[Cite as State v. Corder, 2017-Ohio-7039.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 17AP-24 

v. : (C.P.C. No. 15CR-1376)

Steven L. Corder, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

N U N C P R O T U N C1 

D E C I S I O N 

Rendered on August 1, 2017 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Valerie B. 

Swanson, for appellee. Argued: Valerie B. Swanson. 

On brief: Blaise G. Baker, for appellant. Argued: Blaise G. 

Baker.

 

APPEAL from the Franklin County Court of Common Pleas 

BRUNNER, J. 

{¶ 1} Defendant-appellant, Steven L. Corder, appeals a judgment entered by the 

Franklin County Court of Common Pleas on January 10, 2017, sentencing him to serve ten 

years in prison. Because we find that the trial court failed to make the required inquiry on 

Corder's specific complaints regarding his counsel, we reverse and remand to the trial court 

so it can make the necessary inquiry. In the event Corder's complaints prove unfounded, 

the trial court may re-enter judgment on the previously rendered verdicts. However, if the 

court finds that such complaints are well-taken, the court shall hold a new trial on Counts 1 

and 5 (if the prosecution elects to retry the case). 

 

1 We issue this decision, nunc pro tunc, to correct minor typographical errors in our July 27, 2017 decision in 

paragraph 24. 
2 

No. 17AP-24 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} A Franklin County Grand Jury indicted Corder on March 20, 2015 for three 

counts of gross sexual imposition, one count of rape of a minor less than 13 years of age, 

and one count of unlawful sexual conduct with a minor. (Mar. 20, 2015 Indictment.) 

Following a jury trial on the rape count and the three gross sexual imposition counts, the 

jury found Corder guilty of the first count of gross sexual imposition and not guilty of all 

remaining counts. (Jan. 6, 2017 Verdict Forms.) The unlawful sexual conduct count was 

separately tried to the bench and the trial court found Corder guilty of that offense. (Jan. 6, 

2017 Bench Verdict Form.) 

{¶ 3} In November 2015, over a year before the case went to trial, the trial court 

held a hearing during which Corder decided to reject a plea deal that was to have resulted 

in a five-year sentence. That hearing ended as follows: 

THE COURT: Okay. Let me tell you how it works in my court 

just before you make such a determination. You go to trial and 

there's a jury, you're going for life.2 If there's a joint rec. by 

counsel, even if I can't stomach it, I agree to it. 

So you go back and you think of what they said, five years or the 

rest of your life and we'll see you for trial, okay? 

THE DEFENDANT: All right. 

[DEFENSE COUNSEL]: He also wants to fire me, Judge. 

THE COURT: You don't get to fire him. 

Next. 

[DEFENSE COUNSEL]: Thank you, Judge. 

(Tr. at 5-6, filed Apr. 7, 2017.) 

 

2 Although Corder was not ultimately convicted of an offense that would have permitted the trial court to 

impose life and this is not raised as an issue in this appeal, we note that the Supreme Court of Ohio has said: 

"To punish a person because he has done what the law plainly allows him to do is a due 

process violation of the most basic sort * * *." Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 

S.Ct. 663, 54 L.Ed.2d 604 (1978), citing North Carolina v. Pearce, 395 U.S. 711, 738, 89 S.Ct. 

2072, 23 L.Ed.2d 656 (1969) (Black, J., concurring in part and dissenting in part). There is 

no question, then, that a sentence vindictively imposed on a defendant for exercising his 

constitutional right to a jury trial is contrary to law. See State v. O'Dell, 45 Ohio St.3d 140, 

147, 543 N.E.2d 1220 (1989). 

State v. Rahab, __ Ohio St.3d __, 2017-Ohio-1401, ¶ 8 (Slip Opinion) 
3 

No. 17AP-24 

{¶ 4} Following that hearing, Corder filed three pro se motions on July 21, 

October 21, and December 19, 2016. In the first such motion, Corder sought to have his 

appointed counsel removed for alleged deficient performance, specifically: (1) failure to 

obtain employment verification, (2) failure to obtain text messages, phone records, 

(3) failure to obtain parole board violation hearing results from December 2014, and 

(4) failure to communicate, failure to answer phone calls and return phone calls, lack of 

communication. (July 21, 2016 Mot. to Dismiss Counsel.) In the second motion, Corder 

sought to have the same counsel removed on similar grounds: (1) failure to discuss trial 

tactics and questions, (2) failure to obtain text messages and or phone records, (3) failure 

to communicate, failure to answer phone calls and/or return phone calls, lack of 

communication, (4) failure to discuss discovery findings and results, and (5) failure to 

obtain parole board violation hearing results from December 2014. (Oct. 21, 2016 Mot. to 

Dismiss Counsel.) In the third motion, Corder sought to disqualify Judge Lynch for failure 

to consider removing ineffective counsel and substituting different counsel. (Dec. 19, 2016 

Mot. to Disqualify.) 

