[Cite as State v. Tingler, 2022-Ohio-3792.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 21CA3962
v. :
ROBERT S. TINGLER, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Gene Meadows, Portsmouth, Ohio, for appellant1.
Shane Tieman, Scioto County Prosecuting Attorney, and Jay S. Willis, Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee. ___________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:10-19-22 ABELE, J.
{¶1} This is an appeal from a Scioto County Common Pleas Court
judgment of conviction and sentence. After Robert S. Tingler,
defendant below and appellant herein, pleaded guilty to possession
of cocaine and tampering with evidence, the trial court sentenced
him to serve 30 months in prison.
1 Different counsel represented appellant during the trial court proceedings. 2 SCIOTO, 21CA3962
{¶2} Appellant assigns two errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE DEFENDANT-APPELLANT WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO COUNSEL OF CHOICE WHEN THE TRIAL COURT ARBITRARILY REFUSED TO PERMIT THE DEFENDANT-APPELLANT TO RETAIN COUNSEL OF HIS CHOICE.”
SECOND ASSIGNMENT OF ERROR:
“THE DEFENDANT-APPELLANT WAS DENIED HIS SIXTH AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DUE TO A CONFLICT OF INTEREST OF APPOINTED COUNSEL.”
{¶3} In May 2016, a Scioto County Grand Jury returned an
indictment that charged appellant with (1) possession of cocaine in
violation of R.C. 2925.11(A), a fifth-degree felony, (2) possession
of heroin in violation of R.C. 2925.11(A), a fourth-degree felony,
and (3) tampering with evidence in violation of R.C. 2921.12(A)(1),
a third-degree felony. At appellant’s December 10, 2020 video
arraignment2, appellant entered a not guilty plea and the trial
court appointed counsel.
{¶4} At the June 22, 2021 pretrial hearing, the trial court
noted that it had received appellant’s handwritten letter, dated
June 1, 2021, that requested substitution of counsel. The court
2 According to appellant’s brief, it appears that the delay between indictment and arraignment is due to appellant’s incarceration for previous offenses committed in Franklin County. 3 SCIOTO, 21CA3962
asked, “[s]ince that time that you’ve written me that letter have
you had an opportunity to meet with [appointed counsel] and discuss
your case?” Appellant stated, “Yes, I have.” When asked, “[h]ave
you worked through those issues about your satisfaction with your
counsel,” appellant replied, “[y]es, Your Honor. At this time, you
know, the - - for the interest of the Court, just move it along. I
would like to withdraw that motion.”
{¶5} Subsequently, appellant rejected the state’s plea offer
and, on August 2, 2021, the parties appeared for jury trial. That
morning, with the jury waiting to be seated, appellant informed the
trial court that he wished to raise several issues, including: (1)
the state failed to serve him with a copy of the indictment, (2)
defects exist in the indictment, (3) counsel should have filed a
motion to dismiss based on speedy trial violation, (4) counsel
should have filed a motion to suppress evidence, and (5) appellant
did not receive discovery until 48 hours before trial.
{¶6} At that point, the court served appellant with another
copy of the indictment, informed appellant it found no defects in
the indictment, and observed that the speedy trial deadline had not
yet expired. Trial counsel also informed the court that he did not
file a motion to suppress evidence because it would have been
frivolous, that appellant received discovery “when he first came 4 SCIOTO, 21CA3962
down here from prison,” and what appellant received 48 hours before
is the “exact same thing as his discovery. So, he’s got to review
the exact same thing.” Counsel further stated that he had
difficulty convincing appellant to review a video of appellant and
his co-defendant, but eventually, counsel “made him watch it.”
{¶7} Although appellant stated he “had issues with this
attorney from the very beginning,” the trial court noted that it
had previously addressed this issue. Appellant then stated that he
did not hear from his attorney since his December arraignment and
he wanted a new attorney. When asked if he hired a new attorney,
appellant replied he had not. Appellant further stated that he
instructed counsel to file a motion to withdraw as counsel. The
court, however, noted, “If you’ve not hired one to be here today
I’m going to find that that’s not timely and we’re going to bring
the jury in and start the trial here in about five minutes.”
