[Cite as State v. Sizler, 2020-Ohio-4423.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2019-L-075 - vs - :
MICHAEL D. SIZLER, :
Defendant-Appellant. :
Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2018 CR 000761.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor and Jennifer A. McGee, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, Ohio 44077 (For Plaintiff-Appellee).
Hector G. Martinez, Jr., and Leslie S. Johns, 4230 State Route 306, Suite 240, Willoughby, Ohio 44094 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Michael D. Sizler, appeals his conviction arguing he was denied
effective assistance of counsel and trial counsel of choice. We affirm.
{¶2} Appellant was convicted of felonious assault, a second-degree felony under
R.C. 2903.11(A)(1), following a jury trial.
{¶3} Emily Barber and Daniel Hibbs were getting married in July of 2017. Barber
invited her friends, Rachael Parry and Teresa Gregori. Appellant, who was dating Gregori, accompanied her to the wedding. Gregori drove all three to the wedding and
reception.
{¶4} During the four hours between the wedding and reception, Gregori,
appellant, and Parry went to a local restaurant and had a few drinks and appetizers. Upon
arriving at the reception, appellant and Parry drank more. According to various witnesses,
appellant was heavily intoxicated by the end of the reception at 11:00 p.m.
{¶5} As the evening progressed, appellant was primarily talking with a group of
men at an adjacent table. Feeling slighted, Gregori ignored appellant, and as the
reception was ending, Gregori decided to leave the banquet hall without telling appellant.
{¶6} At approximately the same time Gregori and Parry were leaving, appellant
was involved in two separate physical altercations with Garrett Hass, a cousin of the
groom. The first altercation occurred when Hass saw one of his female cousins having a
heated argument with appellant. Hass walked over to his cousin’s table, grabbed
appellant by the collar of his shirt, pushed him away, and forced him into a wall. Hass
ripped the back of appellant’s shirt. After releasing his grip on appellant, Hass told him
to leave the reception.
{¶7} The second altercation occurred as appellant was leaving the hall. Again,
observing him from a short distance, Hass saw appellant exchanging heated words with
Hass’s father. When appellant appeared to be lunging toward his father, Hass stepped
between them and pulled appellant away from his father. As appellant was turning toward
Hass, he swung his arms and hit Hass in the nose. In response, Hass hit appellant on
the head, causing him to fall to the floor. At that point, Hass’s brother assisted him and
pinned appellant to the floor with his knee.
2 {¶8} Once appellant calmed down, the Hass brothers allowed him to stand up.
The groom’s mother then convinced appellant to leave. A few individuals escorted him
out because he was still being verbally abusive.
{¶9} After appellant walked into the parking lot, another altercation occurred
during which he pushed Rachael Parry face-first onto the pavement causing her to sustain
serious physical harm to her head and knees.
{¶10} According to appellant and Gregori, as appellant exited the building, Gregori
and Parry were standing near Gregori’s car, facing the hall’s front doors. Before appellant
could reach the first row of vehicles, he was surrounded by a group of men who pushed
him to the ground and began punching and kicking him. This attack was so fierce that
appellant momentarily lost consciousness, and after the attack ended, appellant stood up
and staggered toward the vehicles while keeping his eyes on his attackers. As appellant
was looking back at the entrance, Parry walked up behind him and touched him on the
shoulder, and without looking back to see who it was, appellant immediately turned and
pushed Parry with both hands, as if trying to protect himself.
{¶11} During their investigation, the police found three witnesses who gave
conflicting statements. According to these witnesses, appellant was not attacked by any
one after he exited the banquet hall. Instead, he walked by himself into the parking lot,
went into the first row of cars facing the building, and then circled around the back end of
a vehicle so that he was facing the front door. Parry and Gregori were standing near the
front of that vehicle, also looking back at the hall’s front door with appellant now behind
both Parry and Gregori. Appellant then rushed toward the front of the vehicle and pushed
Parry in the back with both hands. Parry’s head momentarily snapped backward before
3 she fell forward. Her head and knees hit the pavement first.
{¶12} Someone inside had already contacted the police, and two patrolmen
arrived within moments after Parry was injured. They arrested appellant for assault.
Parry was taken to multiple local hospitals and treated for a subdural hematoma. In
addition to suffering headaches months after the incident, she sustained permanent nerve
damage above her right eye.
{¶13} Although his trial was initially scheduled to go forward in October 2018, the
trial court granted a continuance when appellant fired his first attorney. A new trial date
was set for November 2018 after appellant hired Attorney Weatherly to represent him.
