[Cite as State v. Smith , 2021-Ohio-469.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 1-20-23

v. ANDREW L. SMITH, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR2019 0074 Judgment Affirmed Date of Decision: February 22, 2021

APPEARANCES:



### William T. Cramer for Appellant 

### Jana E. Emerick for AppelleeCase No. 1-20-23

-2- ZIMMERMAN, J. {¶1} Defendant-appellant, Andrew L. Smith, (“Smith”) appeals the Apr il 24, 2020 judgment entry of sentencing of the Allen County Common Pl eas Court, General Division. For the reasons that follow, we affirm. {¶2} On March 14, 2019, the Allen County Grand Jury indicted Smith o n three criminal counts including: Count One of Aggravated Robbe ry in violation of R.C. 2911.01(A)(1), (C), a first-degree felony; Count Two of Ca rrying a Concealed Weapon in violation of R.C. 2923.12(A)(2), (F)(1), a fourth-deg ree felony; and Count Three of Having Weapons While Under Disability in violati on of R.C. 2923.13(A)(2), (B), a third-degree felony. (Doc. No. 5). On M arch 22, 2019, the trial court appointed an attorney to represent Smith wherein Sm ith entered not guilty pleas to all counts in the indictment. (Doc. Nos. 10, 11). {¶3} On September 20, 2019, the trial court held a final pre-trial h earing with the understanding that Smith and the State had reached an agree ment whereby Smith would enter guilty pleas to all counts in the indictment with t he State agreeing to merge Counts Two and Three for sentencing. (Sept. 20, 2019 Tr. at 1-2); (Doc. No. 155). However, at the hearing, Smith denied entering into the plea agreement and requested a new lawyer on the basis that he and his attorney ha d reached an impasse as a result of their working relationship. ( Id. at 1-12); ( Id. ). Thereafter, Smith’s court-appointed attorney requested leave to withdraw as counsel of record and toCase No. 1-20-23

-3- continue the trial. ( Id. ). The trial court granted the requests, and appointed a new lawyer to represent Smith. ( Id. at 15-39); (Doc. Nos. 74, 76, 155). {¶4} Smith’s new counsel represented him without incident until Febr uary 27, 2020, wherein the trial court held a hearing on February 27 , 2020 following a disagreement that arose between Smith and his trial counsel dur ing an attorneyclient conference. (Feb. 27, 2020 Tr.); (Doc. No. 158). After that hearing, Smith’s counsel continued his representation of Smith. {¶5} The case proceeded to a jury trial on March 9-10, 2020. (Mar. 9 , 2020 Tr.); (Mar. 10, 2020 Tr.); (Doc. Nos. 160, 161). On March 10, 2020, the jury found Smith guilty of Counts One, Two, and Three. (Doc. Nos. 127, 12 8, 129). The trial court filed its judgment entry of conviction on March 11, 2020. (Doc. No. 136). {¶6} On April 24, 2020, the trial court sentenced Smith to a term of nine years in prison as to Count One, 12-month prison term as to Cou nt Two, and a 30- month prison term as to Count Three for an aggregate prison ter m of 9 years and 30 months. (Apr. 24, 2020 Tr. at 19-20); (Doc. Nos. 136, 162). T he trial court ordered the 12-month (Count Two) and 30-month (Count Three) prison term s to run concurrently to one another, and consecutive to the 9-year pris on term under Count One. The trial court filed its judgment entry of sentence the same day. 1 (Doc. No. 136).

1 The trial court granted Smith 442 days’ jail-time credit. (Ap r. 24, 2020 Tr. at 22); (Doc. No. 136).Case No. 1-20-23

-4- {¶7} Smith filed his notice of appeal on May 26, 2020 raising one as signment of error for our review. (Doc. No. 142). Assignment of Error The trial court erred by failing to appoint new counsel after a breakdown in communication that threatened the effectiveness of counsel. {¶8} In his sole assignment of error, Smith argues that the trial co urt erred by failing to permit him to discharge his second court-appointe d-trial counsel, and thus, be appointed a third trial counsel one week before trial. Specifically, Smith argues that since their relationship suffered a breakdown of su ch magnitude, it

rendered his trial counsel ineffective. Standard of Review {¶9} The United States Constitution guarantees a criminal defendant the right to assistance of counsel for his defense under the Sixth Amendment. State v.