{¶ 5} The trial court never ruled on these motions before trial in January 2017 and 

stated during trial, "I don't read your motions. You're represented by counsel, so when I 

get something from you, I don't read it, 'cause that's why you have counsel." (Tr. at 15.) 

However, the trial court did note, prior to jury selection on the first day of trial: 

THE COURT: Mr. Corder, I asked for you to be brought out 

early just because I realized you've had some stress over this, 

stress between me, stress between your lawyers, stress between 

all of this. But you do know that the Disciplinary Counsel did 

deny -- 

THE DEFENDANT: Yes. 

THE COURT: -- your case. So we're set to go and I'm going to 

be your judge. We're set to go. He's going to be your lawyer. 

(Tr. at 7.) 

{¶ 6} During the course of the trial, four witnesses testified – Ja.S. (the alleged 

victim) who was age 12 to 13 at the time of the alleged crimes and age 15 at the time of trial, 

J.S. (Ja.S.'s mother), Corder's girlfriend, and a police detective. 
4 

No. 17AP-24 

{¶ 7} J.S. testified that she found posters in Ja.S.'s room which said, "I love Steven 

Corder." (Tr. at 53.) She also said that Ja.S. frequently followed Corder around during the 

Summer and Fall 2014 and would defend him if anyone spoke badly about him. (Tr. at 58-

59.) Following a conversation with her daughter about activities between her and Corder, 

J.S. took Ja.S. to Children's Hospital where she was interviewed. (Tr. at 55.) However, 

Ja.S. apparently did not disclose anything to Children's Hospital and declined to be 

examined. Id. J.S. also testified that in 2014, Ja.S. began having emotional problems and 

was cutting herself. (Tr. at 45-46.) 

{¶ 8} Ja.S testified that any time she was alone with Corder he would rub her 

breasts and butt and stick his fingers in her vagina. (Tr. at 70-72, 165.) She related that she 

failed seventh grade twice and was cutting herself because Corder molested her. (Tr. at 66-

67.) She said that on one occasion Corder rubbed his penis in her unclothed vagina. (Tr. 

at 76-77, 151-59.) She was more specific about this event when testifying directly to the 

bench (regarding the allegations of unlawful sexual conduct) without the jury present. Id. 

In that recitation, she even alleged that Corder's girlfriend walked in during this event and 

witnessed it, asking Corder something to the effect of "[w]hy are you screwing my cousin?" 

(Tr. at 156.) 

{¶ 9} However, Ja.S.'s testimony was vague about what Corder allegedly did to her 

and when or where he allegedly did it. She denied having posters which said "I love Steven 

Corder." (Tr. at 94.) Though she repeatedly insisted her failure to report these incidents 

was because she was scared, she admitted that no one blamed her, punished her, yelled at 

her, or failed to take her allegations seriously. (Tr. at 95-97.) 

{¶ 10} Corder's girlfriend testified that Corder and Ja.S. followed each other around. 

(Tr. at 118-19.) Based on Corder being ten years older than the child during the relevant 

time period, Corder's girlfriend believed this was inappropriate. (Tr. at 119.) She did not 

corroborate Ja.S.'s claim that she had walked in and found Corder with his penis on or in 

Ja.S.'s vagina. 

{¶ 11} When the detective testified, he stated he had worked as a police officer since 

1990 but that most of that time was as a patrol officer. (Tr. at 122.) In the past three and 

one-half to four years, he had begun working in the special victims unit. Id. He was not 
5 

No. 17AP-24 

formally voir dired or qualified as an expert. Nevertheless, he testified without objection in 

the following ways: 

A. Well, juveniles, I think what you're trying to get at is mainly 

they don't disclose as much as adults do. 

