[Cite as State v. Breneman, 2012-Ohio-2534.]

 IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO 

STATE OF OHIO : 

Plaintiff-Appellee : C.A. CASE NO. 2010 CA 18 

v. : T.C. NO. 10CR22 

JAMES DOUGLAS BRENEMAN : (Criminal appeal from 

 Common Pleas Court) 

Defendant-Appellant : 

 : 

 . . . . . . . . . . 

O P I N I O N

Rendered on the 8th day of June , 2012. 

 . . . . . . . . . . 

NICK A. SELVAGGIO, Atty. Reg. No. 0055607, Prosecuting Attorney, 200 North Main 

Street, Urbana, Ohio 43078 

Attorney for Plaintiff-Appellee 

MICHAEL R. PENTECOST, Atty. Reg. No. 0036803, Public Defender’s Office, 117 S. 

Main Street, Suite 400, Dayton, Ohio 45422 

Attorney for Defendant-Appellant 

 . . . . . . . . . . 

DONOVAN, J. 

{¶ 1} Defendant-appellant James D. Breneman appeals his conviction and 
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sentence for one count of possession of crack cocaine (more than five grams but less than ten 

grams), in violation of R.C. 2925.11(A)(C)(4)(c), a felony of the third degree. Breneman 

filed a timely notice of appeal with this Court on June 28, 2010. 

{¶ 2} The incident which forms the basis for the instant appeal occurred in the late 

afternoon on December 26, 2009, when Breneman called 911 and reported that he had been 

robbed at gunpoint by a man named Bryan Adams on Main Street in Urbana, Ohio. When 

the 911 operator called him back after the line was disconnected, Breneman informed the 

operator that the situation had changed and he was no longer in danger. 

{¶ 3} Thereafter, Officer Robbie Evans and Sergeant Edward Burkhammer of the 

Urbana Police Department responded to the scene of the alleged robbery. Once there, the 

officers observed Adams walking down the middle of a side street just off of South Main 

Street. The officers also observed Breneman exit an alleyway and join Adams in walking 

down the middle of the street. 

{¶ 4} Sgt. Burkhammer drew his weapon and ordered the two men to the ground 

so that he could perform a search in order to determine whether either man was armed. 

While searching Breneman, Sgt. Burkhammer discovered a baggie containing over seven 

grams of crack cocaine and approximately $771.00 in cash. Breneman was also found to 

have a cell phone and an address book in his possession. During the subsequent search of 

the alley from which Breneman had emerged immediately before he joined Adams, the 

police recovered a glass crack pipe and a digital scale. 

{¶ 5} On February 4, 2010, Breneman was indicted for one count of possession of 

crack cocaine, trafficking in crack cocaine, and possession of criminal tools. The trial court 
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determined that Breneman was indigent and appointed counsel to represent him. Appointed 

counsel, Brandon Cogswell, filed a motion to suppress on March 30, 2010. On April 14, 

2010, the date of the suppression hearing, Attorney William Settina appeared before the trial 

court and sought to enter an appearance on behalf of Breneman who stated that he was 

dissatisfied with the representation of Attorney Cogswell. Breneman also stated that he 

privately retained Attorney Settina as soon as he was able to gather the necessary money. 

Attorney Settina orally moved the trial court for a sixty-day continuance of the suppression 

hearing and the trial date so that he could have adequate time to prepare Breneman’s 

defense. 

{¶ 6} The trial court denied Attorney Settina’s motion for a continuance and 

refused to allow him to appear on behalf of Breneman. As a basis for its decision, the trial 

court cited Attorney Settina’s inability to move forward with the suppression hearing, as 

well as the trial set for April 29, 2010. The trial court ordered Attorney Cogswell to move 

forward with Breneman’s defense at the suppression hearing and the subsequent trial. We 

note that immediately after denying Attorney Settina’s request for a continuance to prepare 

his case, the trial court granted Attorney Cogswell’s request for a continuance of the 

suppression hearing until April 21, 2010. The trial court overruled Breneman’s motion to 

suppress in a judgment entry filed on April 28, 2010. 

