[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 Appellee 
Case No. 1-20-23 

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ZIMMERMAN, J. 

{¶1} Defendant-appellant, Andrew L. Smith, (“Smith”) appeals the April 24, 

2020 judgment entry of sentencing of the Allen County Common Pleas Court, 

General Division. For the reasons that follow, we affirm. 

{¶2} On March 14, 2019, the Allen County Grand Jury indicted Smith on 

three criminal counts including: Count One of Aggravated Robbery in violation of 

R.C. 2911.01(A)(1), (C), a first-degree felony; Count Two of Carrying a Concealed 

Weapon in violation of R.C. 2923.12(A)(2), (F)(1), a fourth-degree felony; and 

Count Three of Having Weapons While Under Disability in violation of R.C. 

2923.13(A)(2), (B), a third-degree felony. (Doc. No. 5). On March 22, 2019, the 

trial court appointed an attorney to represent Smith wherein Smith 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 hearing with 

the understanding that Smith and the State had reached an agreement whereby Smith 

would enter guilty pleas to all counts in the indictment with the 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 had 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 to 
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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 February 

27, 2020, wherein the trial court held a hearing on February 27, 2020 following a 

disagreement that arose between Smith and his trial counsel during 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, 128, 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 Count Two, and a 30-

month prison term as to Count Three for an aggregate prison term of 9 years and 30 

months. (Apr. 24, 2020 Tr. at 19-20); (Doc. Nos. 136, 162). The trial court ordered 

the 12-month (Count Two) and 30-month (Count Three) prison terms to run 

concurrently to one another, and consecutive to the 9-year prison 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. (Apr. 24, 2020 Tr. at 22); (Doc. No. 136). 
Case No. 1-20-23 

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{¶7} Smith filed his notice of appeal on May 26, 2020 raising one assignment 

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 court erred 

by failing to permit him to discharge his second court-appointed-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 such 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 Ohio 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 in the attorneyclient relationship of such magnitude as to jeopardize the defendant’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 

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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 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.”’” 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 right to have a particular 

attorney represent him and therefore must demonstrate ‘good cause’ 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 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.”’ 
Case No. 1-20-23 

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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, the court must balance 

“the accused’s right to counsel of his choice [against] the public’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 decision regarding the 

substitution of counsel. Id., citing Jones at 343, citing Deal at syllabus. The abuseof-discretion standard implies that the court acted unreasonably, 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 trial. (Feb. 27, 2020 

Tr.); (Mar. 2, 2020 Tr.); (Doc. Nos. 158, 159). Further, even if we assume without 

deciding that Smith requested new counsel at the hearing on February 27, 2020, 

Smith’s argument fails. 

{¶12} At the February 27, 2020 hearing, Smith never informed the trial court 

that his trial counsel failed to meet with him to discuss his case or to keep him 

apprised of the proceedings. On the contrary, disagreements occurred over 

discussions regarding strategy and trial preparation (while viewing video evidence 
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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 disrupted by Smith’s 

behavior (in a courtroom adjacent to the attorney-client conference room and 

holding cell), the trial court was alerted of the situation, and 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 obstructionist conduct (exhibited 

exclusively during discussions related to trial strategy), which 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 reason for 

his lack of confidence in his trial counsel. Rather, the record reveals that Smith had 

a propensity for combative behavior towards trial counsel (in general) 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 dismissal 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 posed 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 multiple interpretations. (Feb. 27, 2020 Tr. at 8-

11); (Doc. No. 158). 
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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 to ‘see eye to eye’ 

regarding trial strategy is an insufficient basis for removal of 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 defense are insufficient 

to justify the withdrawal of appointed counsel.”). 

“‘A lawyer has a duty to give the accused an honest appraisal of 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 in the record that 
Case No. 1-20-23 

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Smith’s behavior interfered with the preparation and presentation 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 disagreement between Smith 

and his trial counsel. Accordingly, Smith has failed to demonstrate the “good cause” 

warranting substitution of trial counsel. Consequently, based upon the facts 

presented, we cannot conclude that the trial court abused its discretion by declining 

to discharge and substitute Smith’s court-appointed attorney one week before trial. 

{¶15} Accordingly, Smith’s sole assignment of error is overruled. 

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

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

WILLAMOWSKI, P.J. and SHAW, J., concur. 

/jlr