[Cite as State v. Tingler, 2022-Ohio-3792.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT

SCIOTO COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. 21CA3962

v. :

ROBERT S. TINGLER, : DECISION AND JUDGMENT ENTRY 

Defendant-Appellant. :

_________________________________________________________________

APPEARANCES:

Gene Meadows, Portsmouth, Ohio, for appellant1. 

Shane Tieman, Scioto County Prosecuting Attorney, and Jay S. 

Willis, Assistant Prosecuting Attorney, Portsmouth, Ohio, for 

appellee.

___________________________________________________________________

CRIMINAL APPEAL FROM COMMON PLEAS COURT

DATE JOURNALIZED:10-19-22

ABELE, J.

{¶1} This is an appeal from a Scioto County Common Pleas Court 

judgment of conviction and sentence. After Robert S. Tingler, 

defendant below and appellant herein, pleaded guilty to possession 

of cocaine and tampering with evidence, the trial court sentenced 

him to serve 30 months in prison. 

1 Different counsel represented appellant during the trial 

court proceedings.
SCIOTO, 21CA3962

2

{¶2} Appellant assigns two errors for review: 

FIRST ASSIGNMENT OF ERROR:

“THE DEFENDANT-APPELLANT WAS DENIED HIS SIXTH 

AMENDMENT CONSTITUTIONAL RIGHT TO COUNSEL OF 

CHOICE WHEN THE TRIAL COURT ARBITRARILY REFUSED 

TO PERMIT THE DEFENDANT-APPELLANT TO RETAIN 

COUNSEL OF HIS CHOICE.”

SECOND ASSIGNMENT OF ERROR:

“THE DEFENDANT-APPELLANT WAS DENIED HIS SIXTH 

AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL DUE TO A CONFLICT OF 

INTEREST OF APPOINTED COUNSEL.”

{¶3} In May 2016, a Scioto County Grand Jury returned an 

indictment that charged appellant with (1) possession of cocaine in 

violation of R.C. 2925.11(A), a fifth-degree felony, (2) possession 

of heroin in violation of R.C. 2925.11(A), a fourth-degree felony, 

and (3) tampering with evidence in violation of R.C. 2921.12(A)(1), 

a third-degree felony. At appellant’s December 10, 2020 video 

arraignment2, appellant entered a not guilty plea and the trial 

court appointed counsel. 

{¶4} At the June 22, 2021 pretrial hearing, the trial court 

noted that it had received appellant’s handwritten letter, dated 

June 1, 2021, that requested substitution of counsel. The court 

2

 According to appellant’s brief, it appears that the delay 

between indictment and arraignment is due to appellant’s 

incarceration for previous offenses committed in Franklin County. 
SCIOTO, 21CA3962

3

asked, “[s]ince that time that you’ve written me that letter have 

you had an opportunity to meet with [appointed counsel] and discuss 

your case?” Appellant stated, “Yes, I have.” When asked, “[h]ave 

you worked through those issues about your satisfaction with your 

counsel,” appellant replied, “[y]es, Your Honor. At this time, you 

know, the - - for the interest of the Court, just move it along. I 

would like to withdraw that motion.” 

{¶5} Subsequently, appellant rejected the state’s plea offer 

and, on August 2, 2021, the parties appeared for jury trial. That 

morning, with the jury waiting to be seated, appellant informed the 

trial court that he wished to raise several issues, including: (1) 

the state failed to serve him with a copy of the indictment, (2) 

defects exist in the indictment, (3) counsel should have filed a 

motion to dismiss based on speedy trial violation, (4) counsel 

should have filed a motion to suppress evidence, and (5) appellant 

did not receive discovery until 48 hours before trial. 

{¶6} At that point, the court served appellant with another 

copy of the indictment, informed appellant it found no defects in 

the indictment, and observed that the speedy trial deadline had not 

yet expired. Trial counsel also informed the court that he did not 

file a motion to suppress evidence because it would have been 

frivolous, that appellant received discovery “when he first came 
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4

down here from prison,” and what appellant received 48 hours before 

is the “exact same thing as his discovery. So, he’s got to review 

the exact same thing.” Counsel further stated that he had 

difficulty convincing appellant to review a video of appellant and 

his co-defendant, but eventually, counsel “made him watch it.”

