[Cite as State v. Sims, 2018-Ohio-388.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105581
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JONATHAN SIMS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-609408-A
BEFORE: E.T. Gallagher, P.J., Stewart, J., and Blackmon, J.
RELEASED AND JOURNALIZED: February 1, 2018 ATTORNEY FOR APPELLANT
Ruth R. Fischbein-Cohen 3552 Severn Rd., #613 Cleveland, Ohio 44118
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor
BY: Owen M. Patton Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, P.J.:
{¶1} Defendant-appellant, Jonathan Sims, appeals from his conviction following a
guilty plea. He raises the following assignments of error for review:
1. The identification of defendant should have been suppressed.
2. It was error to convict defendant for possession of a firearm.
3. The finding of guilt was against the manifest weight of the evidence and absent sufficient evidence.
4. The court erred in overruling defendant’s motion for new counsel.
{¶2} After careful review of the record and relevant case law, we affirm Sims’s
convictions.
I. Procedural History
{¶3} In September 2016, Sims was named in a three-count indictment, charging
him with aggravated robbery in violation of R.C. 2911.01(A)(1); robbery in violation of
R.C. 2911.02(A)(2); and kidnapping in violation of R.C. 2905.01(A)(2). Each count
contained firearm specifications.
{¶4} The indictment stemmed from allegations that Sims stole a vehicle owned by
the victim, D.G., after Sims forcefully removed D.G. from the vehicle while in possession
of a firearm. Several days after the incident, D.G. contacted the police after he spotted
his vehicle parked in a nearby driveway. When the police arrived at the scene, Sims was
getting out of the passenger’s seat of the vehicle. Sims was arrested after D.G. identified
Sims as the individual who stole his vehicle. {¶5} In October 2016, Sims filed a motion to suppress “the cold-stand
identification of [Sims] by [D.G.] and all subsequent identifications.” Following a
suppression hearing, the trial court denied Sims’s motion to suppress.
{¶6} In January 2017, Sims pleaded guilty to robbery in violation of R.C.
2911.02(A)(2), with a one-year firearm specification. The remaining counts were nolled.
Following a Crim.R. 11 colloquy, the trial court accepted Sims’s guilty plea and referred
him to the county probation department for a presentence investigation report (“PSI”).
{¶7} Prior to sentencing, Sims filed a pro se motion to withdraw his plea and a pro
se “notice of termination of representation of counsel.” During a comprehensive hearing
on the motions, Sims argued that he wished to withdraw his plea and terminate counsel
because he was dissatisfied with counsel’s representation during the suppression hearing.
Sims further indicated that he believed counsel rendered ineffective assistance of
counsel by failing to file several pretrial motions Sims had asked counsel to file on his
behalf.
{¶8} At the conclusion of the hearing, the trial court denied Sims’s motions. The
trial court stated that it reviewed the transcript of Sims’s Crim.R. 11 plea colloquy and
confirmed that Sims was advised of all constitutional and nonconstitutional rights, and
stated on the record that he was satisfied with counsel’s representation.
{¶9} In February 2017, Sims was sentenced to a four-year term of imprisonment.
{¶10} Sims now appeals from his conviction.
II. Law and Analysis A. Implications of Guilty Plea
{¶11} In his first assignment of error, Sims argues the trial court erred by denying
his motion to suppress identification evidence. In his second assignment of error, Sims
argues it was error to convict him for possession of a firearm. In his third assignment of
error, Sims argues his robbery conviction is against the manifest weight of the evidence
and is not supported by sufficient evidence. We address these assigned errors together
for judicial clarity.
{¶12} “A plea of guilty is a complete admission of the defendant’s guilt.” Crim.R.
