[Cite as State v. Linder, 2018-Ohio-741.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 105462 

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs.

MARVIN BAXTER LINDER

 DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED IN PART; REVERSED IN PART 

AND REMANDED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-16-608207-E 

BEFORE: Jones, J., Keough, P.J., and Laster Mays, J. 

 

RELEASED AND JOURNALIZED: March 1, 2018 
ATTORNEY FOR APPELLANT 

Russell S. Bensing 

600 IMG Building 

1360 East Ninth Street 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

BY: Jillian Eckart 

Assistant County Prosecutor 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
LARRY A. JONES, SR., J.: 

{¶1} In this appeal, defendant-appellant Marvin Baxter Linder (“Linder”) contends 

that his counsel was ineffective in representing him on his pro se motion to withdraw his 

plea. He further contends that the trial court abused its discretion by denying his pro se 

motion to disqualify counsel. For the reasons that follow, we find that Linder’s counsel 

was not ineffective, and thus we uphold Linder’s plea, but remand the case for 

resentencing with new counsel. 

I. Procedural and Factual Background

{¶2} In July 2016, Linder, along with five codefendants, was charged in a 21-count 

indictment. The charges related to drug trafficking as part of a criminal gang. Linder 

retained counsel to represent him.1

{¶3} Linder, through counsel, engaged in pretrial procedures and practices with the 

state. During plea negotiations, the state left two offers on the table in regard to 

sentencing: (1) a recommended prison range of 8 to 12 years, or (2) a recommended 

prison range of 6 to 15 years. 

{¶4} The case was set for trial, and on the date trial was scheduled to commence, 

the trial court entered an order allowing Linder time in the courtroom to meet with his 

mother and father. After the meeting with his parents, Linder agreed to plead guilty. 

The agreement was that he would plead guilty to 13 counts of the indictment, and the 

 1

Linder had two retained attorneys during the trial court proceedings. He discharged his first 

counsel and his second retained counsel is the counsel at issue in this appeal. 
parties would recommend to the court a sentencing range of 6 to 15 years. The trial 

court accepted the plea, finding that Linder knowingly, intelligently, and voluntarily 

entered into it. The court set the matter for sentencing. 

{¶5} Three days prior to the sentencing date, Linder filed two pro se motions: 

one to disqualify his counsel and have new counsel appointed, and the other to withdraw 

his guilty plea. Counsel first learned of the motions on the day of sentencing, which was 

when the motions were considered by the trial court, prior to the imposition of sentence. 

Motion to Disqualify Counsel

{¶6} Linder addressed the court, and told it that his counsel had failed to show 

Linder most of the discovery he obtained from the state. Linder also complained that he 

provided counsel with a list of witnesses whom Linder believed would have testified on 

his behalf at trial, but his counsel failed to contact any of them. Linder further told the 

court that “they made me take a deal against my will.” 

{¶7} The trial court judge told Linder that some of the discovery that the state 

provides to defense counsel is for counsel only; it is not meant for the client to see. The 

court further told Linder that 

It seems to me [counsel has] done a lot on your behalf. You just told me 

on the record everything that you know he has. So, he has police reports, 

he has statements, he has photos. He has all of this evidence, and you are 

just complaining because you haven’t seen it all, but he has it. It’s not a 

situation where you are coming in here and telling he hasn’t retrieved 

anything for you, that there’s all this outstanding discovery, that there’s 

statements that exist that you don’t have. 

I don’t see what he hasn’t done for you. You just put on the record 

everything that he’s done for you, not to mention all the pretrials that have 
been conducted as well. 

{¶8} Linder responded that he told counsel he had not been interested in taking a 

plea, but had wanted to go to trial instead. 

{¶9} Linder’s counsel addressed the court. He stated that “[i]t’s my duty, and I 

took an oath to defend people the best way possible and sometimes that means that I have 

to do things that even they don’t understand.” Counsel then told the court that even if it 

did not sentence Linder to maximum, consecutive time, he was still exposed to a 

significant sentence of at least 20 years because of the serious nature of the charges and 

the numerous gang and gun specifications. 

{¶10} In response to Linder’s complaint about not seeing most of the discovery 

provided by the state, counsel told the court that he was “walking a fine line of still 

maintaining privilege,” but that Linder was concerned that, due to his inability to view 

some of the discovery, he had no way of knowing whether counsel was just “making up” 

statements. Counsel told the court that he was not going to “compromise [his] license 

because someone challenges whether [he is] telling the truth * * *.” 

