[Cite as State v. Whittle, 2024-Ohio-1023.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-230288 C-230318 Plaintiff-Appellee, : TRIAL NO. B-1900989
vs. : O P I N I O N. ELTON WHITTLE, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 20, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Keith Sauter, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Robinson & Brandt, P.S.C., and Jeffrey M. Brandt, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge. {¶1} Defendant-appellant Elton Whittle was originally indicted on one count
of trafficking in heroin, one count of possession of heroin, three counts of trafficking
in a fentanyl-related compound, three counts of possession of a fentanyl-related
compound, one count of trafficking in cocaine, one count of possession of cocaine, one
count of trafficking in drugs, and one count of possession of drugs. A jury returned
guilty verdicts on all 12 counts.
{¶2} At the sentencing hearing, the trial court and the parties indicated that
an 11-year sentence was mandatory. The court sentenced Whittle to 11 years in prison
on count three, trafficking in a fentanyl-related compound. For reasons not apparent
in the record, it then merged all the other counts into count three. These appeals
followed.
Factual Background
{¶3} In July of 2017, Officer Scott Brians of the Cincinnati Police Department
received information from security officers at Cincinnati Children’s Hospital Medical
Center (“Children’s Hospital”) about drug sales occurring on Winslow Avenue
adjacent to the hospital’s parking garage. They reported that a black man was
conducting hand-to-hand drug transactions out of a Chevrolet Malibu that was parked
on Winslow. They also provided Officer Brians with the license plate number of that
car. After checking with the Bureau of Motor Vehicles (“BMV”), he found that it was
registered to 2840 Winslow Avenue, Apartment B.
{¶4} In early August 2017, Officer Brians met with a reliable, confidential
informant identified as “CI#1.” CI#1 told him that the suspect in the ongoing drug
sales went by the street name “E” and used a specific telephone number. CI#1 also
said that E used a gold Dodge Durango when making the sales. Officer Brians located
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a vehicle matching that description parked on Winslow Avenue and obtained its
license plate number. After checking that license plate with the BMV, he learned that
it was also registered to 2840 Winslow Avenue, Apartment B. A check of the Regional
Crime Information Center database revealed that Whittle, who had numerous drug-
related arrests, was attached to that license plate number. After seeing a BMV photo
of Whittle, CI#1 confirmed that Whittle was the person he knew as E, who was selling
drugs.
{¶5} On August 25, 2017, officers met with another reliable confidential
informant identified as “CI#3” to arrange a controlled purchase of drugs from E.
Officer Brians monitored a call from CI#3 to E using the phone number he had
obtained from CI#1. E directed CI#3 to meet him at a gas station at the corner of
Reading Road and East Martin Luther King Drive. Officers saw Whittle arrive in a
gold Dodge Durango with the previously identified license plate number. Whittle got
out of the vehicle, approached CI#3, and engaged in a hand-to-hand transaction.
Subsequently, the officers met with CI#3 and recovered the drugs that CI#3 had
purchased, which were later identified as a heroin/fentanyl mix.
{¶6} On September 5, 2017, the officers arranged another controlled
purchase. Officer Brians monitored a call from CI#3 to Whittle to arrange a purchase
of heroin/fentanyl. Whittle directed CI#3 to go to Winslow Avenue. At that meeting,
the officers saw Whittle go to a side door at 2840 Winslow Avenue, retrieve something
from inside the door, approach CI#3, and engage in a hand-to-hand transaction. The
officers recovered the drugs purchased by CI#3, which were later identified to be a
heroin/fentanyl mix.
{¶7} On October 30, 2017, a security officer at Children’s Hospital again
called police to report ongoing drug sales at 2840 Winslow Avenue and described the
seller. That description was consistent with the police officers’ observations of
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Whittle. The security officer also stated that the seller lived in an apartment inside
2840 Winslow Avenue and drove a gold Dodge Durango, with the previously identified
license plate, which was parked in the driveway of 2840 Winslow Avenue.