{¶8} At that juncture, appellant decided to become enraged and
curse at the trial court. Ultimately, the bailiff and a deputy
sheriff threatened appellant with a taser and restrained him. The
court described the situation:
Mr. Tingler appeared here without restraints per - - I believe pursuant to a previous order of this Court, even though he’s currently incarcerated on other charges in the Department of Corrections. During that he became dissatisfied with the Courts rulings, dissatisfied with his counsel. I’d indicated to him that we would be 5 SCIOTO, 21CA3962
proceeding with the trial here today. During that time he jumped up from his chair, slung the Defense counsels papers across the courtroom, began pacing back and forth. The Bailiff had to pull a taser to get him to sit back down in his chair, which took some time. He’s now been restrained. Based on the Defendants conduct here in the court I’m going to find that he poses a danger to the court participants and to the jury if he’d remain unrestrained during the trial, and I’m going to order that he be restrained during the trial.
Now, Mr. Tingler, I’ll tell you right now we’re not going to put up with that conduct in front of the jury. If you do that again, or if you act out, you interrupt these court proceedings I will remove you from the courtroom and we’ll proceed with this trial without you present.
When the court asked appellant if he understood the situation,
appellant did not answer. A few minutes later, appellant’s counsel
advised the court that appellant asked him to withdraw from the
case. However, after the court denied the motion and during the
recess, appellant composed himself and discussed a proposed plea
agreement with counsel and for an 18 month concurrent sentence.
The court stated, “I’d indicated in chambers that at this point I’m
not going to agree to any sentence bargaining.” After another
recess, appellant decided to plead guilty to counts one and three.
{¶9} At the change of plea hearing, the trial court advised
appellant of his constitutional rights, reviewed postrelease
control and the maximum penalties. Appellant then pleaded guilty
to (1) possession of cocaine in violation of R.C. 2925.11(A), a 6 SCIOTO, 21CA3962
fourth-degree felony, and (2) tampering with evidence in violation
of R.C. 2921.12(A)(1), a third-degree felony. At sentencing, the
court acknowledged appellant “did act out before the jury was
brought into the courtroom, but ultimately he complied with the
request of the Court staff and the deputies, so I’m not going to
hold that conduct against him for purposes of sentencing.”
Consequently, the court sentenced appellant to serve (1) six months
in prison for possession, and (2) 30 months in prison for
tampering, with the sentences to be served concurrently with each
other and consecutively to appellant’s current prison sentence.
Finally, the court ordered appellant to serve an optional three-
year postrelease control term. This appeal followed.
I.
{¶10} In his first assignment of error, appellant asserts that
the trial court denied him his Sixth Amendment right to counsel
when it refused to permit him “to retain counsel of his choice.”
{¶11} Initially, we point out that appellant entered guilty
pleas to the two offenses. Generally, a guilty plea waives all
appealable errors, including claims of ineffective assistance of
counsel, except to the extent that the alleged errors precluded
appellant from knowingly, intelligently and voluntarily entering
his guilty plea. State v. Colon, 8th Dist. No. 104944, 99 N.E.3d. 7 SCIOTO, 21CA3962
1197; State v. Geiga, 157 Ohio App.3d 112, 809 N.E.2d 673, 2004-
Ohio-2124. Although appellant in the case at bar expressed general
displeasure with trial counsel, appellant does not provide any
basis or reason for a claim that this guilty plea was less than
knowing, intelligent and voluntary. Nevertheless, in the interest
of justice we will review appellant’s assignments of error.
{¶12} The Sixth Amendment to the United States Constitution,
and Article I, Section 10 of the Ohio Constitution, provides that
defendants in all criminal proceedings shall have the assistance of
counsel for their defense. To establish constitutionally
ineffective assistance of counsel, a defendant must show that (1)
counsel rendered a deficient performance, and (2) the deficient
performance prejudiced the defense and deprived the defendant of a
fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, a
defendant must prove that counsel's performance fell below an
objective level of reasonable representation. State v. Conway, 109
Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95.