Lane , 3d Dist. Union No. 14-20-04, 2020-Ohio-6798, ¶ 13, citing Ohi o Constitution, Article I, Section 10. The Supreme Court of Ohio has held that in order to discharge court-appointed counsel, a defendant must show “‘“a breakdown i n the attorneyclient relationship of such magnitude as to jeopardize the defe ndant’s right to

effective assistance of counsel.”’” Id. , quoting State v. Coleman , 37 Ohio St.3d 286, 292 (1988), quoting People v. Robles , 2 Cal.3d 205, 215, 85 Cal.Rptr. 166, 466 P.2d 710, 717 (1970). We review a trial court’s decision as to the discharge of court-Case No. 1-20-23

-5- appointed counsel under an abuse-of-discretion standard. Id. , citing State v. Cook , 3d Dist. Union No. 14-10-05, 2010-Ohio-4814, ¶ 12; Coleman at 292; State v.

Cowans , 87 Ohio St.3d 68, 73 (1999), citing United States v. Iles , 906 F.2d 1122 (6th Cir.1990), fn. 8. {¶10} “‘“[W]hile the right to select and be represented by one’s pref erred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate * * * rather th an to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.”’” Id. at ¶ 14, quoting State v. Jones , 91 Ohio St.3d 335, 342 (2001), quoting Wheat v. United

States , 486 U.S. 153, 159, 108 S.Ct. 1692, 1698 (1988). The Supreme Court of Ohio has recognized that “‘“[a]n indigent defendant has no righ t to have a particular attorney represent him and therefore must demonstrate ‘good cau se’ to warrant

substitution of counsel.”’” Id. , quoting Cowans at 72, quoting Iles at 1130. If the defendant’s request for substitution of counsel is unreasonable , a trial judge may deny the request. Id. , citing State v. Conway , 108 Ohio St.3d 214, 2006-Ohio-791, ¶ 148, citing State v. Deal , 17 Ohio St.2d 17 (1969), syllabus. ‘Factors to consider in deciding whether a trial court erred in denying a defendant’s motion to substitute counsel include “the timelin ess of the motion; the adequacy of the court’s inquiry into the defend ant’s complaint; and whether the conflict between the attorney and cl ient was so great that it resulted in a total lack of communication preventing an adequate defense.”’Case No. 1-20-23

-6- Id. , quoting Jones at 342, quoting United States v. Jennings , 83 F.3d 145, 148 (6th Cir.1996). “‘In evaluating a request for substitute counsel, t he court must balance “the accused’s right to counsel of his choice [against] the pub lic’s interest in the prompt and efficient administration of justice.”’” Id. , quoting State v. Clemons , 6th Dist. Lucas No. L-01-1445, 2002-Ohio-5906, ¶ 10, quoting Jennings at 148. We apply an abuse-of-discretion standard to the trial court’s deci sion regarding the

substitution of counsel. Id. , citing Jones at 343, citing Dealat syllabus. The abuseof-discretion standard implies that the court acted unreasonabl y, arbitrarily, or unconscionably. State v. Adams , 62 Ohio St.2d 151, 157-158 (1980). Analysis {¶11} Importantly, Smith never requested the trial court to discharge his second trial counsel or to appoint him new counsel prior to tri al. (Feb. 27, 2020 Tr.); (Mar. 2, 2020 Tr.) ; (Doc. Nos. 158, 159) . Fur ther, even if we assume without deciding that Smith requested new counsel at the hearing on Feb ruary 27, 2020, Smith’s argument fails. {¶12} At the February 27, 2020 hearing, Smith never informed the tria l court

that his trial counsel failed to meet with him to discuss his c ase or to keep him apprised of the proceedings. On the contrary, disagreements oc curred over discussions regarding strategy and trial preparation (while vie wing video evidenceCase No. 1-20-23