{¶ 7} Two days before the trial on April 27, 2010, Breneman filed a pro se motion 

to terminate Attorney Cogswell as his defense counsel. The trial court overruled 

Breneman’s motion prior to jury selection on the date of the trial. After a two-day jury trial, 

Breneman was found guilty of possession of crack cocaine, but acquitted of the remaining 
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counts. At the sentencing hearing held on June 10, 2010, the trial court sentenced 

Breneman to two years in prison. It is from this judgment that Breneman now appeals. 

{¶ 8} Breneman’s first assignment of error is as follows: 

{¶ 9} “THE TRIAL COURT DENIED APPELLANT HIS SIXTH AMENDMENT 

RIGHT TO COUNSEL BY REFUSING TO ALLOW APPELLANT’S RETAINED 

COUNSEL TO ENTER AN APPEARANCE AND FORCING APPELLANT TO GO TO 

TRIAL WITH COUNSEL WHO’S SERVICES HE HAD REPEATEDLY TRIED TO 

TERMINATE.” 

{¶ 10} In his first assignment, Breneman contends that the trial court abused its 

discretion when it denied his newly retained counsel’s request to enter an appearance and 

for a continuance so that he could prepare a defense to the charges. Specifically, Breneman 

argues that because his request to substitute an attorney of his own choosing for appointed 

counsel was made prior to trial and because no continuances had previously been requested 

by the defense, the trial court should have permitted retained counsel to replace appointed 

counsel, as well as provided new counsel with the opportunity to prepare an adequate 

defense on Breneman’s behalf. 

{¶ 11} The Sixth Amendment provides that “[i]n all criminal prosecutions, the 

accused shall enjoy the right *** to have the Assistance of Counsel for his defense.” U.S. 

Constitution Amend. VI. “[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 for each criminal defendant rather than to insure that a 

defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v. United 
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States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140, 148 (1988). 

Accordingly, while the right to counsel of one’s choice is embedded in our jurisprudence, it 

is not without exceptions. Id. A defendant, therefore, has only a presumptive right to 

employ his own chosen counsel. State v. Keenan, 81 Ohio St.3d 133, 137, 689 N.E.2d 929, 

937 (1998). 

{¶ 12} Reviewing the “deprivation of a criminal defendant’s choice of counsel,” the 

U.S. Supreme Court stated as follows: 

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.” 

{¶ 13} United States v. Gonzalez-Lopez, 548 U.S. 140, 142, 126 S.Ct. 2557, 165 

L.Ed.2d 409 (2006). Additionally, “a court must beware that a demand for counsel may be 

utilized as a way to delay proceedings or trifle with the court.” State v. Harmon, 4th Dist. 

Pickaway No. 04CA22, 2005-Ohio-1974, at ¶ 32, quoting U.S. v. Kryzyske, 836 F.2d 1013, 

1017 (6th Cir.1988). 

{¶ 14} 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 and whether 

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

total lack of communication preventing an adequate defense.” State v. Jones, 91 Ohio St.3d 
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335, 342, 2001-Ohio-57, 744 N.E.2d 1163, quoting U.S. v. Jennings, 83 F.3d 145, 148 (6th 

Cir.1996). “In addition, courts should ‘balanc[e] *** the accused’s right to counsel of his 

choice and the public’s interest in the prompt and efficient administration of justice.’” Id. at 

342-343. The decision of whether to grant a defendant’s motion for substitution of counsel 

is confided to the sound discretion of the trial court. Wheat, 486 U.S. at 164, 108 S.Ct. at 

1700, 100 L.Ed.2d at 152. 

{¶ 15} Similarly, Breneman acknowledges that the grant or denial of a continuance 

is a matter that is entrusted to the discretion of the trial court. State v. Goode, 2d Dist. 