11(B)(1). A defendant who enters a plea of guilty waives the right to appeal all
nonjurisdictional issues arising at prior stages of the proceedings, although the defendant
may contest the constitutionality of the plea itself. State v. Darling, 8th Dist. Cuyahoga
No. 104517, 2017-Ohio-7603, ¶ 12, citing State v. Lewis, 8th Dist. Cuyahoga No. 102939,
2015-Ohio-5267, ¶ 16. Thus, by entering into a guilty plea, a defendant waives the right
to raise on appeal the propriety of a trial court’s suppression ruling. State v. Elliott, 8th
Dist. Cuyahoga No. 102226, 2015-Ohio-3766, ¶ 15; State v. Bogan, 8th Dist. Cuyahoga
No. 84468, 2005-Ohio-3412, ¶ 14; State v. Prieto, 7th Dist. Mahoning No. 15 MA 0213,
2017-Ohio-4156, ¶ 10 (“a guilty plea waives any right to appeal a ruling on a motion to
suppress or any other trial court error, except for errors in the plea itself.”). In addition,
“a guilty plea waives a defendant’s right to challenge the sufficiency or manifest weight
of the evidence.” State v. Hill, 8th Dist. Cuyahoga No. 90513, 2008-Ohio-4857, ¶ 6;
State v. Moree, 8th Dist. Cuyahoga No. 90894, 2009-Ohio-472, ¶ 16. {¶13} In this case, Sims’s arguments concerning the motion to suppress and the
evidence supporting his conviction do not relate to the constitutionality of the plea itself,
nor do they challenge the adequacy of the trial court’s Crim.R. 11 colloquy.
Accordingly, we find Sims has waived his right to assert these issues on appeal.
{¶14} Sims’s first, second, and third assignments of error are overruled.
B. Motion to Terminate Counsel
{¶15} In his fourth assignment of error, Sims argues the trial court erred by
denying his motion to terminate counsel. Arguably, Sims has waived his right to
challenge the trial court’s judgment because his motion to terminate counsel relied
exclusively on allegations of ineffective assistance of counsel that occurred prior to the
entry of his guilty plea. On appeal, Sims reiterates his displeasure with counsel’s
performance during the pretrial process. However, he does not challenge the validity of
his plea or otherwise claim that counsel’s performance caused his guilty plea to be less
than knowing, intelligent, and voluntary. See Darling at ¶ 14.
{¶16} Nevertheless, even if Sims has not waived his right to challenge the court’s
denial of his motion to terminate counsel, we find the trial court did not abuse its
discretion by denying the motion.
{¶17} Although an indigent defendant has the right to the appointment of counsel,
he has no right to have a particular attorney represent him and must demonstrate “good
cause” in order for the substitution of counsel to be warranted. State v. Williams, 99
Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446, ¶ 55; State v. Cowans, 87 Ohio St.3d 68, 72, 717 N.E.2d 298 (1999). Three recognized examples of “good cause” that would
warrant the discharge of court-appointed counsel include (1) a conflict of interest, (2) a
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[Cite as State v. Sims, 2018-Ohio-388.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 105581
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JONATHAN SIMS DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-609408-A
BEFORE: E.T. Gallagher, P.J., Stewart, J., and Blackmon, J.
RELEASED AND JOURNALIZED: February 1, 2018 ATTORNEY FOR APPELLANT
Ruth R. Fischbein-Cohen 3552 Severn Rd., #613 Cleveland, Ohio 44118
ATTORNEYS FOR APPELLEE
Michael C. O’Malley Cuyahoga County Prosecutor
BY: Owen M. Patton Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, P.J.:
{¶1} Defendant-appellant, Jonathan Sims, appeals from his conviction following a
guilty plea. He raises the following assignments of error for review:
1. The identification of defendant should have been suppressed.
2. It was error to convict defendant for possession of a firearm.
3. The finding of guilt was against the manifest weight of the evidence and absent sufficient evidence.
4. The court erred in overruling defendant’s motion for new counsel.
{¶2} After careful review of the record and relevant case law, we affirm Sims’s
convictions.
I. Procedural History
{¶3} In September 2016, Sims was named in a three-count indictment, charging
him with aggravated robbery in violation of R.C. 2911.01(A)(1); robbery in violation of
R.C. 2911.02(A)(2); and kidnapping in violation of R.C. 2905.01(A)(2). Each count
contained firearm specifications.