Additionally, a court need not analyze both Strickland test prongs
if it can resolve the claim under one prong. See State v.
Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000); State v.
Bowling, 4th Dist. Jackson No. 19CA2, 2020-Ohio-813, ¶ 12-13. 8 SCIOTO, 21CA3962
{¶13} When a court examines whether counsel's representation
amounts to deficient performance, “a court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.” Strickland at 689, 466 U.S.
668, 104 S.Ct. 2052. Moreover, because a properly licensed
attorney is presumed to execute all duties ethically and
competently, State v. Taylor, 4th Dist. Washington No. 07CA11,
2008-Ohio-482, ¶ 10, to establish ineffectiveness, a defendant must
demonstrate that counsel's errors were “so serious” that counsel
failed to function “as the ‘counsel’ guaranteed * * * by the Sixth
Amendment.” Strickland at 687, 466 U.S. 668, 104 S.Ct. 2052.
{¶14} The right to counsel “guarantees a defendant the right to
be represented by an otherwise qualified attorney whom that
defendant can afford to hire, or who is willing to represent the
defendant even though he is without funds.” Caplin & Drysdale,
Chartered v. United States, 491 U.S. 617, 624-25, 109 S.Ct. 2646,
105 L.Ed.2d 528 (1989). Moreover, “[a] criminal defendant who
desires and is financially able to retain his own counsel ‘should
be afforded a fair opportunity to secure counsel of his own
choice.’” Id., quoting Powell v. Alabama, 287 U.S. 45, 53, 53
S.Ct. 55, 77 L.Ed. 158 (1982); State v. Beem, 5th Dist. Licking No.
2019CA00062, 2020-Ohio-2964, ¶ 29. 9 SCIOTO, 21CA3962
{¶15} Appellant argues that the trial court deprived him of his
right to counsel when it refused to permit him to retain counsel of
his choice. We point out, however, that at any point in the
proceedings, from appellant’s arraignment to his change of plea,
appellant could have retained any counsel, at his expense. We find
nothing in the record to indicate in any manner that the trial
court prohibited or interfered with this endeavor. Thus, because
appellant did not attempt to retain counsel, the issue here appears
to be appellant’s desire to have the court replace his court
appointed counsel.
{¶16} “[W]hile the right to select and be represented by one's
preferred attorney is comprehended by the Sixth Amendment, the
essential aim of the Amendment is to guarantee an effective
advocate * * * 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, 1697, 100 L.Ed.2d
140, 148 (1988). Thus, “[a] defendant has only a presumptive right
to employ his own chosen counsel.” State v. Keenan, 81 Ohio St.3d
133, 137, 689 N.E.2d 929, 937 (1998).
{¶17} However, the right to counsel of choice “is not absolute
* * * and courts have ‘wide latitude in balancing the right to
counsel of choice against the needs of fairness and against the 10 SCIOTO, 21CA3962
demands of its calendar.’” State v. Oliver, 2018-Ohio-602, 106
N.E.3d 300, ¶ 5 (10th Dist.), quoting State v. Frazier, 8th Dist.
Cuyahoga No. 97178, 2012-Ohio-1198, ¶ 26, quoting United States v.
Gonzalez-Lopez, 548 U.S. 140, 152, 126 S.Ct. 2557, 165 L.Ed.2d 409
(2006). Thus, a trial court’s “difficult responsibility of
assembling witnesses, lawyers and jurors for trial ‘counsels
against continuances except for compelling reasons.’” State v.
Howard, 5th Dist. Stark No. 2012CA00061, 2013-Ohio-2884, ¶ 40,
quoting Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75
L.Ed.2d 610 (1983).