Montgomery No. 19273, 2003-Ohio-4323, citing State v. Unger, 67 Ohio St.2d 65, 423 

N.E.2d 1078 (1981). In evaluating a motion for a continuance, a trial court should consider 

the following: 1) the length of the delay requested; 2) whether other continuances have been 

requested or received; 3) the inconvenience to the litigants, witnesses, opposing counsel, and 

the court; 4) whether the requested delay is for legitimate reasons or whether it is dilatory, 

purposeful, or contrived; 5) whether defendant contributed to the circumstances which give 

rise to the request for a continuance; and 6) other relevant factors, depending on the unique 

facts of each case. Unger, supra, at 67-68. 

{¶ 16} As the Supreme Court of Ohio has determined: 

“Abuse of discretion” has been defined as an attitude that is 

unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is 

to be expected that most instances of abuse of discretion will result in 

decisions that are simply unreasonable, rather than decisions that are 

unconscionable or arbitrary. 
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A decision is unreasonable if there is no sound reasoning process that 

would support that decision. It is not enough that the reviewing court, were 

it deciding the issue de novo, would not have found that reasoning process to 

be persuasive, perhaps in view of countervailing reasoning processes that 

would support a contrary result. AAAA Enterprises, Inc. v. River Place 

Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). 

{¶ 17} In light of the specific circumstances involved in the instant matter, we find 

that the trial court abused its discretion when it refused to grant Breneman’s motion for 

substitution of counsel and ordered him to proceed with appointed counsel with whom he 

had expressed a great deal of dissatisfaction. Initially, we note that Breneman’s motion for 

substitution of counsel was made in a timely fashion, not on the day of trial. We have 

previously found a suggestion of bad faith where motions to substitute counsel are made on 

the day of trial, particularly when the trial date has been set for some time. State v. McCoy, 

188 Ohio App. 3d 152, 2010-Ohio-2639, 934 N.E.2d 971, ¶ 48 (2d Dist.). The indictment 

against Breneman was originally filed on February 4, 2010. Attorney Settina appeared 

before the trial court and attempted to enter an appearance on behalf of Breneman on April 

14, 2010, prior to the hearing regarding Breneman’s motion to suppress. Breneman’s trial 

was scheduled to occur on April 29, 2010. Moreover, the record establishes that Attorney 

Settina contacted the trial court prior to April 14, 2010, and advised the court of his intention 

to enter a notice of appearance on behalf of Breneman. 

{¶ 18} Breneman stated that he was unable to retain Attorney Settina at an earlier 

date because he simply did not have the money to hire a private attorney when he was 
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indicted. Attorney Settina indicated to the trial court that he had previously represented 

Breneman, and noted that there was an apparent breakdown in Breneman’s relationship with 

his appointed counsel, Attorney Cogswell. For his part, Breneman expressed confidence in 

Attorney Settina’s ability to represent him. Attorney Cogswell did not oppose the motion 

for substitution and orally moved to withdraw as defense counsel. We find that Breneman’s 

motion to substitute counsel was not untimely, nor was it made in an effort to delay the 

proceedings. 

{¶ 19} Attorney Settina indicated to the trial court that if he was allowed to 

represent Breneman, he would request a continuance of approximately sixty days in which to 

familiarize himself with the facts of the case and prepare for trial. It is important to note 

that no prior continuances had been requested by the defense, nor was it unreasonable for 

Attorney Settina to request a continuance in order to mount an adequate defense. We also 

note that the State did not oppose Attorney Settina’s request for a continuance, only stating 

that it was prepared to go forward with the motion to suppress that day, as well as the jury 

trial scheduled for April 29, 2010. 

{¶ 20} The trial court’s only apparent concern, however, was preserving the original 

 trial schedule, and for that reason it denied the motion for substitution. Specifically, the 

trial court stated the following: 

The Court’s reviewed the Court’s calendar up through mid-July. The 

Court finds that the opportunity for a rescheduled trial would be very difficult 

to guarantee during the time period. Court finds that the State is prepared 

with witnesses. Court finds it would be an adverse effect on the State’s 
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witnesses to have a continuance. Court does not currently know the vacation 

schedule of any of the officers or the witnesses. Court knows we’ve run into 

vacation problems with the Urbana Police Division before in the 

summertime. *** There’s no showing that defense witnesses are unavailable 

for the present trial. Current trial counsel is prepared to proceed. Court 

finds that the feeling of comfortability [sic] in new counsel is not a sufficient 

basis for a change of counsel at this stage. 

