[Cite as State v. Johnson, 185 Ohio App.3d 654, 2010-Ohio-315.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HANCOCK COUNTY 

 

The STATE OF OHIO, 

 APPELLEE, CASE NO. 5-09-28 

 v. 

JOHNSON, O P I N I O N 

 APPELLANT. 

 

Appeal from Hancock County Common Pleas Court 

Trial Court No. 2009-CR-0017 

Judgment Reversed and Cause Remanded 

Date of Decision: February 1, 2010 

 

APPEARANCES: 

Mark C. Miller and Drew A. Wortman, for appellee. 

Robert E. Searfoss III, for appellant. 

 
Case No. 5-09-28 

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WILLAMOWSKI, Presiding Judge. 

{¶1} Defendant-appellant, Brett Johnson, brings this appeal from the 

judgment of the Court of Common Pleas of Hancock County. For the reasons set 

forth below, the judgment is reversed. 

{¶2} On January 27, 2009, Johnson was indicted on two counts of 

trafficking in cocaine, in violation of R.C. 2925.03(A), fifth-degree felonies. 

Johnson entered a plea of not guilty on April 8, 2009. On May 12, 2009, a 

change-of-plea hearing was held. Johnson’s attorney, Kenneth J. Sass, notified the 

court at the hearing that there was a potential conflict of interest because the 

confidential informant was a former client of Sass’s. The trial court then engaged 

in a dialogue with Johnson concerning the conflict. Johnson indicated that he 

wished to waive the conflict and proceeded to change his plea to one of guilty. On 

July 13, 2009, the trial court sentenced Johnson to a total prison term of 22 

months. Johnson now appeals the judgment and raises the following assignment 

of error. 

The trial court violated [Johnson’s] right to assistance of 

counsel as provided by the Sixth Amendment to the United State[s] 

Constitution by failing to either appoint separate counsel or to 

inquire into the existence of an actual conflict of interest despite 

knowledge of a potential conflict of interest held by [Johnson’s] trial 

counsel. 

{¶3} The sole assignment of error alleges that the trial court erred by not 

appointing different counsel when a conflict-of-interest issue was raised, thus 
Case No. 5-09-28 

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denying him effective assistance of counsel. The Ohio Supreme Court has dealt 

with the issue of conflict of interest by defense counsel in State v. Gillard (1992), 

64 Ohio St.3d 304, 595 N.E.2d 878. In Gillard, the defendant was represented by 

an attorney who also represented a witness, in a pending matter. Although the 

attorney did not believe there was a conflict of interest and the parties expressed a 

waiver of any conflict, the Ohio Supreme Court reversed the decision and 

remanded for the trial court to hold a hearing to determine whether an actual 

conflict of interest existed. In doing so, the Ohio Supreme Court stated as 

follows. 

In [Holloway v. Arkansas (1978), 435 U.S. 475, 98 S.Ct. 

1173, 55 L.Ed.2d 426], the United States Supreme Court concluded 

that defense counsel’s repeated objections to the joint 

representation, accompanied by his assertions of a risk of conflict of 

interest, required the state trial court to either appoint separate 

counsel or ascertain whether the risk of conflict was too remote to 

warrant the appointment of separate counsel. Id. at 484, 98 S.Ct. at 

1178, 55 L.Ed.2d at 434. The court held that the state trial court’s 

failure to inquire into the risk of conflict unconstitutionally 

endangered the defendants’ Sixth Amendment right to counsel and 

required reversal of the defendants’ convictions whether or not an 

actual conflict of interest existed, and whether or not prejudice 

could be shown. Id. at 487-491, 98 S.Ct. at 1180-1182, 55 L.Ed.2d 

at 436-438. 

Cuyler v. Sullivan [1980, 446 U.S. 335, 100 S.Ct. 1709, 64 

L.Ed.2d 333] is another case involving multiple representation. 

Sullivan, supra, stands for the proposition that the duty imposed in 

Holloway, supra, for a state trial court to inquire into the possibility 

of conflicts of interest posed by multiple representation only arises 

in cases where the trial judge knows or reasonably should know that 

a possible conflict of interest exists. Id. 446 U.S. at 346-347, 100 
Case No. 5-09-28 

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S.Ct. at 1717, 64 L.Ed.2d at 345-346. See, also, [Wood v. Georgia

(1981), 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220]. Thus, the 

duty to inquire into the possible conflicts of interest posed by joint 

representation of codefendants may arise even though no party to 

the proceeding specifically objects to the multiple representation. 