{¶8} Brians stated that the investigation of Whittle’s drug sales was put on
hold for several months when higher priority cases arose. On March 28, 2018, officers
monitored a phone call between another confidential informant identified as “CI#2”
at the same phone number as the previous buys. Whittle directed CI#2 to the gas
station at the corner of Reading Road and Martin Luther King Drive. Whittle drove
up in the gold Dodge Durango with the previously identified license plate. He got out,
approached CI#2, and engaged in a hand-to-hand drug transaction. Once again, the
officers recovered drugs later identified as a heroin-fentanyl mix. When shown a
picture of Whittle, CI#2 identified Whittle as the person who had sold the drugs.
{¶9} On February 6, 2019, a source of information identified as “SI#1”
informed officers that a trafficker known as E, using the same phone number, sold
narcotics out of 2840 Winslow Avenue, Apartment B. SI#1 also told them that E was
driving a silver Toyota Avalon with tinted windows. When shown a photo of Whittle,
SI#1 identified Whittle as E.
{¶10} Officers conducted surveillance at 2840 Winslow Avenue and saw a
silver Toyota Avalon with tinted windows parked in the driveway. They saw Whittle
come out of the building, get into the Toyota and drive away. A short time later, he
returned and used keys to enter the building. A BMV check revealed that the Toyota
was registered to Whittle at the Winslow Avenue address. On February 20, 2019, the
officers saw Whittle get out of the Toyota in the parking lot of a drive-through, engage
in a hand-to-hand transaction, and then get back into the vehicle.
{¶11} Based on the information the officers had obtained, Officer Brians
obtained a search warrant to search the premises at 2840 Winslow Avenue, which had
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four apartments, two on each floor. The warrant stated that apartment B was on the
top northwest corner. It also allowed the officers to search the Dodge Durango and
the Toyota Avalon.
{¶12} Police officers executed the warrant on February 22, 2019. In the
apartment at the northwest corner of the building, they found mail with Whittle’s
name and address on it, fentanyl packaged for sale, packaging material, “ripped up”
lottery tickets, numerous handguns and ammunition, seven cell phones, cash, pills,
heroin, marijuana and digital scales. In the basement’s common area, officers found
more torn lottery tickets and torn plastic baggies, both of which are commonly used to
package drugs. They also found a digital scale, a piece of mail and a traffic ticket with
Whittle’s name on them, and bags of heroin and fentanyl on the top of a bookshelf. A
drug dog alerted to an unlocked storage unit marked “C,” the door of which was
opened. Inside, the officers recovered heroin, fentanyl from the pocket of a gray and
black shirt, a 12-gauge shotgun, and several handguns.
{¶13} Whittle was indicted on one count of trafficking in heroin, one count of
possession of heroin, three counts of trafficking in a fentanyl-related compound, three
counts of possession of a fentanyl-related compound, one count of trafficking in
cocaine, one count of possession of cocaine, one count of trafficking in drugs, and one
count of possession of drugs. He subsequently filed a motion to suppress, in which he
alleged the search was improper because the warrant allowed police to search
apartment B, but they had actually searched apartment D, and the warrant did not
allow the officers to search in the basement anywhere but the storage bin for
apartment B. The trial court overruled the motion.
{¶14} Following a jury trial, Whittle was found guilty of all 12 counts charged
in the indictment. The trial court sentenced him on count three, which was trafficking
in a fentanyl-related compound under R.C. 2925.03(A)(2), and merged the other
5 OHIO FIRST DISTRICT COURT OF APPEALS
counts. As required by R.C. 2925.03(C)(9)(g) and 2929.14(A)(1)(b), the trial court
sentenced Whittle to a mandatory 11 years in prison. This appeal followed.
Search-Warrant Issues
{¶15} Whittle presents six assignments of error for review. In his first
assignment of error, he contends that the trial court erred by failing to grant his motion
to suppress. He argues that the search warrant failed to accurately and particularly
describe the residence to be searched, no probable cause existed that evidence would
likely be found in the residence to be searched, and that the officers failed to act in
good faith by entering the incorrect residence rather than seeking a new and accurate
warrant once they learned that the description of the property was inaccurate. This
assignment of error is not well taken.
{¶16} Appellate review of a motion to suppress presents a mixed question of
law and fact. We must accept the trial court’s findings of fact as true if competent,
credible evidence supports them. But we must independently determine whether the
facts satisfy the applicable legal standard. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Lang, 1st Dist. Hamilton No. C-220360,
2023-Ohio-2026, ¶ 11.