Q. Well, just tell me some of your experiences, your personal 

experiences as a detective based on your training and 

knowledge in investigating these kind of cases. 

A. Yeah. Adults, when something happens, they tend to tell you 

right away, not always, for the most part. Juveniles, they don't 

disclose -- we have -- a lot of our cases, they don't disclose sex 

abuse until weeks, months, years later. 

(Tr. at 123.) He also testified that despite not revealing substantially anything to Children's 

Hospital, Ja.S. opened up a bit more to him, which is what precipitated charges being 

brought. (Tr. at 136-37.) Of particular relevance to this appeal, he testified: 

She seemed a little timid, which is only natural for a victim. She 

was a little more forthcoming than the initial interview at the 

CAC [Children's Advocacy Center at Children's Hospital]. At 

the CAC she appeared to be holding back a little bit, she didn't 

want to tell everything. When I talked to her in my car, she 

seemed timid but she seemed to let loose with a little more 

information. 

(Tr. at 133.) He also testified that he saw a snapshot of Ja.S.'s phone where something about 

"love Steven Corder" was written on it. (Tr. at 148.) However, he did not preserve that 

evidence. (Tr. at 145-46, 148.) He also admitted there was no physical evidence in the case. 

(Tr. at 145.) 

{¶ 12} Following the verdicts of the jury and the bench finding Corder guilty of one 

count of gross sexual imposition and one count of unlawful sexual conduct with a minor, 

the trial court reconvened for sentencing on January 9, 2017. (Tr. at 214-16, 219.) The trial 

court imposed consecutive sentences; it imposed two years on the gross sexual imposition 

count and eight years on the unlawful sexual conduct count, which together added up to a 

total term of ten years in prison. (Tr. at 228; Jan. 10, 2017 Jgmt. Entry at 2.) Corder now 

appeals. 

II. ASSIGNMENTS OF ERROR 

{¶ 13} Corder assigns three errors for our review: 
6 

No. 17AP-24 

[1.] The trial court erred to the prejudice of DefendantAppellant by improperly sentencing him to consecutive terms 

of incarceration in contravention of Ohio's sentencing statutes. 

[2.] The trial court deprived Defendant-Appellant of his right 

to effective counsel as guaranteed by the Sixth Amendment to 

the United States Constitution. 

[3.] The trial court committed prejudicial error when it 

permitted [the] Detective * * * to testify as to the behavior of 

juveniles involved in sexual abuse cases. 

III. DISCUSSION 

A. Second Assignment of Error – Whether the Trial Court Erred in 

Refusing to Consider or Investigate Corder's Request to Dismiss His 

Counsel 

{¶ 14} The United States Supreme Court has explained that a defendant has a right 

to be represented by counsel of his or her choice and that deprivation of this right is 

structural error. United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 150 (2006). 

However, this right is nonetheless limited in a number of respects. As the Court has 

remarked: 

[T]he right to counsel of choice does not extend to defendants 

who require counsel to be appointed for them. Nor may a 

defendant insist on representation by a person who is not a 

member of the bar, or demand that a court honor his waiver of 

conflict-free representation. We have recognized a trial court's 

wide latitude in balancing the right to counsel of choice against 

the needs of fairness, and against the demands of its calendar. 

The court has, moreover, an "independent interest in ensuring 

that criminal trials are conducted within the ethical standards 

of the profession and that legal proceedings appear fair to all 

who observe them." 

(Citations omitted.) Id. at 151-52, quoting Wheat v. United States, 486 U.S. 153, 160 (1988), 

citing Caplin & Drysdale v. United States, 491 U.S. 617, 624 (1989); Wheat at 159-60, 163-

64; Morris v. Slappy, 461 U.S. 1, 11-12 (1983). Based on these principles, the Supreme 

Court of Ohio has explained that: 

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 
7 

No. 17AP-24 

between the attorney and client was so great that it resulted in 

a total lack of communication preventing an adequate 

defense." In addition, courts should "balance * * * the accused's 

right to counsel of his choice and the public's interest in the 

prompt and efficient administration of justice." Decisions 

relating to the substitution of counsel are within the sound 

discretion of the trial court. 

(Citations omitted.) State v. Jones, 91 Ohio St.3d 335, 342-43 (2001), quoting United States 

v. Jennings, 83 F.3d 145, 148 (6th Cir.1996), citing Wheat at 164. 

