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

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HANCOCK COUNTY 

 

STATE OF OHIO, 

 CASE NO. 5-16-17 

 PLAINTIFF-APPELLEE, 

 v. 

RAMON ORTEGA, IV, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Hancock County Common Pleas Court 

Trial Court No. 2012-CR-09 

Judgment Affirmed 

Date of Decision: January 23, 2017

 

APPEARANCES: 

Jeffrey M. Brandt for Appellant 

Alex K. Treece for Appellee 

 
Case No. 5-16-17 

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WILLAMOWSKI, J. 

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

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

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

lower court is affirmed. 

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

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

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

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

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

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

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

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

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

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

CR-217 in which Ortega was the sole defendant. Id. at 3.1

 Brandy Cook (“Cook”) 

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

 

1

 Of the two cases involving Ortega, only case 2011-CR-217 was scheduled for July 2, 2012. Case 2012-

CR-9 was to take place at a later time. 
Case No. 5-16-17 

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

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

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

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

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

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

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

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

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

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

forward.” Id. at 9. 

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

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

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

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

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

disinclination to grant Ortega’s request, saying, 

I still haven’t heard a reason and I’m not going to grant your 

request. You have two choices today. You can either go to trial 

with Mr. Ramsey or I may excuse him then you’d be representing 

yourself today. So those are the choices you’re going to have. Do 

you want to talk to Mr. Ramsey before you elect? 
Case No. 5-16-17 

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

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

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

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

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

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

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

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

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

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

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

Id. 

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

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

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

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

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

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

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

Ramsey. Id. at 17. The court explained that this could be a problem for him, saying 
Case No. 5-16-17 

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

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

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

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

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

20. 

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

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

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

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

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

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

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

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

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

assignment of error. 

The trial court erred by responding to a request from both Ortega 

and defense counsel for dismissal of counsel on the grounds that 

Ortega did not trust counsel, and by denying the motion and 

forcing Ortega to remain tethered to counsel or represent himself, 

leading to denial of Ortega’s constitutional rights to counsel 

and/or choice of counsel. 
Case No. 5-16-17 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

69 F.3d 116, 121 (6th Cir.1995). Courts may also consider the timeliness of the 
Case No. 5-16-17 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ortega’s motion. After Ramsey advocated for Ortega’s motion, however, the court 
Case No. 5-16-17 

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

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

proceeding pro se or with Ramsey as counsel. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

court recessed to give Ortega the opportunity to confer with Ramsey and was only 
Case No. 5-16-17 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

chose not to take. 
Case No. 5-16-17 

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

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

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

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

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

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

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

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

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

County is affirmed. 

Judgment Affirmed 

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

/hls