{¶17} To establish probable cause to issue a search warrant, the supporting
affidavit must contain sufficient information to allow a magistrate to draw the
conclusion that evidence is likely to be found at the place to be searched. Lang at ¶ 12;
State v. Martin, 2021-Ohio-2599, 175 N.E.3d 1004, ¶ 11 (1st Dist.). Probable cause
exists when a reasonably prudent person would believe that a fair probability exists
that the place to be searched contains evidence of a crime. State v. George, 45 Ohio
St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the syllabus; Lang at ¶ 12. “[I]t is
clear that ‘only the probability, and not prima facie showing, of criminal activity is the
6 OHIO FIRST DISTRICT COURT OF APPEALS
standard of probable cause.’ ” (Emphasis deleted.) George at 329, quoting Illinois v.
Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
{¶18} A reviewing court, which includes a trial court ruling on a motion to
suppress, as well as an appellate court, must give great deference to the magistrate’s
probable-cause determination. George at 329-330; Lang at ¶ 13. “[A]fter-the-fact
scrutiny by the courts of the sufficiency of an affidavit should not take the form of de
novo review.” George at 329, quoting Gates at 236. Our duty is to ensure that the
issuing magistrate had a substantial basis for concluding that probable cause
existed. See George at paragraph two of the syllabus; State v. German, 1st Dist.
Hamilton No. C-040263, 2005-Ohio-527, ¶ 12. Doubtful or marginal cases should be
resolved in favor of upholding the warrant. George at paragraph two of the syllabus;
Lang at ¶ 13.
{¶19} A search warrant and its supporting affidavit must particularly describe
the place to be searched. Crim.R. 41(C); State v. Burton, 1st Dist. Hamilton No. C-
080173, 2009-Ohio-871, ¶ 16. Because a search warrant and supporting affidavit
usually contain more information than just an address to identify the place to be
searched, a search warrant is not necessarily invalid if it describes the property to be
searched with an incorrect address. State v. Gravely, 188 Ohio App.3d 825, 2010-
Ohio-3379, 937 N.E.2d 136, ¶ 25 (10th Dist.); Burton at ¶ 16. To determine whether a
property description is constitutionally valid, the trial court must determine whether
the place to be searched is described with sufficient particularity to enable the
executing officer to locate and identify the premises with reasonable effort and
whether there is a reasonable probability that another premises might be mistakenly
searched. Gravely at ¶ 25.
{¶20} As to the place to be searched, the warrant stated:
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2840 Winslow Avenue #B, Cincinnati Ohio, 45206. Further described
as a two story red brick multi-family building with red trim Entry to the
building is thru [sic] a white steel door on the west side of the building.
Entry to apartment B will be thru [sic] a brown wooden door with the
letter B affixed to it located on the second floor, North West corner.
{¶21} At the hearing on the motion to suppress, Officer Brians testified that
before the execution of the search warrant, he knew that Whittle’s mother lived in the
bottom right apartment, Whittle’s father lived in the top right apartment, an unknown
person lived in the bottom left apartment, and Whittle lived in the top left apartment,
which was the northwest corner of the building. He identified apartment B in his
affidavit because he relied on information from a confidential informant who told him
that the apartment letter was B, that it had a brown door, and that it was located on
the northwest corner of the second floor. He conducted BMV checks to rule out the
other apartments.
{¶22} When Officer Brians was asked if he searched apartment B, he replied,
“The top, left apartment, yes.” When asked if he had checked the letters on the doors,
he said that he had not because SWAT officers had already cleared the apartment that
he described as “the goal apartment or the objective apartment [that] was the top, left
apartment in the northwest corner.” When he entered the building, he did not look at
any of the apartments on the first floor and did not see any letters on the doors of
either of the two apartments on the second floor.
{¶23} The state submitted into evidence a photograph of the door taken at the
time of the search. It shows a brown door with no letter on it. Officer Brians stated
that the picture depicted the door to the apartment that was searched. On cross-
examination, defense counsel showed him a photo taken months after the execution
of the warrant. Officer Brians acknowledged that the apartment on the top northwest
8 OHIO FIRST DISTRICT COURT OF APPEALS
corner of the building was not apartment B. He added, “The top northwest corner is
what I considered to be apartment B when I wrote the warrant.”