{¶ 15} The Supreme Court of Ohio has also clarified that a trial court's entire failure 

to carry out its duty to investigate a defendant's specific objection about his or her counsel's 

efficacy is grounds for reversal. State v. Deal, 17 Ohio St.2d 17, 18-20 (1969). Deal has been 

interpreted to justify reversal when a defendant makes specific allegations regarding his 

counsel's performance and the trial court fails to appropriately inquire: 

In the wake of Deal, Ohio's appellate courts have reversed 

convictions when trial courts fail to make on-the-record 

inquiries into specific objections about the performance of 

court-appointed counsel. Notably, however, courts have read 

Deal as imposing on a defendant the initial burden of 

articulating specific concerns about his appointed counsel. 

Absent specific objections to counsel's performance, the trial 

court has no duty to investigate anything. See, e.g., State v. 

Carter (1998), 128 Ohio App.3d 419, 715 N.E.2d 223 ("The 

defendant bears the burden of announcing the grounds for a 

motion for appointment of new counsel. If the defendant 

alleges facts which, if true, would require relief, the trial court 

must inquire into the defendant's complaint and make the 

inquiry part of the record * * *. [This] limited judicial duty 

arises only if the allegations are sufficiently specific; vague or 

general objections do not trigger the duty to investigate 

further."); State v. Harris (Nov. 27, 1992), Lucas App. No. L92-039, 1992 Ohio App. LEXIS 5982 ("The duty to inquire 

described in State v. Deal is not a duty to inquire into the 

grounds of the motion. The accused bears the duty of 

announcing the grounds of the motion."); State v. Simons

(Nov. 22, 2000), Champaign App. No. 99 CA5, 2000 Ohio App. 

LEXIS 5411 (reasoning that "the mere claim of a 'conflict of 

interest,' without more, is not a sufficiently specific allegation 

to trigger the duty to investigate further"); State v. Davis (May 

18, 1998), Franklin App. Nos. 97 APA08-1020, 97 APA08-1021, 

1998 Ohio App. LEXIS 2210 ("When * * * a defendant fails to 

raise specific concerns about his appointed counsel with the 
8 

No. 17AP-24 

court during trial, we have held that the requirements of Deal 

are not implicated."); State v. Smith (Sept. 14, 2000), 

Cuyahoga App. No. 76998, 2000 Ohio App. LEXIS 4183 ("In 

order to necessitate [a Deal] inquiry, the defendant must 

announce grounds for appointment of new counsel which are 

sufficiently specific to trigger the duty of further 

investigation."); State v. King (1995), 104 Ohio App.3d 434, 

438, 662 N.E.2d 389 (acknowledging the Deal court's 

requirement that "allegations of ineffective assistance had to be 

'specific, not vague or general' "); State v. Washington (Aug. 17, 

2001), Hamilton App. Nos. C-000754, B-0005453, 2001 Ohio 

App. LEXIS 3604 (reasoning that "the better rule requires the 

defendant to raise concerns about his appointed counsel with 

sufficient specificity to warrant further investigation," and 

noting that "a trial court, without more, does not abuse its 

discretion in finding that a general allegation of unhappiness 

with appointed counsel is so vague that it does not require 

additional investigation"). 

State v. Hibbler, 2d Dist. No. 2001-CA-43, 2002-Ohio-4464, ¶ 15. This Court also has 

recognized that it is "reversible error" for a trial court to not inquire about and make part 

of the record a defendant’s complaints concerning the efficacy of his or her counsel. State 

v. Washington, 10th Dist. No. 94APA11-1653, 1995 WL 373531, 1995 Ohio App. LEXIS 

2586, *4-5 (June 20, 1995). 

{¶ 16} In this case, Corder's counsel informed the trial court that Corder wished to 

discharge him on November 12, 2015. (Tr. at 6.) The trial date set at that time was January 

11, 2016 but the trial did not begin until almost a year later, on January 4, 2017. (Nov. 12, 

2015 Continuance Entry; Tr. at 7.) The trial court responded to that request that his counsel 

be removed as follows: 

[DEFENSE COUNSEL]: He also wants to fire me, Judge. 

THE COURT: You don't get to fire him. 

Next. 

[DEFENSE COUNSEL]: Thank you, Judge. 