{¶11} Counsel further explained his advocacy for, and relationship with, Linder as 

follows: 

No, he did not inspect the witness statement, but we have been over it time 

and time again what evidence would be presented against him. His 

attitude [was], I’m going to go to trial anyway. [It had] nothing to do with 

whether or not there were defenses, but just that he wanted to go to trial, 

and I told him repeatedly I wasn’t going to let him walk himself over a cliff 

just because. 

The court graciously allowed his parents time alone with him, cleared the 
courtroom. I stepped aside and even his father had a frank discussion with 

him that said, use your head. I raised you better than this. You are guilty 

of some stuff. This is fair and adequate. 

He wasn’t pressured. As a matter of fact, he stated in open court and on 

the record that no promises or threats were made to get him to take the plea. 

* * * [G]etting him to a point where he did take this plea was the best that 

could be done for him under the circumstances after going over every 

possible thing that would come up in court, including statements he made, 

evidence that was in his phone, things that his family continued to post on 

Facebook, talk to him about over the phone while he was in jail and to 

blindly say, so what, I want to go to trial was not in his best interest. 

So, I stand proud on the fact we were able to reach a plea offer. As a 

matter of fact, we started that day of trial with an eight-year minimum and 

the State and I even on the day of trial graciously continued to work to put 

something together that would benefit Mr. Linder. And I believe that at 

the end of the day and after almost a whole day’s work in court, we were 

able to hammer out something that ultimately I believe will result in a fair 

resolution of this. 

I didn’t neglect any of my duties. If anything else, I’m trying to save Mr. 

Linder from himself. 

{¶12} After counsel stated the above, Linder then complained that counsel had 

only been to see him three times in jail, which were brief, two to three minute visits. 

Linder stated that because the visits were so brief, he and counsel never discussed his 

defense. The court reviewed the docket and its notes, detailing other times, in addition 

to the three visits, that Linder interacted with counsel. In doing so, the court made 

reference to a psychological evaluation that Linder had, and stated “[t]hen your reports 

came back and those were the ones to determine how to handle Mr. Linder.” At that 

point, defense counsel interjected, “Your Honor, if the court remembers, the report came 

back that he was malingering.” The court recalled that the malingering issue was 
addressed. 

{¶13} Counsel informed the court that, from the beginning of the case, Linder had 

been apprised of the state’s evidence: “This evidence has been in front of him. This 

evidence has been irrefutable for two years. Mr. Linder knows that, [so] my comment 

[to him] was, don’t play games with going to trial, you are only going to hurt yourself.” 

Counsel further commented, “I will stand on the work that’s been on the recommendation 

based on the report that came back after all the time he spent at Northcoast and the fact 

that Mr. Linder knows what he’s been doing, including filing these motions today.” 

{¶14} The assistant prosecuting attorney told the court that counsel’s 

representation that some of the discovery the state provided to the defense was marked 

“counsel only” was accurate. The assistant prosecuting attorney also told the court that 

“all of the evidence the State has provided throughout this entire case has remained the 

same.” 

{¶15} Thus, the record demonstrates a robust colloquy, with Linder maintaining 

that counsel did not sufficiently represent him, and counsel maintaining that he did. 

Counsel’s final commentaries to the court included him saying the following: (1) “I 

can’t even formulate the words to sit here and listen to this man lie and say he knows 

nothing and I didn’t discuss evidence * * * his attitude was so what, I want to go to trial 

anyway”; (2) “It’s the game that not only he is playing today but was playing leading up 

to taking a plea [but] I continue to say it is in his best interest to not let him walk himself 

over a cliff”; and (3) “Don’t lie.” 
{¶16} Noting the work that counsel had done on behalf of Linder, and that Linder 

had not previously voiced any dissatisfaction with counsel, but, in fact stated at the plea 

hearing that he was satisfied with him, the trial court denied the motion to disqualify 

counsel. 

Motion to Withdraw Plea

{¶17} The trial court first heard from Linder’s counsel on Linder’s request to 

withdraw his plea. Counsel told the court that all of the constitutional rights that Linder 

waived in pleading guilty were explained to him in the plea colloquy. He told the court 

that he reviewed the waiver of the rights with Linder “over and over and over” again, but 

that “[o]ne of the sticking points * * * [was that] Mr. Linder [did not] understand that one 

witness’ testimony is enough, if believed by the jury, to be sufficient evidence to possibly 

result in a conviction.” Counsel’s position, therefore, was as follows: 

So, with regard to withdrawing his guilty plea, in addition to everything that 

was stated in open court, in addition to everything that I counseled him 

about in getting him ready to take the plea, I will say since family was 

included and therefore confidentiality was broken, every single thing about 

what he was giving up was discussed with his mother and his father as well. 