* * * 

In Wood, supra, former employees of an adult movie theater 

and bookstore were convicted for distributing obscene materials in 

violation of a Georgia statute. The employees received fines and 

jail sentences for their activities, but were placed on probation with 

the condition that they make regular installment payments toward 

satisfaction of the fines. When the employees failed to make the 

required payments, the matter proceeded to a probation revocation 

hearing where the employees offered evidence that they were unable 

to pay the fines and expected that their former employer would do 

so. At this hearing, the state raised the issue that the employees’ 

attorney was hired by the former employer and, therefore, a possible 

conflict of interest existed. The trial court did not inquire into the 

alleged conflict and ordered revocation of the probations if 

arrearages were not paid within five days. Unable to make such 

payments, the employees moved to modify the conditions of their 

probation. The trial court denied this motion and ordered the 

employees to serve the remaining portions of their jail sentences. 

The Georgia Court of Appeals affirmed and the United States 

Supreme Court granted certiorari to determine whether the 

imprisonment of the employees solely because of their inability to 

make the installment payments violated equal protection guarantees. 

In Wood, supra, the United States Supreme Court, sua sponte, 

raised the issue concerning the possibility of a conflict of interest, 

stating that “[w]here, as here, a possible due process violation is 

apparent on the particular facts of a case, we are empowered to 

consider the due process issue.” Id. at 450 U.S. at 264-265, 101 

S.Ct. at 1100, 67 L.Ed.2d at 226. Based upon a review of the 

record, the court was unable to conclude whether the employees’ 

attorney labored under an actual conflict of interest, but the court 

nevertheless held that “* * * the record does demonstrate that the 

possibility of a conflict of interest was sufficiently apparent at the 
Case No. 5-09-28 

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time of the [probation] revocation hearing to impose upon the [trial] 

court a duty to inquire further.” Id. at 272, 101 S.Ct. at 1104, 67 

L.Ed.2d at 230-231. The court also found that any doubt as to 

whether the trial court should have been aware of the conflict-ofinterest problem was dispelled by the fact that the state explicitly 

raised the issue at the probation revocation hearing and requested 

that the trial court look into it. Id. at 272-273, 101 S.Ct. at 1104, 67 

L.Ed.2d at 231. Accordingly, the Wood majority vacated the 

judgment of the Georgia appellate court and remanded the cause for 

a determination by the state trial court whether an actual conflict of 

interest existed. Id. at 273-274, 101 S.Ct. at 1104, 67 L.Ed.2d at 

231. The court further ordered that if the state trial court 

determined, upon remand, that an actual conflict existed (and that 

there was no valid waiver of the right to independent counsel), the 

trial court must conduct a new revocation hearing free from 

conflicts of interest. Id. 

A review of Holloway, Sullivan and Wood, supra, clearly 

demonstrates that where a trial court knows or reasonably should 

know of an attorney’s possible conflict of interest in the 

representation of a person charged with a crime, the trial court has 

an affirmative duty to inquire whether a conflict of interest actually 

exists. The duty to inquire arises not only from the general 

principles of fundamental fairness, but from the principle that where 

there is a right to counsel, there is a correlative right to 

representation free from conflicts of interest. See, generally, Wood, 

supra. Where a trial court breaches its affirmative duty to inquire, a 

criminal defendant’s rights to counsel and to a fair trial are 

impermissibly imperiled and prejudice or “adverse effect” will be 

presumed. See, e.g., Holloway, Sullivan and Wood, supra. 

Although we cannot be sure that an actual conflict of interest 

existed, there is a clear possibility of conflict of interest on the facts 

of this case. * * * The trial court was constitutionally required to 

conduct an inquiry into the possible conflict of interest to determine 

whether appellant had received, and would receive, the right to 

conflict free counsel guaranteed him by the Sixth Amendment to the 

United States Constitution. 
Case No. 5-09-28 

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The argument has been raised herein that our review of the 

conflict-of-interest issue is limited to the plain error analysis of 

Crim.R. 52(B). This may be true but if a conflict of interest 

affecting appellant actually existed in this case, it would be clearly 

improper for us to speculate that the outcome of appellant’s trial 

would not have been different had appellant received representation 

free from conflicts of interest. We are keenly aware of the 

overwhelming evidence of appellant’s guilt, but it is our job to 

ensure that even this appellant receive the protections to which he is 

entitled. 