{¶4} The indictment stemmed from allegations that Sims stole a vehicle owned by
the victim, D.G., after Sims forcefully removed D.G. from the vehicle while in possession
of a firearm. Several days after the incident, D.G. contacted the police after he spotted
his vehicle parked in a nearby driveway. When the police arrived at the scene, Sims was
getting out of the passenger’s seat of the vehicle. Sims was arrested after D.G. identified
Sims as the individual who stole his vehicle. {¶5} In October 2016, Sims filed a motion to suppress “the cold-stand
identification of [Sims] by [D.G.] and all subsequent identifications.” Following a
suppression hearing, the trial court denied Sims’s motion to suppress.
{¶6} In January 2017, Sims pleaded guilty to robbery in violation of R.C.
2911.02(A)(2), with a one-year firearm specification. The remaining counts were nolled.
Following a Crim.R. 11 colloquy, the trial court accepted Sims’s guilty plea and referred
him to the county probation department for a presentence investigation report (“PSI”).
{¶7} Prior to sentencing, Sims filed a pro se motion to withdraw his plea and a pro
se “notice of termination of representation of counsel.” During a comprehensive hearing
on the motions, Sims argued that he wished to withdraw his plea and terminate counsel
because he was dissatisfied with counsel’s representation during the suppression hearing.
Sims further indicated that he believed counsel rendered ineffective assistance of
counsel by failing to file several pretrial motions Sims had asked counsel to file on his
behalf.
{¶8} At the conclusion of the hearing, the trial court denied Sims’s motions. The
trial court stated that it reviewed the transcript of Sims’s Crim.R. 11 plea colloquy and
confirmed that Sims was advised of all constitutional and nonconstitutional rights, and
stated on the record that he was satisfied with counsel’s representation.
{¶9} In February 2017, Sims was sentenced to a four-year term of imprisonment.
{¶10} Sims now appeals from his conviction.
II. Law and Analysis A. Implications of Guilty Plea
{¶11} In his first assignment of error, Sims argues the trial court erred by denying
his motion to suppress identification evidence. In his second assignment of error, Sims
argues it was error to convict him for possession of a firearm. In his third assignment of
error, Sims argues his robbery conviction is against the manifest weight of the evidence
and is not supported by sufficient evidence. We address these assigned errors together
for judicial clarity.
{¶12} “A plea of guilty is a complete admission of the defendant’s guilt.” Crim.R.
11(B)(1). A defendant who enters a plea of guilty waives the right to appeal all
nonjurisdictional issues arising at prior stages of the proceedings, although the defendant
may contest the constitutionality of the plea itself. State v. Darling, 8th Dist. Cuyahoga
No. 104517, 2017-Ohio-7603, ¶ 12, citing State v. Lewis, 8th Dist. Cuyahoga No. 102939,
2015-Ohio-5267, ¶ 16. Thus, by entering into a guilty plea, a defendant waives the right
to raise on appeal the propriety of a trial court’s suppression ruling. State v. Elliott, 8th
Dist. Cuyahoga No. 102226, 2015-Ohio-3766, ¶ 15; State v. Bogan, 8th Dist. Cuyahoga
No. 84468, 2005-Ohio-3412, ¶ 14; State v. Prieto, 7th Dist. Mahoning No. 15 MA 0213,
2017-Ohio-4156, ¶ 10 (“a guilty plea waives any right to appeal a ruling on a motion to
suppress or any other trial court error, except for errors in the plea itself.”). In addition,
“a guilty plea waives a defendant’s right to challenge the sufficiency or manifest weight
of the evidence.” State v. Hill, 8th Dist. Cuyahoga No. 90513, 2008-Ohio-4857, ¶ 6;
State v. Moree, 8th Dist. Cuyahoga No. 90894, 2009-Ohio-472, ¶ 16. {¶13} In this case, Sims’s arguments concerning the motion to suppress and the
evidence supporting his conviction do not relate to the constitutionality of the plea itself,
nor do they challenge the adequacy of the trial court’s Crim.R. 11 colloquy.
Accordingly, we find Sims has waived his right to assert these issues on appeal.
{¶14} Sims’s first, second, and third assignments of error are overruled.