{¶24} Officer Brians also acknowledged that the photo depicted apartment B
as being on the first floor, but he said that “I don’t know that it was that way at the
time of the warrant.” He also agreed with the statement that “[f]or all we know, this
‘B’ could have been placed there by Mr. Whittle or someone else after the fact.”
{¶25} Although the warrant in this case mistakenly listed apartment B as the
place to be searched, the warrant and the testimony at the suppression hearing clearly
showed that the premises to be searched was on the top floor of the northwest corner
of the building, and that was the apartment that the police officers searched. Inside
that apartment, they found mail with Whittle’s name on it. The information known to
the officers as set forth in the warrant was sufficient to locate the apartment with
reasonable efforts.
{¶26} Further, the house had been under surveillance before the search. The
officer who drafted the affidavit used to obtain the warrant also participated in the
execution of the warrant, which diminishes the chances of a mistaken search. See
Gravely, 188 Ohio App.3d 825, 2010-Ohio-3379, 937 N.E.3d 136, at ¶ 27. Under the
circumstances, we cannot hold that the trial court erred in denying Whittle’s motion
to suppress. Therefore, we overrule his first assignment of error.
{¶27} In his second assignment of error, Whittle contends that trial court
erred in failing to suppress evidence “as a result of an invalid and otherwise flawed
search warrant.” He argues that the search warrant was invalid because the affidavit
in support of the warrant did not have a notary seal. This assignment is not well taken
{¶28} R.C. 2933.23 governs the affidavit supporting a search warrant. It
provides,
9 OHIO FIRST DISTRICT COURT OF APPEALS
A search warrant shall not be issued until there is filed with the judge or
magistrate an affidavit that particularly describes the place to be
searched, names or describes the person to be searched, and names or
describes the property to be searched for and seized; that states
substantially that the offense in relation to the property and that the
affiant believes and has good cause to believe that the property is
concealed at the place or on the person; and that states the facts upon
which the affiant’s belief is based.
{¶29} Similarly, Crim.R. 41(C)(1) provides,
A warrant shall issue on either an affidavit or affidavits sworn to before
a judge of a court of record or an affidavit or affidavits communicated
to the judge by reliable electronic means establishing the grounds for
issuing the warrant. In the case of a search warrant, the affidavit shall
name or describe the person to be searched or particularly describe the
place to be searched, name or describe the property to be searched for
and seized, state substantially the offense in relation thereto, and state
the factual basis for the affiant’s belief that such property is there
located.
{¶30} The affidavit supporting the warrant meets th0se requirements.
Neither the statute nor the rule requires the affidavit to be notarized. Whittle
acknowledges that the statute and the rule do not require a notary seal. Nevertheless,
he cites R.C. 147.04, which requires a notary public to obtain a seal prior to the
discharge of his or her official duties, and R.C. 147.542, the statute setting forth
notarial certificate requirements. He argues that these statutory provisions apply
because under the rules of statutory construction a more specific statute controls over
10 OHIO FIRST DISTRICT COURT OF APPEALS
a more general statute. Therefore, the more specific provisions of R.C. 147.542
override the more general provisions of R.C. 2933.23 and Crim.R. 41. See R.C. 1.51.
{¶31} But Whittle has it backwards. R.C. 2933.23 and Crim.R. 41 codify the
specific requirements for search warrants and the affidavits supporting those
warrants, while R.C. Chapter 147 applies to notary publics and their certifications of
documents generally. Therefore, R.C. 2933.23 and Crim.R. 41 supersede R.C.
Chapter 147. See State v. Littlejohn, 7th Dist. Mahoning No. 11 MA 106, 2012-Ohio-
4554, ¶ 16-17.
{¶32} Moreover, generally, suppression of evidence is only warranted for rule
violations of “constitutional magnitude.” State v. Dibble, 159 Ohio St.3d 322, 2020-
Ohio-546, 150 N.E.3d 912, ¶ 33. Ministerial acts should not “cause a warrant to fail.”