Case was filed February 4, 2010. Attorney Cogswell has been 

involved by court appointment since February of 2010. There is no showing 

that current defense counsel has not properly performed duties of counsel. 

So the request of Attorney Settina to appear on the behalf of the 

defendant is not granted. It’s because defense counsel is not able to be 

properly prepared to represent the defendant based on the current trial 

schedule. ***. 

{¶ 21} Simply put, the record does not support the findings of the trial court. 

Initially, we note that no evidence was adduced which established that there “would be an 

adverse effect on the State’s witnesses” if a continuance was granted. Other than asking the 

State the number of witnesses it expected at trial and whether those witnesses had been 

advised of the trial date, the court made no inquiries regarding any “adverse effect” a 

continuance would have on the State’s witnesses. Additionally, the trial court’s speculation 

with respect to the vacation schedules of the officers of the Urbana Police Department was 

not a proper basis upon which to deny the motion for substitution and request for 
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continuance. 

{¶ 22} From the record, it appears that the motion to suppress and the trial in this 

matter were set rather quickly. Breneman was indicted on February 4, 2010, and the trial 

was scheduled in less than three months time on April 29, 2010. Simply put, there was no 

concern that the case was stale nor that there was a need to move at an expedited pace to 

satisfy speedy trial demands. We also note that Breneman was out on bond during almost 

the entirety of the case. 

{¶ 23} Lastly, we note that immediately after denying Attorney Settina’s motion to 

appear and request for a continuance, the trial court continued the motion to suppress 

hearing until April 21, 2010, in order to accommodate Attorney Cogswell’s schedule. In 

light of the trial court’s marked emphasis on the ability of counsel to proceed with the 

current case schedule and the “adverse effect” any continuance would have on the State’s 

witnesses, it seems unusual that the trial court would then continue the motion to suppress 

by seven days. We also note that Attorney Settina was not asked if he could be ready for 

the rescheduled motion hearing on April 21, 2010. Simply put, the trial court’s basis for 

denying the motion to appear and request for a continuance was severely undermined by its 

subsequent decision to continue the motion to suppress in order to accommodate appointed 

counsel. 

{¶ 24} Upon review, we find that the trial court’s decision to deny Breneman’s 

motion for substitution of counsel and Attorney Settina’s request for a continuance was 

unreasonable under the “unique facts” presented in the instant case. Breneman’s motion for 

substitution was not made in an untimely manner. The State did not oppose Breneman’s 
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motions, and no evidence was adduced which established that the State’s witnesses would be 

adversely affected by a continuance. There were no prior requests for continuances, and 

there was no evidence of bad faith or contrivance on the part of Breneman or Attorney 

Settina. The trial court’s rigid and inflexible adherence to its trial calendar ignored 

Breneman’s presumptive right to counsel of his own choosing. 

{¶ 25} Breneman’s first assignment of error is sustained. 

{¶ 26} Breneman’s second assignment of error is as follows: 

{¶ 27} “DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL 

COUNSEL WHEN TRIAL COUNSEL REPEATEDLY ELICITED PREJUDICIAL 

TESTIMONY OF DEFENDANT’S PRIOR BAD ACTS AND REPUTATION AND 

FAILED TO OBJECT TO QUESTIONS PROPOSED BY JURORS.” 

{¶ 28} In light of our disposition with respect to Breneman’s first assignment of 

error, his second assignment is moot. 

{¶ 29} Breneman’s first assignment of error having been sustained, the judgment of 

the trial court is reversed, and this matter is remanded for proceedings consistent with this 

opinion. 

 . . . . . . . . . . 

FAIN, J. and HALL, J., concur. 

Copies mailed to: 

Nick A. Selvaggio 

Michael R. Pentecost 

Hon. Roger B. Wilson