B. Motion to Terminate Counsel
{¶15} In his fourth assignment of error, Sims argues the trial court erred by
denying his motion to terminate counsel. Arguably, Sims has waived his right to
challenge the trial court’s judgment because his motion to terminate counsel relied
exclusively on allegations of ineffective assistance of counsel that occurred prior to the
entry of his guilty plea. On appeal, Sims reiterates his displeasure with counsel’s
performance during the pretrial process. However, he does not challenge the validity of
his plea or otherwise claim that counsel’s performance caused his guilty plea to be less
than knowing, intelligent, and voluntary. See Darling at ¶ 14.
{¶16} Nevertheless, even if Sims has not waived his right to challenge the court’s
denial of his motion to terminate counsel, we find the trial court did not abuse its
discretion by denying the motion.
{¶17} Although an indigent defendant has the right to the appointment of counsel,
he has no right to have a particular attorney represent him and must demonstrate “good
cause” in order for the substitution of counsel to be warranted. State v. Williams, 99
Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446, ¶ 55; State v. Cowans, 87 Ohio St.3d 68, 72, 717 N.E.2d 298 (1999). Three recognized examples of “good cause” that would
warrant the discharge of court-appointed counsel include (1) a conflict of interest, (2) a
complete breakdown of communication, and (3) an irreconcilable conflict that could
cause an apparently unjust result. State v. Burrell, 11th Dist. Lake No. 2013-L-024,
2014-Ohio-1356, ¶ 24. Before an indigent defendant is entitled to discharge
court-appointed counsel, he must show “a breakdown in the attorney-client relationship of
such magnitude as to jeopardize the defendant’s right to effective assistance of counsel.”
State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988), paragraph four of the
syllabus. A trial court’s denial of a motion to substitute counsel is reviewed for an abuse
of discretion. Cowans at 73.
{¶18} On appeal, Sims argues the trial court abused its discretion by denying his
request to terminate counsel because “he clearly expressed to the trial court that his
relationship with his counsel was irreparably damaged.” Sims contends that counsel
“never did a thing to assist him,” and that there was a “complete breakdown” in
attorney-client communication such that there was good cause for the termination of
counsel. We disagree.
{¶19} As stated, Sims argued that he wished to terminate counsel because he was
dissatisfied with counsel’s representation during the suppression hearing. He further
claimed that counsel failed to file several motions Sims had asked counsel to file on his
behalf. {¶20} After careful consideration, we do not find that Sims’s vague claims
demonstrated a “complete breakdown” in communication that jeopardized Sims’s right to
the effective assistance of counsel. As noted by the trial court, the transcript of the plea
colloquy reflects that Sims had time to speak with his attorney before entering his plea
and was satisfied with counsel’s representation. In addition, our review of the record
supports the determination that Sims received effective assistance of counsel during the
plea and suppression hearings. Counsel actively filed motions on Sims’s behalf, and
contrary to Sims’s belief, had no obligation to file motions that would have been futile.
{¶21} From this record, it is evident that Sims’s motion to terminate counsel was
not motivated by a total breakdown in communication. Rather, the motion appears to
have been motivated by (1) Sims’s displeasure with counsel’s strategy during the
suppression hearing, and (2) Sims’s change of heart following his guilty plea. Sims,
however, had “‘no constitutional right to determine strategy, and decisions about viable
defenses are ‘within the exclusive province of defense counsel to make after consultation
with his client.’” State v. Wade, 8th Dist. Cuyahoga No. 90145, 2008-Ohio-4870, ¶ 10,
quoting State v. Murphy, 91 Ohio St.3d 516, 524, 747 N.E.2d 765 (2001). Moreover,
even if Sims did not get along well with counsel, a lack of rapport is not sufficient to
constitute a total breakdown when it does not inhibit the attorney from both preparing and
presenting a competent defense. State v. Lewis, 11th Dist. Lake No. 2012-L-074,
2013-Ohio-3974, ¶ 48. {¶22} Having failed to demonstrate good cause to warrant the termination of
counsel, we find the trial court did not abuse its discretion by denying Sims’s motion.
{¶23} Sims’s fourth assignment of error is overruled.
{¶24} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
MELODY J. STEWART, J., and PATRICIA ANN BLACKMON, J., CONCUR