That trial date was also continued so appellant could consider a plea offer.
{¶14} Trial was rescheduled for February 19, 2019. Attorney Weatherly’s motion
to continue trial was denied. At a pretrial hearing on February 13, 2019, appellant advised
the court that he wanted to terminate Attorney Weatherly; that he had already taken steps
to hire new counsel; and that he had just become aware of five new possible witnesses.
Regarding the request to replace counsel, the court held that appellant could go forward
with new counsel if his new attorney was ready to proceed on the scheduled date. As to
the five new witnesses, the court ordered him to provide their names to the state by the
end of that day, but he never did.
{¶15} Two days after the pretrial, appellant entered a guilty plea to attempted
felonious assault. The trial court accepted the guilty plea and scheduled sentencing.
However, on that date, the court granted appellant’s motion to withdraw the guilty plea
and rescheduled the trial for June 25, 2019.
{¶16} Three weeks later, Attorney Weatherly moved to withdraw, claiming
4 appellant again discharged him and was in the process of hiring new counsel. On April
30, 2019, the court rendered an order conditionally granting the motion to withdraw
provided appellant’s new attorney appeared and was ready to proceed with the scheduled
trial. The order further indicated that if new counsel were not prepared to go forward on
June 25, 2019, Attorney Weatherly would remain as trial counsel.
{¶17} On May 30, 2019, two attorneys filed their notice of appearance, stating that
they had recently been retained. Four days later, they moved to continue the trial arguing
they needed additional time to prepare. The trial court overruled the motion, holding that
appellant had been given sufficient time to hire new counsel to go forward with trial as
scheduled. As a result, the two new attorneys withdrew. Attorney Weatherly again moved
to withdraw on the basis that he was not prepared, and the court also overruled that
motion.
{¶18} Appellant’s trial was held June 25, 2019, as scheduled. Appellant was
represented by Weatherly throughout, and appellant testified on his own behalf. Attorney
Weatherly argued that appellant acted in self-defense when he pushed Parry. The jury
found appellant guilty of felonious assault, and he was sentenced to four years in prison.
{¶19} Appellant asserts two assignments for review:
{¶20} “[1.] The trial court erred when it denied defense counsel’s motions to
withdraw as counsel of record.
{¶21} “[2.] Appellant was denied effective assistance of counsel in violation of the
Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio
Constitution.”
{¶22} Under his first assignment, appellant asserts that his constitutional right to
5 counsel of choice was violated when the trial court refused to permit Attorney Weatherly
to withdraw and did not grant a continuance to enable his new attorneys time to prepare
for trial. Appellant contends that in weighing the relevant factors the court placed too
much emphasis on the status of its docket. He also argues that the court failed to give
proper weight to his statements regarding his dissatisfaction with Attorney Weatherly’s
trial preparation.
{¶23} The Sixth Amendment right to counsel includes counsel of choice when a
criminal defendant does not require appointed counsel. United States v. Gonzalez-
Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). When this right is
violated, no additional showing of prejudice is required to be entitled to a new trial. Id. at
148. However, the right to counsel of choice is not absolute. State v. Goodman, 11th
Dist. Trumbull No. 2006-T-0130, 2007-Ohio-6252, ¶ 30. A trial court has wide latitude in
balancing the right to counsel of choice against the needs of fairness and the demands
of its calendar. Gonzalez-Lopez, at 32. To this extent, a defendant is not permitted to
exercise this right in a way that interferes with the orderly administration of justice.
Goodman, at ¶ 30.
{¶24} The determination of a motion to substitute counsel lies within a trial court’s
sound discretion and will not be reversed in the absence of abuse. Goodman, at ¶ 29.
Abuse of discretion lies when the ruling does not comport with the record or reason. Id.
at ¶ 24.
{¶25} “Factors to consider in deciding whether a trial court erred in denying a
defendant’s motion to substitute counsel include ‘the timeliness of the motion; the
adequacy of the court’s inquiry into the defendant’s complaint; and whether the conflict
6 between the attorney and client was so great that it resulted in a total lack of
communication preventing an adequate defense.’ United States v. Jennings, (C.A.6,
1996), 83 F.3d 145, 148.” State v. Jones, 91 Ohio St.3d 335, 342, 744 N.E. 2d 1163
(2001).
{¶26} As to timeliness, appellant urges that Attorney Weatherly filed his first
motion to withdraw as trial counsel April 22, 2019, approximately two months prior to the
scheduled trial date of June 25, 2019. However, appellant fails to acknowledge that this
motion was conditionally granted. On April 30, 2019, the trial court permitted appellant to
hire substitute trial counsel, as long as new counsel was prepared to proceed with trial.