{¶18} 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 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, 83 F.3d 145, 148 (6th Cir.1996). In addition,
courts should “balanc[e] * * * the accused's right to counsel of
his choice and the public's interest in the prompt and efficient
administration of justice.” Id.; State v. Jones, 91 Ohio St.3d
335, 342-43, 744 N.E.2d 1163 (2001).
{¶19} Generally, a defendant bears the burden to demonstrate 11 SCIOTO, 21CA3962
that substitute counsel is warranted. State v. Carter, 128 Ohio
App.3d 419, 423, 715 N.E.2d 223 (4th Dist.1998). Once an indigent
defendant questions the adequacy of assigned counsel during trial,
a court must inquire into the complaint on the record. Id.
“Decisions relating to the substitution of counsel are within the
sound discretion of the trial court.” Jones, supra, at 343;
Frazier at ¶ 26, citing Wheat at 159. This court has held:
[A]n indigent defendant is entitled to new counsel ‘only upon a showing of good cause, such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust result.’ State v. Edsall (1996), 113 Ohio App.3d 337, 339, 680 N.E.2d 1256; see, also, State v. Blankenship (1995), 102 Ohio App.3d 534, 558, 657 N.E.2d 559; Pruitt, 18 Ohio App.3d at 57, 480 N.E.2d 499.
State v. Newland, 4th Dist. Ross No. 02CA2666, 2003-Ohio-3230, ¶
11.
{¶20} In addressing the factors courts use to determine whether
a trial court erred in denying a defendant’s motion to substitute
counsel, we first observe that appellant’s morning of trial request
for substitute counsel was not timely. Due to appellant’s
indigence, the trial court appointed counsel at appellant’s
December 14, 2020 arraignment. On June 10, 2021, appellant filed a
pro se motion to substitute counsel and asserted that, since his
arraignment, no communication occurred between appellant and 12 SCIOTO, 21CA3962
appointed counsel and that counsel “completely failed at his
constitutional obligation to represent [him] adequately and
effectively. Current counsel has been more of an asset to the
prosecution than to the defense, hereby making it impossible to
mount an adequate defense.” However, at the June 22, 2021 pretrial
hearing, appellant opted to withdraw his motion to substitute
counsel.
{¶21} Our review of the record reveals that appellant failed to
seek trial counsel substitution until the morning of his jury
trial, and this fact must weigh heavily against him. See State v.
Spencer, 10th Dist. Franklin No. 16AP-444, 2017-Ohio-1140, ¶ 9
(request for substitute counsel untimely on morning of trial);
State v. McCoy, 188 Ohio App.3d 152, 2010–Ohio–2639, 934 N.E.2d
971, ¶ 48 (2d Dist.)(suggestion of bad faith when motions to
substitute counsel made day of trial, particularly when trial date
set for some time).
{¶22} The second factor in the analysis is the adequacy of the
trial court’s inquiry into the defendant’s request. Here, at the
June 22, 2021 pretrial hearing, the trial court thoroughly inquired
about appellant’s motion to substitute counsel. When asked if he
had “worked through those issues about your satisfaction with your 13 SCIOTO, 21CA3962
counsel,” appellant replied, “[y]es, Your Honor. At this time, you
know, the - - for the interest of the Court, just move it along. I
{¶23} On the morning of the jury trial, appellant again raised
the issue and argued that counsel did not spend enough time with
him, did not file a motion to suppress evidence, did not file a
motion to dismiss based on a speedy trial violation, and did not
allow him to review discovery until 48 hours before trial.
Appellant further argued that he did not receive a copy of the
indictment and challenged the indictment as defective. However, as
we noted above, counsel informed the trial court that a motion to
suppress would have been frivolous, appellant received another copy
of the indictment, the court informed appellant that no defects
appear in the indictment and that no speedy trial violation had
occurred. Thus, after the trial court fully discussed this matter
with appellant on the record, the court gave appellant time to
compose himself and move forward.