State v. Wilson, 3d Dist. Allen No. 1-16-57, 2017-Ohio-5484, ¶ 14; State v. Shingles,
46 Ohio App.2d 1, 3, 345 N.E.2d 614 (3d Dist.1974). Even if a notarization of the
warrant was required, the affidavit was sworn to in the presence of a judge, and the
failure to have it notarized would not render it inadmissible by the Fourth
Amendment. See State v. Smith, 7th Dist. Mahoning No. 99 CA 256, 2001 Ohio App.
LEXIS 2976, 9-10 (June 26, 2001). Consequently, we overrule Whittle’s second
assignment of error.
Other-Acts Evidence
{¶33} In his third assignment of error, Whittle contends that the trial court
erred in admitting evidence of the five controlled buys as he was not charged with any
offenses as a result of those buys. He argues that it was improper character evidence
admitted in violation of Evid.R. 404(B). This assignment of error is not well taken.
{¶34} The state argues and this court has held that Evid.R. 404(B) does not
apply to acts that are “not independent” of the charged crime. State v. David, 1st Dist.
11 OHIO FIRST DISTRICT COURT OF APPEALS
Hamilton No. C-210227, 2021-Ohio-4004, ¶ 14. Other-acts evidence is admissible
when the other acts demonstrate the “setting” of a case and are part of the “immediate
background” of the charged offenses. State v. Warth, 1st Dist. Hamilton No. C-
220477, 2023-Ohio-3641, ¶ 57; State v. Fritsch, 1st Dist. Hamilton No. C-220570,
2023-Ohio-2676, ¶ 13; State v. Mincy, 2023-Ohio-472, 208 N.E.3d 1043, ¶ 19 (1st
Dist.); David at ¶ 16; State v. Johnson, 1st Dist. Hamilton No. C-170371, 2018-Ohio-
4131, ¶ 30.
{¶35} Whittle did not object when evidence of the controlled buys was
presented at trial. The failure to object precludes him from raising the issue on appeal
unless it rises to the level of plain error. State v. Underwood, 3 Ohio St.3d 12, 13, 444
N.E.2d 1332 (1983); State v. Thomas 1st Dist. Hamilton No. C-120561, 2013-Ohio-
5386, ¶ 22. An alleged error does not rise to the level of plain error unless, but for the
error, the outcome of the trial would have been otherwise. State v. Wickline, 50 Ohio
St.3d 114, 119-120, 552 N.E.2d 913 (1990); State v. Baldwin, 1st Dist. Hamilton No.
C-081237, 2009-Ohio-5348, ¶ 6.
{¶36} Whittle also argues that the trial court should have excluded the
evidence of the controlled buys under Evid.R. 403(A), which provides that relevant
evidence is not admissible if its “probative value is substantially outweighed by the
danger of unfair prejudice.” We do not address whether the trial court erred in
admitting other-acts evidence under Evid.R. 404(B) or Evid.R. 403(A). Given the
overwhelming evidence of Whittle’s guilt, we cannot hold that but for the admission
of the other-acts evidence, the outcome of the trial would have been otherwise.
Therefore, any error did not rise to the level of plain error. See Wickline, 50 Ohio
St.3d at 119-120, 552 N.E.2d 913; Baldwin, 1st Dist. Hamilton No. C-081237, 2009-
Ohio-5348, at ¶ 6. Consequently, we overrule Whittle’s third assignment of error.
12 OHIO FIRST DISTRICT COURT OF APPEALS
Constructive Possession
{¶37} In his fourth assignment of error, Whittle contends that “the jury
verdicts finding Whittle guilty of all 12 offenses” were against the manifest weight of
the evidence. He argues that the state failed to present competent, credible evidence
that Whittle possessed the items found in the common areas of the basement. This
{¶38} A conviction requires a finding of guilt and a sentence. State v. Phillips,
1st Dist. Hamilton Nos. C-150376 and C-150378, 2016-Ohio-4672, ¶ 35. Whittle was
only convicted of one count of trafficking in a fentanyl-related compound under R.C.
2925.03(A)(2). Therefore, we address this assignment of error only as it relates to
that conviction.