(Tr. at 6.) 

{¶ 17} In the intervening time between the initial rejection of his request and trial 

over one year later, Corder set forth his complaints about counsel in two pro se motions, on 

July 21, and October 21, 2016. Common to both motions was the bullet-pointed allegation 
9 

No. 17AP-24 

of counsel's "[f]ailure to communicate, failure to answer phone calls, and return phone 

calls, lack of communication." (July 21, 2016 Mot. to Dismiss Counsel; Oct. 21, 2016 Mot. 

to Dismiss Counsel.) In other words, Corder alleged, in the language of Jones, a "total lack 

of communication preventing an adequate defense." Jones at 342. Yet the trial court did 

not inquire into, substantively address, or even read the motions. As the court put it, "I 

don't read your motions. You're represented by counsel, so when I get something from you, 

I don't read it, 'cause that's why you have counsel." (Tr. at 15.) The court's only 

acknowledgment that it was even aware that Corder had repeatedly asked for an attorney 

many months before trial was the following comment on the morning of jury selection: 

THE COURT: Mr. Corder, I asked for you to be brought out 

early just because I realized you've had some stress over this, 

stress between me, stress between your lawyers, stress between 

all of this. But you do know that the Disciplinary Counsel did 

deny -- 

THE DEFENDANT: Yes. 

THE COURT: -- your case. So we're set to go and I'm going to 

be your judge. We're set to go. He's going to be your lawyer. 

(Tr. at 7.) 

{¶ 18} Decisions which address the substance of a substitution of counsel request 

are matters within the discretion of the trial court. State v. Murphy, 91 Ohio St.3d 516, 523 

(2001). But, as discussed at length above, trial courts are legally obliged to inquire into 

specific allegations of inefficacy and make that inquiry part of the record. The failure to do 

so is an error of law and both we and the Supreme Court of Ohio in Deal have previously 

recognized that reversal is appropriate in such circumstances. Deal at 18-20; Washington 

at *4-5. 

{¶ 19} Plaintiff-appellee, State of Ohio, argues that the issue is waived because 

Corder did not assert the issue at trial. (State Brief at 26-32.) However, Corder's counsel 

raised it in a hearing on November 12, 2015, which was a scheduled trial date before the 

court elected to continue the trial. (Tr. at 4, 6; Nov. 12, 2015 Continuance Entry; Tr. at 7.) 

Then Corder raised it in two pro se motions, and he filed a pro se motion to disqualify Judge 

Lynch. (July 21, 2016 Mot. to Dismiss Counsel; Oct. 21, 2016 Mot. to Dismiss Counsel; Dec. 

19, 2016 Mot. to Disqualify.) Though Corder did not re-raise the matter during the trial 
10 

No. 17AP-24 

date on which the trial itself actually went forward, the trial court preemptively addressed 

the issue, saying, "[s]o we're set to go and I'm going to be your judge. We're set to go. He's 

going to be your lawyer." (Tr. at 7.) Corder repeatedly raised the issue and the trial court 

ruled on the matter as trial began. Under the circumstances, we see no reason to find waiver 

because he failed to interrupt, contradict, and argue with the trial court's ruling once made. 

{¶ 20} Though the State cites a number of cases in which we found that a defendant 

who had previously expressed dissatisfaction with his counsel had waived the issue by the 

time of trial, none of these cases are factually similar. In State v. Davis, a defendant sent a 

letter to the court expressing that he had problems with counsel. 10th Dist. No. 97APA08-

1020, 1998 WL 25570, 1998 Ohio App. LEXIS 2210, *2 (May 19, 1998). However, after the 

letter was sent in that case, less than a week before trial, the defendant's attorney 

represented to the trial court that he and the client were no longer having problems and 

that the defendant wished him to remain as counsel. Id. at *2-3. In State v. Scudder, a 

defendant submitted vague letters objecting to his counsel, failed to file a motion to 

formalize the complaints even when invited to do so, and then was entirely silent on the 

issue at trial. 10th Dist.No. 91AP-506, 1192 WL 302432, 1192 Ohio App. LEXIS 5454, *50-

53 (Oct. 20, 1992). In State v. Grisson, trial counsel raised the issue of the defendant's 

satisfaction with his performance in order to give the defendant a forum in which to make 

specific complaints if he had any. 10th Dist. No. 08AP-952, 2009-Ohio-5709, ¶ 4. The 

defendant remained silent and did not voice any specific objection to his counsel until 30 

days after his conviction. Id. at ¶ 22. Under the circumstances, we found that the Deal

inquiry was unnecessary. Id.