{¶24} As detailed above, in the case sub judice the trial court
inquired about appellant’s concerns both at a pretrial hearing and
again when the parties appeared for jury trial. Thus, in view of
the fact the trial court adequately inquired about appellant’s
complaint and his request for substitute counsel, this factor 14 SCIOTO, 21CA3962
weighs against appellant.
{¶25} Another factor courts must consider when evaluating a
request for substitute counsel is whether an alleged conflict
between an attorney and client is so great that it results in a
total lack of communication and prevents an adequate defense.
Jennings, supra, 83 F.3d 145 at 148; see also State v. Cowans, 87
Ohio St.3d 68, 73, 717 N.E.2d 298 (1999); State v. Murphy, 91 Ohio
St.3d 516, 523, 747 N.E.2d 765 (2001). However, whether counsel is
court-appointed or privately retained, the Sixth Amendment
guarantees competent representation but “does not include the right
to develop and share a ‘meaningful attorney-client relationship”
with one’s attorney. State v. Gordon, 149 Ohio App.3d 237, 2002-
Ohio-2761, ¶ 12 (1st Dist.). Moreover, “[h]ostility, tension, or
personal conflicts between an attorney and a client that do not
interfere with the preparation or presentation of a competent
defense are insufficient to justify a change in appointed counsel.”
Newland, supra, 2003-Ohio-3230, at ¶ 11, citing State v. Henness,
79 Ohio St.3d 53, 65-66, 679 N.E.2d 686.
{¶26} In the case at bar, appellant appeared to be dissatisfied
with his representation and argued he did not review discovery
materials until “thirteen minutes, two days before trial.”
Apparently, appellant’s courtroom outburst underscored his [Cite as State v. Tingler, 2022-Ohio-3792.]
frustration with the situation. However, appellant did not present
evidence of a total breakdown in communication. Further, appointed
counsel informed the court that he met with appellant, encouraged
appellant to view discovery, and prepared to proceed at trial.
{¶27} Finally, as appellee notes, appellant did not present any
evidence of prejudice. In exchange for appellant’s guilty plea to
possession of cocaine and tampering with evidence, the state
dismissed the heroin possession charge, a fourth-degree felony.
Furthermore, the trial court did not impose a maximum sentence.
As such, after our review we conclude that the trial court properly
exercised its discretion to deny appellant’s morning of trial
request for a last-minute substitution of counsel.
{¶28} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II.
{¶29} In his second assignment of error, appellant asserts that
a particular conflict with appointed counsel denied him his Sixth
Amendment right to effective assistance of counsel. Appellant
supplemented the record with a docket sheet, appointment of
counsel, and motion to withdraw to demonstrate that his appointed
counsel also briefly served as the appointed counsel for
appellant’s co-defendant Rieser, which, appellant contends, [Cite as State v. Tingler, 2022-Ohio-3792.]
constitutes successive representation. Appellee argues, however,
that appellant failed to show any prejudice.
{¶30} Successive representation occurs when defense counsel has
previously represented a co-defendant or a trial witness. Moss v.
United States, 323 F.3d 445, 459 (6th Cir.2003). Successive
representation “differs materially” from simultaneous
representation because “the attorney is no longer beholden to the
former client.” State v. Jones, 5th Dist. Stark Nos. 2007-CA-
00041, 2007-Ohio-00077, 2008-Ohio-1068, ¶ 77. “The fear in
successive representation cases is that the lawyer will fail to
cross-examine the former client rigorously for fear of revealing or
misusing privileged information.” Moss at 460. The attorney could
be “tempted to use confidential information to impeach the former
client; or * * * may fail to conduct a rigorous cross-examination
for fear of misusing his confidential information.” State v.
Stephenson, 10th Dist. Franklin No. 13AP–609, 2014-Ohio-670, ¶ 16,
citing U.S. v. Agosto, 675 F.2d 965, 971 (8th Cir.1982).
{¶31} “[W]here a trial court knows or reasonably should know of
an attorney’s possible conflict of interest in the representation
of a person charged with a crime, the trial court has an
affirmative duty to inquire whether a conflict of interest actually
exists.” State v. Gillard, 64 Ohio St.3d 304, 311, 595 N.E.2d 878 [Cite as State v. Tingler, 2022-Ohio-3792.]