As a result, the court gave appellant approximately fifty days to hire substitute counsel.
{¶27} As part of his April 22, 2019 motion to withdraw, Attorney Weatherly states
that appellant already retained new counsel. Yet, no new notice of appearance was filed
with the trial court until May 31. In addition, appellant’s substitute counsel then moved
for a continuance, three weeks before the scheduled trial date.
{¶28} During the June 2019 hearing on the motion to continue, appellant
explained the delay in the appearance of new counsel. He informed the trial court that
as of April 20, 2019, he thought he had retained an attorney to represent him, but that
attorney’s representation was contingent on obtaining a continuance in a different case.
Appellant told the court that this prospective attorney told appellant that he could not
represent him because his other case was going forward as scheduled. Appellant’s new
attorneys were then hired one week later.
{¶29} The April 30, 2019 judgment grants appellant’s request to hire substitute
counsel if new counsel could proceed on the scheduled trial date. Thus, appellant was
7 fully aware of the time limitations. Notwithstanding, appellant waited approximately four
weeks for an attorney to inform him that he could not take his case. Accordingly,
appellant’s failure to timely hire substitute counsel was a result of his own actions.
{¶30} Attorney Weatherly’s second motion to withdraw was filed June 18, 2019,
only seven days prior to the scheduled trial date. Given that the case had been pending
for approximately eleven months and that appellant had been afforded time to hire
substitute counsel, this motion was overruled.
{¶31} Appellant also asserts the trial court did not give proper weight to his
complaints about Attorney Weatherly’s performance because it was too concerned about
the status of its docket. However, the orderly administration of justice is a proper factor
for a trial court to consider in determining whether a defendant should be afforded
additional time to hire substitute counsel.
{¶32} Moreover, the record does not support appellant’s contention that the trial
court gave too much weight to this factor. Prior to February 2019, appellant had already
been granted two continuances after trial was set. In addition, after the trial court denied
his request to continue the trial scheduled February 19, 2019, appellant again delayed
the trial by entering a guilty plea, which he withdrew approximately forty days later.
{¶33} As stated, appellant maintained that Attorney Weatherly had not adequately
investigated the case during the five-month period before entering his guilty plea in
February 2019. There is nothing in the record to support this allegation. As the trial court
aptly noted, Attorney Weatherly hired a private investigator to look into the case in
October 2018. Furthermore, although appellant alleged at the February 13, 2019 hearing
that he had recently learned the names of five new potential witnesses, he did not confirm
8 this allegation as required.
{¶34} As noted, appellant first asserted the issue of his dissatisfaction with
Attorney Weatherly on February 13, 2019. Two days later, he pled guilty to the lesser
charge of attempted felonious assault. During the change-of-plea hearing, appellant
confirmed that he was satisfied with Attorney Weatherly’s representation. Thus, the court
found that his asserted dissatisfaction was a ploy to delay his trial. And given the lack of
specificity in appellant’s complaint about Weatherly’s performance, the degree of the trial
court’s inquiry into the complaint was adequate.
{¶35} Last, as to the lack of communication, the record establishes that although
appellant told the trial court on at least two occasions that he was dissatisfied with
Attorney Weatherly’s trial preparation, appellant did not give any indication that the
attorney-client relationship had deteriorated to the point that they could no longer
communicate. Similarly, there is nothing establishing that they were unable to discuss
strategy during the trial.
{¶36} As to this factor, appellant emphasizes that in moving to withdraw from the
case immediately prior to trial, Attorney Weatherly admitted he had not prepared for trial
since the trial court’s April 30, 2019 conditional order. However, this does not establish
that Attorney Weatherly was not already prepared to try the case in February 2019 or that
new facts were discovered warranting further preparation. Moreover, Attorney
Weatherly’s performance at trial demonstrates that he was fully aware of the underlying
facts and was able to provide effective representation.
{¶37} In light of the foregoing, each of the three Jones factors supports the
conclusion that the trial court did not abuse its discretion in overruling Attorney
9 Weatherly’s second motion to withdraw as trial counsel. Further, given the timing of
appellant’s complaints as to the quality of Weatherly’s representation and the lack of any
specificity, the trial court’s finding that appellant was seeking to delay the trial, thereby
interfering with the orderly administration of justice is supported. Hence, appellant’s right
to counsel of choice was not violated. The trial court’s findings consistently afforded
appellant counsel of choice provided counsel was ready to proceed. The first assignment
lacks merit.
