control its docket.” Id. at ¶ 15, citing United States v. Krzyske,

836 F.2d 1013, 1016-1017 (6th Cir. 1988). “Attorneys cannot be shed at every stage

of the proceeding so as to impede [the] orderly administration” of the case. State v.

Ranes, 3d Dist. Putnam No. 12-15-03, 2016-Ohio-448, ¶ 8, quoting State v.

Marinchek, 9 Ohio App.3d 22, 23–24, 457 N.E.2d 1198 (9th Dist.1983). Thus, “the

trial court must balance the defendant’s preference as to his counsel’s choice against

‘the court’s interest in the integrity of the proceedings and the public’s interest in

the proper administration of justice.’” Ranes at ¶ 8, quoting United States v. Mays,

69 F.3d 116, 121 (6th Cir.1995). Courts may also consider the timeliness of the

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motion and whether the issues between the attorney and the defendant led to a “total

lack of communication preventing an adequate defense.” State v. Nicholson, 8th

Dist. Cuyahoga No. 89245, 2007-Ohio-6653, ¶ 13.

{¶10} An appellate court is to review a trial court’s orders regarding the

discharge or withdrawal of a criminal defense attorney under an abuse of discretion

standard. State v. Hart, 6th Dist. Lucas No. L-03-1073, 2004-Ohio-5511, ¶ 14.

State v. Harmon, 4th Dist. Pickaway No. 04CA22, 2005-Ohio-1974, ¶ 35. “The

term ‘abuse of discretion’ connotes more than an error of law or of judgment; it

implies that the court's attitude is unreasonable, arbitrary or unconscionable.” State

v. Kennan, 81 Ohio St.3d 133, 137, 689 N.E.2d 929 (1998), quoting State v. Adams,

62 Ohio St.2d 151, 157, 404 N.E.2d 144, 149 (1980).

{¶11} In the present case, Ortega argues that the trial court erred by denying

his request for new counsel. The record indicates otherwise. After Ortega made his

initial argument before the court, the trial judge presented Ortega with two options:

he could proceed with Ramsey as counsel or he could proceed pro se. See Nicholson

at ¶ 15 (holding that the trial court’s decision to deny defendant’s motion for new

counsel was not an abuse of discretion as the defendant did not submit the motion

until the day of the trial). The court presented Ortega with these two choices because

the trial judge indicated that he had not, up to that point, heard a reason to grant

Ortega’s motion. After Ramsey advocated for Ortega’s motion, however, the court

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began discussing the different courses of action available to Ortega going forward.

In this discussion, the trial judge enunciated options besides the choice between

proceeding pro se or with Ramsey as counsel.

{¶12} The court implied that it was willing to postpone Ortega’s case when

it stated, “If Ms. Cook’s case goes, you could be called as a witness. If your case is

still pending and they’re connected, for example, you would want to talk to an

attorney.” Doc. 65 at 18. Since the current case—2011-CR-217—was the trial

related to the Cook case, the judge was speaking of accommodating Ortega by

possibly delaying his trial if Ortega decided to discharge Ramsey. Further, the trial

judge even considered adjusting the timing of the Cook case to work with Ortega’s

request for new counsel, saying, “If need be we could break early and then [have]

Mr. Smith [Cook’s attorney] present tomorrow and make sure Mr. Ortega talks to

someone before he gets called.” Id. at 19. The court then said this arrangement

“would give Mr. Ortega several days to find someone he could confer with.” Id.

The court gave multiple options to Ortega if he chose to discharge Ramsey.

{¶13} As the prosecutor described the plea agreement during these

discussions, Ortega indicated that he was not aware of all of the terms of the State’s

offer. Id. at 16. Ortega then chose to confer with Ramsey on the plea agreement

over which he had previously wanted to discharge Ramsey for recommending. The

court recessed to give Ortega the opportunity to confer with Ramsey and was only

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going to determine the issue of Ortega’s representation at trial after Ortega decided

whether he wanted to have a trial. Id. at 17-18. Thus, the two options before Ortega

were not whether to proceed pro se or with Ramsey as counsel but whether to

proceed to trial or to accept the plea agreement. If he chose to proceed to trial and

discharge Ramsey, he would only then have the opportunity to work through the

options the trial court had outlined for Ortega to seek new counsel.

{¶14} During the recess, Ortega apparently determined his interests were

best served by accepting the plea agreement. In so doing, Ortega chose not to go to

trial, making the issue of which counsel to retain for the trial irrelevant. By opting

for the plea agreement, Ortega effectively withdrew his request for new counsel

before the court had the opportunity to issue a final order on this matter. “The term

discretion itself involves the idea of choice, of an exercise of the will, of a

determination made between competing considerations.” Nicholson supra at ¶ 10.

Thus, Ortega’s allegations do not identify an abuse of discretion on the part of the

trial court because an abuse of discretion, in this matter, would have required an

exercise of discretion. Here, Ortega—not the trial court—determined the fate of his

motion. We cannot review a ruling that was not made. Ortega made his choice and

must live with its consequences. He cannot use this appeal to explore a path he

chose not to take.

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{¶15} Even if the trial court erred, it was invited error. “Under the doctrine

of invited error, a party cannot take advantage of an error the party invited or

induced.” State v. Torrence, 5th Dist. Stark No. 2003CA00115, 2003-Ohio-4188,

citing State ex rel. Soukup v. Celebrezze, 83 Ohio St.3d 549, 550, 700 N.E.2d 1278

(1998). Since Ortega chose not to proceed to trial and did not give the trial court

the opportunity to rule on his motion, he is here complaining of his own decision.

For these reasons, Ortega’s sole assignment of error is overruled.

{¶16} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Court of Common Pleas of Hancock

County is affirmed.

PRESTON, P.J. and SHAW, J., concur.

/hls

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