{¶7} Although appellant stated he “had issues with this 

attorney from the very beginning,” the trial court noted that it 

had previously addressed this issue. Appellant then stated that he 

did not hear from his attorney since his December arraignment and 

he wanted a new attorney. When asked if he hired a new attorney, 

appellant replied he had not. Appellant further stated that he 

instructed counsel to file a motion to withdraw as counsel. The 

court, however, noted, “If you’ve not hired one to be here today 

I’m going to find that that’s not timely and we’re going to bring 

the jury in and start the trial here in about five minutes.” 

{¶8} At that juncture, appellant decided to become enraged and 

curse at the trial court. Ultimately, the bailiff and a deputy 

sheriff threatened appellant with a taser and restrained him. The 

court described the situation: 

Mr. Tingler appeared here without restraints per - - I 

believe pursuant to a previous order of this Court, even 

though he’s currently incarcerated on other charges in the 

Department of Corrections. During that he became 

dissatisfied with the Courts rulings, dissatisfied with 

his counsel. I’d indicated to him that we would be 
SCIOTO, 21CA3962

5

proceeding with the trial here today. During that time he 

jumped up from his chair, slung the Defense counsels papers 

across the courtroom, began pacing back and forth. The 

Bailiff had to pull a taser to get him to sit back down in 

his chair, which took some time. He’s now been restrained. 

Based on the Defendants conduct here in the court I’m going 

to find that he poses a danger to the court participants 

and to the jury if he’d remain unrestrained during the 

trial, and I’m going to order that he be restrained during 

the trial.

Now, Mr. Tingler, I’ll tell you right now we’re not going 

to put up with that conduct in front of the jury. If you 

do that again, or if you act out, you interrupt these court 

proceedings I will remove you from the courtroom and we’ll 

proceed with this trial without you present.

When the court asked appellant if he understood the situation, 

appellant did not answer. A few minutes later, appellant’s counsel 

advised the court that appellant asked him to withdraw from the 

case. However, after the court denied the motion and during the 

recess, appellant composed himself and discussed a proposed plea 

agreement with counsel and for an 18 month concurrent sentence. 

The court stated, “I’d indicated in chambers that at this point I’m 

not going to agree to any sentence bargaining.” After another 

recess, appellant decided to plead guilty to counts one and three. 

{¶9} At the change of plea hearing, the trial court advised 

appellant of his constitutional rights, reviewed postrelease 

control and the maximum penalties. Appellant then pleaded guilty 

to (1) possession of cocaine in violation of R.C. 2925.11(A), a 
SCIOTO, 21CA3962

6

fourth-degree felony, and (2) tampering with evidence in violation 

of R.C. 2921.12(A)(1), a third-degree felony. At sentencing, the 

court acknowledged appellant “did act out before the jury was 

brought into the courtroom, but ultimately he complied with the 

request of the Court staff and the deputies, so I’m not going to 

hold that conduct against him for purposes of sentencing.” 

Consequently, the court sentenced appellant to serve (1) six months 

in prison for possession, and (2) 30 months in prison for 

tampering, with the sentences to be served concurrently with each 

other and consecutively to appellant’s current prison sentence. 

Finally, the court ordered appellant to serve an optional threeyear postrelease control term. This appeal followed.

I.

{¶10} In his first assignment of error, appellant asserts that 

the trial court denied him his Sixth Amendment right to counsel 

when it refused to permit him “to retain counsel of his choice.”

{¶11} Initially, we point out that appellant entered guilty 

pleas to the two offenses. Generally, a guilty plea waives all 

appealable errors, including claims of ineffective assistance of 

counsel, except to the extent that the alleged errors precluded 

appellant from knowingly, intelligently and voluntarily entering 

his guilty plea. State v. Colon, 8th Dist. No. 104944, 99 N.E.3d. 
SCIOTO, 21CA3962

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1197; State v. Geiga, 157 Ohio App.3d 112, 809 N.E.2d 673, 2004-

Ohio-2124. Although appellant in the case at bar expressed general 

displeasure with trial counsel, appellant does not provide any 

basis or reason for a claim that this guilty plea was less than 

knowing, intelligent and voluntary. Nevertheless, in the interest 

of justice we will review appellant’s assignments of error.

{¶12} The Sixth Amendment to the United States Constitution, 

and Article I, Section 10 of the Ohio Constitution, provides that 

defendants in all criminal proceedings shall have the assistance of 

counsel for their defense. To establish constitutionally

ineffective assistance of counsel, a defendant must show that (1)

counsel rendered a deficient performance, and (2) the deficient

performance prejudiced the defense and deprived the defendant of a

fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, a

defendant must prove that counsel's performance fell below an

objective level of reasonable representation. State v. Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95.

Additionally, a court need not analyze both Strickland test prongs

if it can resolve the claim under one prong. See State v.

Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000); State v.

Bowling, 4th Dist. Jackson No. 19CA2, 2020-Ohio-813, ¶ 12-13.
SCIOTO, 21CA3962

8

{¶13} When a court examines whether counsel's representation

amounts to deficient performance, “a court must indulge a strong

presumption that counsel's conduct falls within the wide range of

reasonable professional assistance.” Strickland at 689, 466 U.S.

668, 104 S.Ct. 2052. Moreover, because a properly licensed

attorney is presumed to execute all duties ethically and

competently, State v. Taylor, 4th Dist. Washington No. 07CA11,

2008-Ohio-482, ¶ 10, to establish ineffectiveness, a defendant must

demonstrate that counsel's errors were “so serious” that counsel

failed to function “as the ‘counsel’ guaranteed * * * by the Sixth

Amendment.” Strickland at 687, 466 U.S. 668, 104 S.Ct. 2052.

{¶14} The right to counsel “guarantees a defendant the right to 

be represented by an otherwise qualified attorney whom that 

defendant can afford to hire, or who is willing to represent the 

defendant even though he is without funds.” Caplin & Drysdale, 

Chartered v. United States, 491 U.S. 617, 624-25, 109 S.Ct. 2646, 

105 L.Ed.2d 528 (1989). Moreover, “[a] criminal defendant who

desires and is financially able to retain his own counsel ‘should 

be afforded a fair opportunity to secure counsel of his own 

choice.’” Id., quoting Powell v. Alabama, 287 U.S. 45, 53, 53 

S.Ct. 55, 77 L.Ed. 158 (1982); State v. Beem, 5th Dist. Licking No. 

2019CA00062, 2020-Ohio-2964, ¶ 29.
SCIOTO, 21CA3962

9

{¶15} Appellant argues that the trial court deprived him of his 

right to counsel when it refused to permit him to retain counsel of 

his choice. We point out, however, that at any point in the 

proceedings, from appellant’s arraignment to his change of plea, 

appellant could have retained any counsel, at his expense. We find 

nothing in the record to indicate in any manner that the trial 

court prohibited or interfered with this endeavor. Thus, because 

appellant did not attempt to retain counsel, the issue here appears 

to be appellant’s desire to have the court replace his court 

appointed counsel. 

{¶16} “[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.” Wheat v. 

United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 

140, 148 (1988). Thus, “[a] defendant 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). 

{¶17} However, the right to counsel of choice “is not absolute 

* * * and courts have ‘wide latitude in balancing the right to 

counsel of choice against the needs of fairness and against the 
SCIOTO, 21CA3962

10

demands of its calendar.’” State v. Oliver, 2018-Ohio-602, 106 

N.E.3d 300, ¶ 5 (10th Dist.), quoting State v. Frazier, 8th Dist. 

Cuyahoga No. 97178, 2012-Ohio-1198, ¶ 26, quoting United States v. 

Gonzalez-Lopez, 548 U.S. 140, 152, 126 S.Ct. 2557, 165 L.Ed.2d 409 

(2006). Thus, a trial court’s “difficult responsibility of 

assembling witnesses, lawyers and jurors for trial ‘counsels 

against continuances except for compelling reasons.’” State v. 

Howard, 5th Dist. Stark No. 2012CA00061, 2013-Ohio-2884, ¶ 40, 

quoting Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 

L.Ed.2d 610 (1983). 

{¶18} 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.” United 

States 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.; State v. Jones, 91 Ohio St.3d 

335, 342-43, 744 N.E.2d 1163 (2001). 

{¶19} Generally, a defendant bears the burden to demonstrate 
SCIOTO, 21CA3962

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that substitute counsel is warranted. State v. Carter, 128 Ohio 

App.3d 419, 423, 715 N.E.2d 223 (4th Dist.1998). Once an indigent 

defendant questions the adequacy of assigned counsel during trial, 

a court must inquire into the complaint on the record. Id. 

“Decisions relating to the substitution of counsel are within the 

sound discretion of the trial court.” Jones, supra, at 343; 

Frazier at ¶ 26, citing Wheat at 159. This court has held:

[A]n indigent defendant is entitled to new counsel ‘only 

upon a showing of good cause, such as a conflict of 

interest, a complete breakdown in communication, or an 

irreconcilable conflict which leads to an apparently unjust 

result.’ State v. Edsall (1996), 113 Ohio App.3d 337, 339, 

680 N.E.2d 1256; see, also, State v. Blankenship (1995), 

102 Ohio App.3d 534, 558, 657 N.E.2d 559; Pruitt, 18 Ohio 

App.3d at 57, 480 N.E.2d 499. 