 This plea was entered into knowingly, intelligently, and voluntarily 

because that was in Mr. Linder’s best interest. 

{¶18} Linder responded that, during the meeting, counsel arranged, and the court 

allowed, for him to talk to his parents, he was “basically forced * * * to take the deal, not 

by [defense counsel] but by my mother and father. I told them I did not want to take the 

deal. I wanted to go to trial.” 

{¶19} The trial court, reviewing the official transcript, informed Linder that he (1) 
never indicated at the plea hearing that he was having any issues or difficulties with the 

plea, (2) never hesitated, (3) indicated that he understood all of the constitutional rights he 

was waiving, (4) indicated that he understood the possible sentencing penalties, including 

that the trial court was not bound by the recommended sentencing range. 

{¶20} Linder continued to maintain that he was “forced and pressured by my 

parents to take my plea.” Counsel responded: 

Your Honor, my only comment with regard to all of that is * * * the 

colloquy Mr. Linder has engaged us in * * * can only be one of two things. 

It can either be a continuation of the kind of things he tried back in the 

summer of last year to manipulate this court and this process, or Northcoast 

did a remarkable job of restoration. * * * I want the record to reflect that 

he’s mischaracterized not only his relationship with me but the 

conversations he had with his mom and dad. His mom and dad didn’t 

pressure him. His mom and dad begged him to do the right thing. I don’t 

know where the attitude, the resistance and the untrue allegations of this 

morning came from, but I would ask the court to continue with the sage 

advice he got from mom and dad and keep the plea. 

{¶21} The trial court denied Linder’s motion to withdraw his plea, and asked 

counsel what he had to say on Linder’s behalf relative to sentencing. Counsel told the 

court that because he never received, nor was aware of until that day, Linder’s pro se 

motions to disqualify him and withdraw his plea, he came “prepared to * * * talk about 
how Mr. Linder took full responsibility for his actions and is remorseful.” Counsel 

further told the court that “it’s hard to stand here in front of you and make that claim after 

the hearing that we just had.” Nonetheless, counsel told the court that he believed that 

Linder could “change his life and one day be a contributing productive citizen,” and he 

hoped that the court would not “hold * * * what we’ve been through against him and 

sentence him just on what would have been presented had we gone to trial.” 

{¶22} The state outlined the case that would have been presented against Linder, 

and in doing so, presented two law enforcement officials who informed the court about 

Linder’s role in the criminal gang. Thereafter, the trial court imposed a nine-year prison 

term on Linder. Linder now appeals, presenting the following two assignments of error 

for our review: 

I. The Defendant was denied the assistance of counsel, by virtue of his 

attorney’s complete abandonment of his role as an advocate for his client, in 

violation of Defendant’s rights under the 6th Amendment to the 

Constitution of the United States and Article I, Section 10 of the Ohio 

Constitution. 

II. The trial court erred and abused its discretion in failing to disqualify 

counsel and to permit counsel to continue to represent Defendant. 

II. Law and Analysis

{¶23} The two assignments of error are interrelated and will be considered 

together. Linder’s contention in this appeal is that his plea was not knowingly, 

intelligently, and voluntarily made because of his counsel’s deficient performance, and 

that his counsel’s continued representation of him left him without counsel, because 

counsel essentially defended his own work on the case rather than advocate for Linder. 
{¶24} According to Linder, we should review his ineffective assistance of counsel 

claim under a structural-error analysis. A structural error is a constitutional defect that 

affects the framework within which the trial proceeds, rather than simply being an error in 

the trial process itself. State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 

917, ¶ 20. Structural error gives rise to a conclusive presumption of prejudice as a 

matter of law and thus requires automatic reversal. State v. Fisher, 99 Ohio St.3d 127, 

2003-Ohio-2761, 789 N.E.2d 222, ¶ 9-10. A structural error permeates the entire 

conduct of a trial so that the trial cannot reliably serve its function as a means for 

determining guilt or innocence. Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 

S.Ct. 1246, 113 L.Ed.2d 302 (1991). The Ohio Supreme Court has admonished courts 

to apply structural error with caution. State v. Wamsley, 117 Ohio St.3d 388, 

2008-Ohio-1195, 884 N.E.2d 45, ¶ 24; see also Colon at ¶ 21. 