{¶ 21} Because the trial court did not make the required Deal inquiry in this case, 

we vacate Corder's convictions and remand his case to the trial court to make inquiry into 

Corder's complaints about his counsel. If Corder's complaints lack merit, the trial court 

may re-enter judgment on the previously rendered verdicts. Deal at 20. However, should 

they prove founded, a new trial on Counts 1 and 5 (if the prosecution elects to go forward) 

or discharge (if the prosecution does not so elect) are required. Corder's second assignment 

of error is sustained. 
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No. 17AP-24 

B. First Assignment of Error – Whether the Trial Court Failed to Make the 

Necessary Findings Under R.C. 2929.14(C)(4) Prior to Imposing 

Consecutive Sentences 

{¶ 22} We have sustained Corder's second assignment of error and remanded his 

case to the trial court to make the Deal inquiry on the record and either re-enter judgment 

on the previously rendered verdicts and re-impose sentence (providing a new opportunity 

to comply with R.C. 2929.14(C)(4)) or to find merit to Corder's complaints about counsel, 

appoint new counsel, and permit the prosecution to elect to retry the vacated counts. If the 

prosecution elects to retry and Corder is found guilty, the trial court would thereafter 

impose sentence on Corder and in doing so comply with R.C. 2929.14(C)(4). Should the 

prosecution elect not to retry Corder or should Corder be acquitted, the trial court would 

have no need to comply with R.C. 2929.14(C)(4). Thus, the question of whether the trial 

court sufficiently complied with R.C. 2929.14(C)(4) in sentencing Corder in this round of 

trial proceedings is rendered moot by our disposition of the second assignment of error. 

{¶ 23} Corder's first assignment of error is moot and we consider it no further. 

C. Third Assignment of Error – Whether the Trial Court Erred in Allowing 

Opinion Testimony on What is Usual Behavior for Child Sexual Offense 

Victims Without Qualifying the Witness as an Expert 

{¶ 24} Because we have sustained Corder's second assignment of error and 

remanded this case to the trial court for an inquiry that may result in a new trial, we find 

Corder's third assignment of error to be unripe at this time. State ex rel. Elyria Foundry 

Co. v. Indus. Commn., 82 Ohio St.3d 88, 89 (1998). It may arise again if the trial court 

finds Corder's complaints unfounded and re-enters judgment on the previous verdicts, or 

if retrial is held, the detective testifies similarly, and Corder is convicted. But review of this 

assignment of error and its attendant issues is speculative based on our order to vacate 

Corder’s sentence. 

{¶ 25} Corder's third assignment of error has been rendered unripe and is not 

considered further at this time. 

IV. CONCLUSION 

{¶ 26} Although Corder repeatedly expressed concerns about the lack of 

communication between himself and his counsel and did request new counsel, the trial 

court made no inquiry into Corder's concerns whatsoever. We therefore reverse and 

remand with instructions to the Franklin County Court of Common Pleas that the trial court 
12 

No. 17AP-24 

shall conduct the Deal inquiry in regard to this case. If Corder's complaints prove 

unfounded, the trial court may re-enter judgment on the previously rendered verdicts. 

However, if the court finds that such complaints are well-taken, the court should conduct a 

new trial on Counts 1 and 5 (if the prosecution is willing to retry the case) or discharge 

Corder (if the prosecution is not willing). Corder's second assignment of error is sustained. 

This renders his first assignment of error moot, and his third assignment of error unripe 

and thus they are considered no further. 

Judgment reversed and 

remanded with instructions. 

KLATT, J., concurs 

SADLER, J., dissents. 

SADLER, J., dissenting. 

{¶ 27} Because at no time during the course of trial did appellant request new 

counsel or otherwise express dissatisfaction with counsel's representation, I would find that 

appellant waived the issue of whether the trial court had a duty to inquire under State v. 

Deal, 17 Ohio St.2d 17 (1969). Because the majority holds otherwise, I respectfully dissent. 