{¶39} R.C. 2925.01(K) provides that possession “means having control over
a thing or a substance, but may not be inferred solely from mere access to the thing
or substance through ownership or occupation of the premises upon which the thing
or substance is found.” A defendant’s possession of a thing or substance may be
actual or constructive. State v. Williams, 1st Dist. Hamilton No. C-230145, 2023-
Ohio-4667, ¶ 12. Courts have defined constructive possession as “knowingly
exercising dominion and control over an object, even though the object is not within
the person’s immediate physical possession.” State v. English, 1st Dist. Hamilton No.
C-080872, 2010-Ohio-1759, ¶ 32, citing State v. Hankerson, 70 Ohio St.2d 87, 434
N.E.2d 1362 (1982), syllabus. The person must be “conscious of the presence of the
object.” Hankerson at 91. The state may prove dominion and control and
consciousness of the object by circumstantial evidence. Williams at ¶ 15; English at
¶ 32.
{¶40} In the common area of the basement, the police officers found a trash
can filled with “tear-offs” from plastic baggies, which was indicative of preparing
13 OHIO FIRST DISTRICT COURT OF APPEALS
drugs for sale, and more lottery tickets, the same as were recovered from the
apartment. In boxes, they found torn papers with Whittle’s name and address on
them, torn lottery tickets, and torn baggies. On a shelving unit, the officers found
more personal documents with Whittle’s name and address on them. They found
large baggies of heroin and fentanyl sitting on a bookshelf.
{¶41} In the storage bin marked “C,” they found a gray and black shirt that
had a bag of drugs in its pocket. They found a shotgun, and in a hole in the ceiling,
they found several handguns. They found digital scales, commonly used to weigh
drugs for sale, and bags with residual amounts of heroin, fentanyl, and other drugs.
{¶42} Given the presence of identifying documents and other of Whittle’s
personal effects in the apartment where drugs were packaged for sale and other
documents and personal effects in the basement, the circumstantial evidence was
sufficient to allow the jury to infer that Whittle had constructive possession of the
fentanyl found in the basement. Though Whittle denied knowing about any of the
drugs in the basement, the jury did not believe him. Matters as to the credibility of
evidence are for the trier of fact to decide. State v. Bryan, 101 Ohio St.3d 272, 2004-
Ohio-971, 804 N.E.2d 433, ¶ 116; Johnson, 1st Dist. Hamilton No. C-170371, 2018-
Ohio-4131, at ¶ 57.
{¶43} After reviewing the record, we cannot hold that the trier of fact lost its
way and created such a manifest miscarriage of justice that we must reverse Whittle’s
conviction and order a new trial. Therefore, the conviction was not against the
manifest weight of the evidence. See State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997); State v. Jillson, 1st Dist. Hamilton No. C-110430, 2012-Ohio-
10343, ¶ 76. We overrule Whittle’s fourth assignment of error.
14 OHIO FIRST DISTRICT COURT OF APPEALS
Right to Counsel
{¶44} In his fifth assignment of error, Whittle contends that the trial court
erred in failing to grant his request to fire counsel or to at least investigate whether
new counsel was appropriate or whether he should be permitted to represent himself.
This assignment of error is not well taken.
{¶45} The record shows that Whittle changed counsel numerous times over
the course of the proceedings. At the sentencing hearing, Whittle announced that he
wanted to fire his counsel. He stated, “I asked for a few things that I needed and he
didn’t get it.” The court replied, “No. He is with you through this case * * *.” Whittle
added that he wanted to fire his counsel before trial, but that the court “didn’t give
me a chance to,” to which the court replied that Whittle’s assertion was false. As the
court started to proceed on the sentencing hearing, Whittle asked, “I can’t fire my
lawyer?” To which the court replied, “Not at a sentencing on a case where the
sentence is predetermined by law.”
{¶46} The Sixth Amendment right to counsel, implicitly embodies a
“correlative right to dispense with a lawyer’s help.” State v. Martin, 103 Ohio St.3d
385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 23, quoting Adams v. United States ex rel.
McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942). A defendant in a
criminal trial has an independent constitutional right to represent himself at trial
without counsel when the defendant knowingly, voluntarily chooses to waive counsel.
Martin at ¶ 24; State v. Jackson, 1st Dist. Hamilton No. C-180160, 2019-Ohio-2933,
¶ 5.