{¶25} To establish a claim that counsel was ineffective under the Sixth 

Amendment, a defendant normally must establish both that counsel performed deficiently 

and that he or she was prejudiced by the deficient performance. State v. Spaulding, 151 

Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 56, citing Strickland v. Washington, 

466 U.S. 668, 686, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The United States 

Supreme Court has “uniformly found constitutional error without any showing of 

prejudice when counsel was * * * totally absent, or prevented from assisting the accused 

during a critical stage of the proceeding.” United States v. Cronic, 466 U.S. 648, 659, 

104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), fn. 25; Strickland at 692 (“Actual or 
constructive denial of the assistance of counsel altogether is legally presumed to result in 

prejudice.”). 

{¶26} Upon review, we find that the structural error analysis does not apply to this 

case. Counsel was neither “totally absent” nor “prevented from assisting” Linder. 

Rather, the record demonstrates that it was counsel’s belief that he had, and was, 

advocating for the best possible outcome for Linder based on his confidential 

communications with Linder and the evidence the state had against him. Thus, we will 

review to determine whether Linder suffered prejudice because of counsel’s performance. 

{¶27} That is, a reviewing court will not deem counsel’s performance ineffective 

unless the defendant can demonstrate that counsel’s performance fell below an objective 

standard of reasonable representation and that prejudice arose from the lawyer’s deficient 

performance. Strickland at 687-688; State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 

N.E.2d 373 (1998). The Ohio Supreme Court has held that “judicial scrutiny of 

counsel’s performance is to be highly deferential and that reviewing courts must refrain 

from second-guessing the strategic decisions of trial counsel.” State v. Carter, 72 Ohio 

St.3d 545, 558, 651 N.E.2d 965 (1995). 

{¶28} Furthermore, in reviewing an ineffective assistance of counsel claim when a 

defendant was represented by retained counsel, as was the case here, it has been held that 

the test is “whether the accused, under all the circumstances including the fact that he had 

retained counsel, had a fair trial and substantial justice was done.” State v. Hester, 45 

Ohio St.2d 71, 80, 341 N.E.2d 304 (1980). 
{¶29} In light of above, we review the plea to determine counsel’s performance in 

representing Linder at that proceeding. The record demonstrates that both prior to the 

plea and during the plea proceeding counsel advocated on Linder’s behalf. The record 

also demonstrates that the trial court fully complied with all the Crim.R. 11 requirements 

in taking his plea. Appellant indicated that he understood the rights he was waiving, that 

he was freely and voluntarily waiving them, and the possible penalties that could result 

from the plea. He further indicated that he was satisfied with his counsel. 

{¶30} Moreover, in addition to not raising any concerns about his plea at the actual 

plea hearing, Linder told the court at the hearing on his pro se motions that it was his 

parents, not counsel, who forced him to take the plea: “I was basically forced to * * * take 

the deal, not by [counsel] but by my mother and father. I told them I did not want to 

take the deal. I wanted to go to trial.” But, again, Linder never raised any concern at 

the plea hearing. 

{¶31} Therefore, in reviewing for an abuse of discretion,2

 we find no such abuse 

in the trial court’s decision to deny Linder’s presentence motion to withdraw his plea. 

And for the reasons already discussed, we find that counsel was not ineffective in his 

representation of Linder. 

{¶32} In his second assignment of error, Linder contends that the trial court abused 

its discretion by not disqualifying counsel. In line with what we have stated above, we 

hold that counsel’s representation of Linder at the hearing on the motion to withdraw the 

 2

See State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). 
plea was proper. However, as counsel himself admitted in regard to sentencing, it was 

“hard to stand here in front of you and make [a] claim [of Linder’s remorse] after the 

hearing that we just had.” And even though counsel still advocated on behalf of Linder, 

we nonetheless find that, under the circumstances of this case, counsel should have been 

disqualified from representing Linder at sentencing. 

{¶33} Therefore, the first assignment of error is overruled and the second 

assignment of error is sustained only as it relates to sentencing. The plea is upheld, but 

the case is remanded for resentencing with new counsel. 

{¶34} Affirmed in part; remanded in part for further proceedings consistent with 

this opinion. 

It is ordered that appellant and appellee split the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

LARRY A. JONES, SR., JUDGE 

KATHLEEN ANN KEOUGH, P.J., and 

ANITA LASTER MAYS, J., CONCUR