{¶ 28} As stated in Deal, the duty of the trial court to inquire into trial counsel's 

representation of a defendant applies where an indigent defendant questions the 

effectiveness and adequacy of counsel "during the course of his trial." (Emphasis added.) 

Id. at syllabus. This court has repeatedly found that a trial court does not violate a duty to 

inquire under Deal where a defendant who had previously expressed discontentment with 

his trial counsel does not raise the issue during the course of his trial. 

{¶ 29} In State v. Scudder, 10th Dist. No. 91AP-506 (Oct. 20, 1992), we rejected the 

defendant's claim that his letter to the trial court one month prior to trial expressing 

dissatisfaction with his trial counsel implicated the trial court's duty to inquire under Deal. 

We distinguished Deal based on the defendant's failure to raise his allegations of 

incompetency of counsel at trial, noting "[i]t was incumbent upon defendant to do more to 

preserve his pretrial complaints for our review" and that, because his outward conduct at 

trial was inconsistent with his letter, "it would appear that he had later acquiesced in his 

defense counsel's handling of the matter at the time of trial." Id. We found it reasonable 

for the trial court to assume that "problems were resolved since no mention was made of 

them at trial." Id.
13 

No. 17AP-24 

{¶ 30} Likewise in State v. Davis, 10th Dist. No. 97APA08-1021 (May 19, 1998), we 

found that the holding in Scudder applied in a case where the defendant sent a letter to the 

trial court one month prior to trial that we interpreted as a request for new counsel. While 

the facts of Davis included a pretrial meeting whereby trial counsel expressed an improved 

relationship with the defendant, our holding in Davis was specifically based on the 

defendant's failure "to preserve his objections by failing to timely raise his concerns with 

the trial court during the trial"—regardless of whether the trial court personally addressed 

the defendant at trial regarding this topic or not. Id.

{¶ 31} Consistent with Scudder and Davis, in State v. Grisson, 10th Dist. No. 08AP952, 2009-Ohio-5709, ¶ 20-21, appeal not allowed, 124 Ohio St.3d 1493, 2010-Ohio-670, 

we found that comments made to the trial court prior to trial regarding the defendant's 

frustrations with the progress of the case did not trigger a Deal inquiry where immediately 

prior to trial the defendant did not make any complaints regarding his representation. See 

also In re W.W.E., 10th Dist. No. 15AP-167, 2016-Ohio-4552, ¶ 44 (citing Davis and Deal

in finding that the trial court did not err in failing to inquire of the appellant whether he 

wished for different counsel in a permanent custody hearing where the appellant did not 

request new counsel at the hearing). 

{¶ 32} In this case, the majority sees "no reason to find waiver because [appellant] 

failed to interrupt, contradict, and argue with the trial court's ruling once made." (Majority 

Opinion at ¶ 19.) In my view, Deal and precedent of this court support the opposite view 

and stand for the proposition that a defendant waives the issue of trial court inquiry under 

Deal by not expressing, at trial, dissatisfaction with his counsel. Accordingly, because 

during the course of his trial, appellant did not request new counsel, otherwise object to the 

issue, or make any overture about the efficacy or adequacy of counsel's representation, I 

would not find that the trial court erred in failing to inquire about appellant's 

representation under Deal and would rather find that appellant waived the issue. 

{¶ 33} Furthermore, because appellant failed to object at trial, I would find that on 

this record, he failed to demonstrate the trial court's lack of inquiry into his trial counsel 

representation affected the outcome of the trial under plain error review. State v. Lang, 

129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 108, quoting State v. Barnes, 94 Ohio St.3d 21, 27 

(2002), and State v. Long, 53 Ohio St.2d 91 (1978), paragraph two of the syllabus ("An 
14 

No. 17AP-24 

alleged error is plain error only if the error is 'obvious,' and 'but for the error, the outcome 

of the trial clearly would have been otherwise.' ").3

{¶ 34} For the foregoing reasons, I would overrule appellant's second assignment of 

error and proceed to address the third assignment of error.4 Because the majority does not, 

I respectfully dissent. 

 

 

3 I find particularly noteworthy that, in this case, defense counsel's representation contributed to appellant 

being found not guilty of rape of a minor less than 13 years of age and two of the gross sexual imposition 

charges—three of the five of the charges brought against him. 

4 At oral argument, appellant's counsel withdrew appellant's first assignment of error.