State v. Newland, 4th Dist. Ross No. 02CA2666, 2003-Ohio-3230, ¶ 

11.

{¶20} In addressing the factors courts use to determine whether 

a trial court erred in denying a defendant’s motion to substitute 

counsel, we first observe that appellant’s morning of trial request 

for substitute counsel was not timely. Due to appellant’s 

indigence, the trial court appointed counsel at appellant’s 

December 14, 2020 arraignment. On June 10, 2021, appellant filed a 

pro se motion to substitute counsel and asserted that, since his 

arraignment, no communication occurred between appellant and 
SCIOTO, 21CA3962

12

appointed counsel and that counsel “completely failed at his 

constitutional obligation to represent [him] adequately and 

effectively. Current counsel has been more of an asset to the 

prosecution than to the defense, hereby making it impossible to 

mount an adequate defense.” However, at the June 22, 2021 pretrial 

hearing, appellant opted to withdraw his motion to substitute 

counsel.

{¶21} Our review of the record reveals that appellant failed to 

seek trial counsel substitution until the morning of his jury 

trial, and this fact must weigh heavily against him. See State v. 

Spencer, 10th Dist. Franklin No. 16AP-444, 2017-Ohio-1140, ¶ 9 

(request for substitute counsel untimely on morning of trial); 

State v. McCoy, 188 Ohio App.3d 152, 2010–Ohio–2639, 934 N.E.2d

971, ¶ 48 (2d Dist.)(suggestion of bad faith when motions to 

substitute counsel made day of trial, particularly when trial date 

set for some time).

{¶22} The second factor in the analysis is the adequacy of the 

trial court’s inquiry into the defendant’s request. Here, at the 

June 22, 2021 pretrial hearing, the trial court thoroughly inquired 

about appellant’s motion to substitute counsel. When asked if he 

had “worked through those issues about your satisfaction with your 
SCIOTO, 21CA3962

13

counsel,” appellant replied, “[y]es, Your Honor. At this time, you 

know, the - - for the interest of the Court, just move it along. I 

would like to withdraw that motion.” 

{¶23} On the morning of the jury trial, appellant again raised 

the issue and argued that counsel did not spend enough time with 

him, did not file a motion to suppress evidence, did not file a 

motion to dismiss based on a speedy trial violation, and did not 

allow him to review discovery until 48 hours before trial. 

Appellant further argued that he did not receive a copy of the 

indictment and challenged the indictment as defective. However, as 

we noted above, counsel informed the trial court that a motion to 

suppress would have been frivolous, appellant received another copy 

of the indictment, the court informed appellant that no defects 

appear in the indictment and that no speedy trial violation had 

occurred. Thus, after the trial court fully discussed this matter 

with appellant on the record, the court gave appellant time to 

compose himself and move forward. 

{¶24} As detailed above, in the case sub judice the trial court 

inquired about appellant’s concerns both at a pretrial hearing and 

again when the parties appeared for jury trial. Thus, in view of 

the fact the trial court adequately inquired about appellant’s 

complaint and his request for substitute counsel, this factor 
SCIOTO, 21CA3962

14

weighs against appellant.

{¶25} Another factor courts must consider when evaluating a 

request for substitute counsel is whether an alleged conflict 

between an attorney and client is so great that it results in a 

total lack of communication and prevents an adequate defense. 

Jennings, supra, 83 F.3d 145 at 148; see also State v. Cowans, 87 

Ohio St.3d 68, 73, 717 N.E.2d 298 (1999); State v. Murphy, 91 Ohio 

St.3d 516, 523, 747 N.E.2d 765 (2001). However, whether counsel is 

court-appointed or privately retained, the Sixth Amendment 

guarantees competent representation but “does not include the right 

to develop and share a ‘meaningful attorney-client relationship” 

with one’s attorney. State v. Gordon, 149 Ohio App.3d 237, 2002-

Ohio-2761, ¶ 12 (1st Dist.). Moreover, “[h]ostility, tension, or 

personal conflicts between an attorney and a client that do not 

interfere with the preparation or presentation of a competent 

defense are insufficient to justify a change in appointed counsel.” 

Newland, supra, 2003-Ohio-3230, at ¶ 11, citing State v. Henness, 

79 Ohio St.3d 53, 65-66, 679 N.E.2d 686. 

{¶26} In the case at bar, appellant appeared to be dissatisfied 

with his representation and argued he did not review discovery 

materials until “thirteen minutes, two days before trial.” 