-7- at the courthouse) that escalated into Smith’s verbal abuse of his trial counsel. 2 (Feb. 27, 2020 Tr. at 1-9). After an unrelated hearing was dis rupted by Smith’s behavior (in a courtroom adjacent to the attorney-client confer ence room and holding cell), the trial court was alerted of the situation, an d convened an impromptu hearing to address these circumstances. ( Id. at 1-2). Upon inquiry by the trial court, trial counsel expressed his frustration over Smith’s obstructio nist conduct (exhibited exclusively during discussions related to trial strategy), whic h thwarted trial counsel’s ability to collaboratively strategize with Smith. ( Id. at 13-15). {¶13} Here, the record reveals that Smith did not have a legitimate r eason for his lack of confidence in his trial counsel. Rather, the recor d reveals that Smith had a propensity for combative behavior towards trial counsel (in g eneral) when strategies diverged from the direction Smith believed his case should proceed. (Feb. 27, 2020 Tr. at 21); (Mar. 2, 2020 Tr. at 6-8); (Doc. Nos. 158, 159). ( See Sept. 20, 2019 Tr. at 3-25); (Doc. No. 155). State v. Evans , 153 Ohio App.3d 226, 2003- Ohio-3475, ¶ 31 (7th Dist.) (“There must be a legitimate reason for the defendant’s lack of confidence in the attorney because good cause for dismi ssal cannot be determined solely according to the subjective standard of what the defendant perceives.”), citing State v. Julious , 4th Dist. Scioto No. 96CA2409, 1996 WL

2 Smith’s trial counsel also expressed a concern that Smith pose d a physical threat to him; however, after the trial court conferred with the State (who was present when the allegedly threating behavior occurred), the trial court determined that Smith’s behavior was subject to mul tiple interpretations. (Feb. 27, 2020 Tr. at 8- 11); (Doc. No. 158).Case No. 1-20-23

-8- 718262, *2 (Dec. 5, 1996). Indeed, “[m]erely because appointed counsel’s trial tactics or approach may vary from that which appellant views as prudent is not

sufficient to warrant the substitution of counsel.” State v. Glasure , 132 Ohio App.3d 227, 239 (7th Dist.1999). See also State v. Stein , 3d Dist. Mercer No. 10-17-13, 2018-Ohio-2345, ¶ 29 (“‘Defendant and trial counsel’s failure t o ‘see eye to eye’ regarding trial strategy is an insufficient basis for removal o f appointed counsel.’”), quoting State v. Hill , 8th Dist. Cuyahoga No. 105554, 2018-Ohio-279, ¶ 11, and citing State v. Crew , 8th Dist. Cuyahoga No. 86943, 2006-Ohio-4102, ¶ 17 (“Hostility, tension, or personal conflict between an attorney and a client that do not interfere with the preparation or presentation of a competent d efense are insufficient to justify the withdrawal of appointed counsel.”). “‘A lawyer has a duty to give the accused an honest appraisal o f his case. * * * Counsel has a duty to be candid; he has no duty to be optimistic when the facts do not warrant optimism.’” Brown v. United States (C.A.D.C.1959), 264 F.2d 363, 369 (en banc), quoted in McKee v. Harris (C.A.2, 1981), 649 F.2d 927, 932. “‘If the rule were otherwise, appointed counsel could be replaced for doing little more than giving their clients honest advice.’” McKee , 649 F.2d at 932, quoting McKee v. Harris (S.D.N.Y.1980), 485 F.Supp. 866, 869.

Cowans , 87 Ohio St.3d at 73. The record reveals that any barrier in communication between Smith and his attorney was self-imposed as a result of Smith’s hostility and tension when presented with an honest appraisal of his case by counsel. (Feb. 27, 2020 Tr. at 21); (Mar. 2, 2020 Tr. at 6-8); (Doc. Nos. 158, 159 ). ( See Sept. 20, 2019 Tr. at 3-25); (Doc. No. 155). Moreover, there is no evidence i n the record thatCase No. 1-20-23

-9- Smith’s behavior interfered with the preparation and presentati on of a competent defense at trial. ( See March 9, 2020 Tr.); (March 10, 2020 Tr.); (Doc. Nos. 160, 161). {¶14} Based on our review of the record and considering the Jennings factors, we cannot conclude that there was a complete breakdown in communication (necessitating discharge), but rather, a trial-strategy disagre ement between Smith and his trial counsel. Accordingly, Smith has failed to demons trate the “good cause” warranting substitution of trial counsel. Consequently, based upon the facts presented, we cannot conclude that the trial court abused its d iscretion by declining to discharge and substitute Smith’s court-appointed attorney on e week before trial. {¶15} Accordingly, Smith’s sole assignment of error is overruled. {¶16} Having found no error prejudicial to the appellant herein in th e particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed WILLAMOWSKI, P.J. and SHAW, J., concur. /jlr