{¶38} Under his second assignment, appellant argues that he is entitled to a new
trial because Attorney Weatherly’ performance was ineffective in four respects.
{¶39} To reverse a conviction for ineffective assistance of counsel, the defendant
must prove “(1) that counsel's performance fell below an objective standard of
reasonableness, and (2) that counsel's deficient performance prejudiced the defendant
resulting in an unreliable or fundamentally unfair outcome of the proceeding.” State v.
Madrigal, 87 Ohio St.3d 378, 388-389, 721 N.E.2d 52 (2000), Citing Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show prejudice
from counsel's deficient performance, “the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the result of the trial would
have been different.” State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989);
State v. Fortune, 2015-Ohio-4019, 42 N.E.3d 1224, ¶ 26 (11th Dist.).
{¶40} Appellant’s first ineffective assistance argument claims his attorney was
deficient based on his failure to object to hearsay testimony. During the testimony of
Brennan Hass, Garrett Hass’s brother, he testified about the events he saw before the
physical altercation between appellant and Garrett. The second altercation took place
10 after appellant was involved in a heated conversation with their father. Brennan testified
that he heard his father tell appellant that he was no longer welcomed at the reception
and “‘[y]ou can’t go home with your date.’”
{¶41} Appellant contends that counsel’s failure to object was prejudicial because
it undermined his assertion that he was acting in self-defense when he pushed Parry.
However, Gregori was appellant’s date not Parry. This testimony, despite argument to
the contrary, does not raise an inference that the appellant harbored animosity toward
Parry, and does not undermine appellant’s defense that he mistook Parry as being part
of the group that had just assaulted him. Thus, the lack of objection did not affect the
outcome of the trial.
{¶42} During Parry’s testimony, she twice relayed hospital personnel statements
regarding the nature of her injuries. However, this information was in Parry’s hospital
records admitted at trial. Because Parry’s testimony was repetitive of other evidence, the
failure to object was not prejudicial.
{¶43} Under his second ineffective assistance argument, appellant argues that
trial counsel acted deficiently by failing to subpoena EMS and hospital personnel who
cared for Parry. Other evidence presented by the state established that while receiving
treatment, Parry made statements about how she was injured that tended to support
appellant’s version of the incident. Appellant contends that these other witnesses could
have elaborated on Parry’s statements.
{¶44} The record contains no indication as to what the substance of the EMS and
hospital personnel’s testimony would have been if they had been called to testify. To this
extent, appellant’s argument is based on speculation and is insufficient to show that the
11 outcome of the trial would have been different. State v. Kovacic, 2012-Ohio-219, 969
N.E.2d 322, ¶ 51 (11th Dist.). His second argument fails.
{¶45} Under his next argument, appellant maintains that he was denied effective
assistance when trial counsel failed to object to the court’s questioning of witnesses in
front of the jury. Appellant argues the nature of the court’s questions to Christina Hibbs
and Teresa Gregori showed the court was attempting to elicit answers beneficial to the
state and that the court was biased.
{¶46} At the conclusion of each witness’s testimony, the trial court asked the
members of the jury to submit any questions they had for that witness. Upon reviewing
the submissions to determine propriety, the trial court posed the questions to the witness
on behalf of the jurors.
{¶47} The questions appellant challenges were submitted by the jury and merely
asked by the court. Appellant has failed to show the questions asked were inappropriate
or that the court improperly allowed the questions. This argument therefore fails.
{¶48} Under his final ineffective assistance argument, appellant contends that
instead of arguing self-defense, his counsel should have asserted that Parry’s injuries
were the result of an accident. In support, appellant relies on the trial court’s discussion
with the attorneys concerning possible jury instructions, and the court’s concern as to
whether a self-defense instruction was warranted. However, by the end of the discussion,
the trial court was satisfied that a self-defense instruction was justified.
{¶49} Moreover, appellant’s testimony did not support that he accidentally collided
with Parry. Instead, he said that he had already broken free from his attackers and was
moving away from them when he felt a bump on his back. He thought that someone else
12 was attacking him from behind, so he turned without looking and pushed Parry. If
believed, this testimony supports a finding that appellant purposely pushed her to protect
himself. Hence, the appropriate defense to assert was self-defense.
{¶50} Thus, appellant was not denied effective assistance of trial counsel, and his
second assignment lacks merit.
{¶51} The judgment of the Lake County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MARY JANE TRAPP, J.,
concur.