(1992). “Where a trial court breaches its affirmative duty to
inquire, a criminal defendant’s rights to counsel and to a fair
trial are impermissibly imperiled and prejudice or ‘adverse effect’
will be presumed.” Id. at 312. However, “a trial court’s failure
to inquire into a possible conflict of interest does not transform
a possible conflict into an actual one nor does it automatically
require a retrial, for such retrial would be premature.” State v.
Beamon, 12th Dist. Butler No. CA2018-04-065, 2019-Ohio-443, ¶ 26,
citing State v. Gillard, 78 Ohio St.3d 548, 552, 679 N.E.2d 276
(1997)(Gillard II).
{¶32} To establish that an actual conflict of interest existed,
an appellant must demonstrate two elements. State v. Laghaoui,
2018-Ohio-2261, 114 N.E.3d 249, ¶ 22 (12th Dist.). First, the
appellant must show that “ ‘some plausible alternative defense
strategy or tactic might have been pursued.’ ” Gillard II at 552,
quoting United States v. Fahey, 769 F.2d 829, 836 (1st Cir.1985).
Second, the appellant must “ ‘establish that the alternative
defense was inherently in conflict with or not undertaken due to
the attorney’s loyalties or interests.’” Id., quoting Fahey at
836.
{¶33} An “actual conflict of interest,” for purposes of the
Sixth Amendment, is “a conflict of interest that adversely affects [Cite as State v. Tingler, 2022-Ohio-3792.]
counsel’s performance.” Mickens v. Taylor, 535 U.S. 162, 172, 122
S.Ct. 1237, 152 L.Ed.2d 291 (2002), fn. 5. To prove an “actual
conflict of interest,” the defendant must show that his counsel
“actively represented conflicting interests,” and that the conflict
“actually affected the adequacy of his representation.” Id.,
quoting Cuyler v. Sullivan, 446 U.S. 335, 349-350, 100 S.Ct. 1708,
64 L.Ed.2d 333 (1980).
{¶34} In State v. McDonald, 4th Dist. Lawrence No. 09CA4, 2009-
Ohio-5132, trial counsel previously represented one of the state’s
witnesses against the defendant. We observed that Ohio courts have
generally required defendants, who claim a successive conflict of
interest, to demonstrate an actual conflict. Id. at ¶ 13, Jones,
supra, 2008-Ohio-1068, at ¶ 71-78; State v. McGhee, 4th Dist.
Lawrence No. 04CA15, 2005-Ohio-1585, at ¶ 19-24; State v. Peoples,
10th Dist. Franklin No. 02AP-945, 2003-Ohio-4680, at ¶ 36-41.
{¶35} “ ‘ The term of art ‘actual conflict’ refers not to a
personality conflict but to a conflict of interest.’ ” State v.
Henness, 79 Ohio St.3d 53, 65, 679 N.E.2d 686 (1997), citing
Strickland v. Washington, 466 U.S. 668, 692; State v. Dunn, 4th
Dist. Pickaway No. 97CA26, 1998 WL 337079 (June 17, 1998). A
possible conflict of interest exists where the “interests of the
defendants may diverge at some point so as to place the attorney [Cite as State v. Tingler, 2022-Ohio-3792.]
under inconsistent duties.” State v. Dillon, 74 Ohio St.3d 166,
168, 657 N.E.2d 273 (1995), quoting Cuyler, 446 U.S. at 356, 100
S.Ct. At 1722, 64 L.Ed.2d at 351, 352, fn. 3. “[A]n actual
conflict of interest exists if, during the course of the
representation, the defendants’ interests do diverge with respect
to a material factual or legal issue or to a course of action.”
Dillon at 169, quoting Cuyler, 446 U.S. at 356, fn.3. “[W]hether
an actual conflict of interest existed is a mixed question of law
and fact, subject to de novo review on appeal.” Cuyler at 342.