Gillard, 64 Ohio St.3d at 309-312, 595 N.E.2d 878. 

{¶4} This court has addressed the duty of the trial court to inquire into 

potential conflicts of interest in State v. McDuffie (May 23, 2001), 3d Dist. No. 9-

2000-92, 2001 WL 542114, and in State v. Myles (May 23, 2001), 3d Dist. No. 9-

2000-93, 2001 WL 542115. Both of these cases involved codefendants 

represented by one attorney. In those cases, this court affirmed the judgment 

because the trial court explained to the defendants that there was a conflict of 

interest, what this conflict could potentially mean to each of them, and that they 

both had the right to have separate counsel appointed for them. The trial court 

also advised the defendants that they had the right to change their minds and 

request separate counsel at any time. After being given this information, the 

defendants made an informed decision to waive the conflict of interest. 

{¶5} The duty to inquire, as set forth in Gillard, has been explained as 

follows. 
Case No. 5-09-28 

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“When reviewing a claim of conflict of interest, this court 

must resolve two distinct issues. The first issue is whether the trial 

court had a duty to investigate the potential conflict of interest. See 

[Gillard, 64 Ohio St.3d 304, 595 N.E.2d 878]. If the answer to that 

inquiry is affirmative and the trial court did not make such an 

inquiry, then the case must be remanded to the trial court for its 

inquiry as to whether an actual conflict of interest existed. Id. at 

312, 595 N.E.2d at 883. If the answer to that inquiry is negative, 

then this court must determine whether an actual conflict of interest 

adversely affected the attorney’s performance. State v. Manross 

(1988), 40 Ohio St.3d 180, 532 N.E.2d 735, syllabus, certiorari 

denied (1989), 490 U.S. 1083, 109 S.Ct. 2106, 104 L.Ed.2d 667.” 

State v. Walker (1998), 130 Ohio App.3d 247, 251, 719 N.E.2d 1042, quoting 

State v. Ingol (1993), 89 Ohio App.3d 45, 48, 623 N.E.2d 598. 

{¶6} In this case, the question of a potential conflict of interest was raised 

by defense counsel to the trial court, so the trial court and defense counsel were 

aware of the potential conflict. Thus, pursuant to Gillard, 64 Ohio St.3d 304, 595 

N.E.2d 878, the trial court had an affirmative duty to inquire as to whether an 

actual conflict of interest was present. A review of the record indicates that the 

trial court extensively discussed the effect of a waiver on the potential conflict of 

interest, but did not inquire as to whether an actual conflict of interest was 

present. The trial court also did not inform Johnson that he could have a new 

attorney if he so wished. Without more information concerning the circumstances 

of the conflict, this court cannot ascertain whether the waiver was sufficient. This 

is especially true with regard to whether or not it was necessary to advise Johnson 
Case No. 5-09-28 

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that another attorney would be appointed for him if Johnson was not comfortable 

with the potential conflict as laid out by the court. 

{¶7} For example, if the representation of the informant was several 

years earlier and on a matter entirely unrelated to the present case, there might 

well be no actual conflict of interest and hence no need for any admonishment. 

On the other hand, if the representation of the informant was related to matters 

that led to the current charges against the defendant, there might be a conflict 

significant enough to override even the most thorough of admonishments. Thus, 

the trial court, in this case, needed to inquire into the prior representation of the 

confidential informant to determine the required scope of the waiver, or whether 

new counsel was required. Having failed to conduct this inquiry in this case, the 

trial court did not comply with the requirements of Gillard, 64 Ohio St.3d 304, 

595 N.E.2d 878. 

{¶8} Pursuant to Gillard, the matter must be reversed and remanded for 

the trial court to hold a hearing to determine whether an actual conflict of interest 

existed. Id. at 312. If a conflict of interest is found, the trial court must then 

conduct a new trial free from conflicts of interest. Id. However, if no actual 

conflict of interest is found, then no new trial is necessary. Id. For the reasons set 

forth above, the assignment of error is sustained. 
Case No. 5-09-28 

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{¶9} The judgment of the Court of Common Pleas of Hancock County is 

reversed, and the matter is remanded for further proceedings. 

Judgment reversed 

and cause remanded. 

SHAW and PRESTON, JJ., concur. 

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