{¶47} A criminal defendant must “unequivocally and explicitly invoke” the
right to self-representation. State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594,
63 N.E.3d 93, ¶ 29. The record does not show that Whittle unequivocally invoked his
right to self-representation. Further, the request to waive counsel must be timely
15 OHIO FIRST DISTRICT COURT OF APPEALS
made. State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 76-
77; State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 37-40. A
motion to waive counsel at the sentencing hearing is not timely. Therefore, the trial
court did not err in refusing to allow Whittle to represent himself and proceed pro se
at the sentencing hearing.
{¶48} Further, the trial court did not err in failing to investigate whether new
counsel should be appointed. An indigent defendant has the right to competent,
effective representation, but not to have the counsel of his or her choice. State v.
Newman, 6th Dist. Wood No. WD-15-031, 2016-Ohio-2667, ¶ 3; State v. Cobb, 9th
Dist. Summit No. 26847, 2014-Ohio-1923, ¶ 17; State v. Andrews, 1st Dist. Hamilton
No. C-110735, 2012-Ohio-4664, ¶ 21. “[A] an indigent defendant has no right to have
a particular attorney represent him and therefore must demonstrate ‘good cause’ to
warrant substitution of counsel.” State v. Murphy, 91 Ohio St.3d 516, 523, 747 N.E.2d
765 (2001), quoting State v. Cowans, 87 Ohio St.3d 68, 72, 717 N.E.2d 298 (1999).
We review the trial court’s decision to deny a motion for substitute counsel under an
abuse-of-discretion standard. Id. at 523; State v. McNeil, 83 Ohio St.3d 438, 452,
700 N.E.2d 596 (1998).
{¶49} The record shows that Whittle had changed attorneys several times,
and the request to fire his attorney was not timely made. The record does not support
his assertion that he wanted to fire counsel before the trial. Under the circumstances,
we cannot hold that the trial court abused its discretion in denying Whittle’s motion.
Further, even if the court had erred, the court had no choice but to impose a
mandatory prison term. See R.C. 2925.03(C)(9)(g) and 2929.14(A)(1)(b). Therefore,
any error was harmless. See Crim.R. 52(A). We overrule Whittle’s fifth assignment
of error.
16 OHIO FIRST DISTRICT COURT OF APPEALS
{¶50} Finally, in his sixth assignment of error, Whittle contends that he was
denied the effective assistance of counsel. He argues generally that counsel failed to
object to improper testimony. He claims that he was prejudiced because an appellate
court could only review it for plain error. This assignment of error is not well taken.
{¶51} A court will presume that a properly licensed attorney is competent,
and the defendant bears the burden to show ineffective assistance of counsel. State
v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988); State v. Hackney, 1st
Dist. Hamilton No. C-150375, 2016-Ohio-4609, ¶ 36. To sustain a claim for
ineffective assistance of counsel, the defendant must demonstrate that counsel’s
performance was deficient and that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); Hackney at ¶ 36. Counsel’s failure to object is not, by itself, enough to sustain
a claim for ineffective assistance of counsel. Hackney at ¶ 39.
{¶52} Whittle fails to specify where counsel was ineffective for failing to
object. The appellant bears the burden to show error by reference to the record. To
be considered on appeal, errors by a trial court must be argued and supported by legal
authority and citation to the record. App.R. 16(A); State v. Brown, 1st Dist. Hamilton
No. C-120327, 2013-Ohio-2720, ¶ 24. “If an argument exists that can support [an]
assignment of error, it is not this court’s duty to root it out.” Brown at ¶ 24,
quoting State v. Dutiel, 5th Dist. Perry No. 2012-CA-11, 2012-Ohio-5349, ¶ 38.
Therefore, we decline to address Whittle’s argument. See Warth, 1st Dist. Hamilton
No. C-220477, 2023-Ohio-3641, at ¶ 77-79. Consequently, we overrule Whittle’s sixth
assignment of error and affirm the trial court’s judgment.
Judgment affirmed.
ZAYAS, P.J., and KINSLEY, J., concur.
Please note:
17 OHIO FIRST DISTRICT COURT OF APPEALS
The court has recorded its own entry this date.