{¶36} In McDonald, supra, 2009-Ohio-5132, the defendant “merely
stated that his counsel was ‘affiliated’ with the state’s witness.”
Further, the defendant stated that his counsel had “previously
represented” the witness. Id. at ¶ 16. This court held that
“[p]rior representation of a witness or victim is by itself
insufficient to demonstrate an actual conflict of interest,” id.,
and concluded that McDonald had, at best, demonstrated a potential
conflict and pointed to no specific legal, factual or motivational
issues that rose to the level of an actual conflict. Id.
{¶37} In State v. Beamon, supra, 2019-Ohio-443, the defense
attorney had represented the victim in an unrelated criminal matter
and Beamon waived any potential conflict of interest. However, on [Cite as State v. Tingler, 2022-Ohio-3792.]
appeal appellant challenged the successive representation. The
Twelfth District noted that successive representation did not give
rise to the same presumption of prejudice as simultaneous
representation, and held it is more difficult for a defendant to
show that defense counsel actively represented conflicting
interests in cases of successive, rather than simultaneous,
representation. Id. at ¶ 24, citing State v. Buck, 1st Dist.
Hamilton No. C-160320, 2017-Ohio-8242, ¶ 91. Thus, the court
concluded that Beamon failed to demonstrate that an actual conflict
of interest existed. Id. at ¶ 28. Moreover, the court determined
that Beamon failed to demonstrate that he suffered prejudice as a
result of the defense counsel’s representation of the victim eight
years earlier. Id. at ¶ 29.
{¶38} In the case sub judice, co-defendant Rieser’s docket
summary indicates that, on August 31, 2016, the trial court
arraigned Rieser, found him indigent, and appointed Attorney
Stratton, appellant’s trial attorney in the case sub judice. On
September 2, 2016, Stratton filed a request for a bill of
particulars, a request for notice of intent to use evidence, a
request for disclosure of evidence, and a motion to preserve
evidence. On September 19, 2016, Stratton filed a motion to
withdraw and stated, “Attorney Shawn Stratton has represented the
codefendant, Robert S. Tingler, on a prior criminal case.” The [Cite as State v. Tingler, 2022-Ohio-3792.]
trial court granted the motion to withdraw on September 21, 2016.
Thus, it appears that Stratton represented co-defendant Rieser for
less than thirty days, and some four years before appellant’s plea
in the case at bar. By contrast, the trial court appointed
Attorney Stratton to represent appellant on December 17, 2020,
after the court arraigned appellant and found him indigent.
Stratton represented appellant in this case from December 17, 2020,
until his August 6, 2021 guilty plea.
{¶39} Other than demonstrating that appellant’s appointed
counsel very briefly represented appellant’s co-defendant four
years before he represented appellant, appellant did not provide
any evidence of actual conflict. In this case, trial counsel’s
brief representation of appellant’s co-defendant did not prejudice
appellant or create an actual conflict, and appellant has not
established an ineffective assistance of counsel claim because he
did not demonstrate an actual conflict of interest. Further,
appellant did not explain how his interests diverged from, or are
adverse to, the co-defendant’s interests on any factual or legal
issue. Moreover, the record does not indicate that defense
counsel’s prior brief representation of Rieser created any
conflict. [Cite as State v. Tingler, 2022-Ohio-3792.]
{¶40} Therefore, after our review in the case sub judice, we
believe that appellant merely asserts that trial counsel had
conflicting obligations, but provides no specific and credible
evidence to link his conviction to the alleged conflict of
interest. As such, appellant failed to demonstrate that trial
counsel’s alleged conflict of interest deprived him of his
constitutional right to the effective assistance of counsel.
{¶41} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED. [Cite as State v. Tingler, 2022-Ohio-3792.] SCIOTO, 21CA3962
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of 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 Scioto County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal SCIOTO, 21CA3962
25 commences from the date of filing with the clerk.