Apparently, appellant’s courtroom outburst underscored his 
[Cite as State v. Tingler, 2022-Ohio-3792.]

frustration with the situation. However, appellant did not present 

evidence of a total breakdown in communication. Further, appointed 

counsel informed the court that he met with appellant, encouraged 

appellant to view discovery, and prepared to proceed at trial. 

{¶27} Finally, as appellee notes, appellant did not present any 

evidence of prejudice. In exchange for appellant’s guilty plea to 

possession of cocaine and tampering with evidence, the state 

dismissed the heroin possession charge, a fourth-degree felony. 

Furthermore, the trial court did not impose a maximum sentence. 

As such, after our review we conclude that the trial court properly 

exercised its discretion to deny appellant’s morning of trial 

request for a last-minute substitution of counsel. 

{¶28} Accordingly, based upon the foregoing reasons, we 

overrule appellant’s first assignment of error.

II.

{¶29} In his second assignment of error, appellant asserts that 

a particular conflict with appointed counsel denied him his Sixth 

Amendment right to effective assistance of counsel. Appellant 

supplemented the record with a docket sheet, appointment of 

counsel, and motion to withdraw to demonstrate that his appointed 

counsel also briefly served as the appointed counsel for 

appellant’s co-defendant Rieser, which, appellant contends, 
[Cite as State v. Tingler, 2022-Ohio-3792.]

constitutes successive representation. Appellee argues, however, 

that appellant failed to show any prejudice. 

{¶30} Successive representation occurs when defense counsel has 

previously represented a co-defendant or a trial witness. Moss v. 

United States, 323 F.3d 445, 459 (6th Cir.2003). Successive 

representation “differs materially” from simultaneous 

representation because “the attorney is no longer beholden to the 

former client.” State v. Jones, 5th Dist. Stark Nos. 2007-CA00041, 2007-Ohio-00077, 2008-Ohio-1068, ¶ 77. “The fear in 

successive representation cases is that the lawyer will fail to 

cross-examine the former client rigorously for fear of revealing or 

misusing privileged information.” Moss at 460. The attorney could 

be “tempted to use confidential information to impeach the former 

client; or * * * may fail to conduct a rigorous cross-examination 

for fear of misusing his confidential information.” State v. 

Stephenson, 10th Dist. Franklin No. 13AP–609, 2014-Ohio-670, ¶ 16, 

citing U.S. v. Agosto, 675 F.2d 965, 971 (8th Cir.1982). 

{¶31} “[W]here 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.” State v. Gillard, 64 Ohio St.3d 304, 311, 595 N.E.2d 878 
[Cite as State v. Tingler, 2022-Ohio-3792.]

(1992). “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.” Id. at 312. However, “a trial court’s failure 

to inquire into a possible conflict of interest does not transform 

a possible conflict into an actual one nor does it automatically 

require a retrial, for such retrial would be premature.” State v. 

Beamon, 12th Dist. Butler No. CA2018-04-065, 2019-Ohio-443, ¶ 26, 

citing State v. Gillard, 78 Ohio St.3d 548, 552, 679 N.E.2d 276 

(1997)(Gillard II). 

{¶32} To establish that an actual conflict of interest existed, 

an appellant must demonstrate two elements. State v. Laghaoui, 

2018-Ohio-2261, 114 N.E.3d 249, ¶ 22 (12th Dist.). First, the 

appellant must show that “ ‘some plausible alternative defense 

strategy or tactic might have been pursued.’ ” Gillard II at 552, 

quoting United States v. Fahey, 769 F.2d 829, 836 (1st Cir.1985). 

Second, the appellant must “ ‘establish that the alternative 

defense was inherently in conflict with or not undertaken due to 

the attorney’s loyalties or interests.’” Id., quoting Fahey at 

836. 

{¶33} An “actual conflict of interest,” for purposes of the 

Sixth Amendment, is “a conflict of interest that adversely affects 
[Cite as State v. Tingler, 2022-Ohio-3792.]

counsel’s performance.” Mickens v. Taylor, 535 U.S. 162, 172, 122 

S.Ct. 1237, 152 L.Ed.2d 291 (2002), fn. 5. To prove an “actual 

conflict of interest,” the defendant must show that his counsel 

“actively represented conflicting interests,” and that the conflict 

“actually affected the adequacy of his representation.” Id., 

quoting Cuyler v. Sullivan, 446 U.S. 335, 349-350, 100 S.Ct. 1708, 

64 L.Ed.2d 333 (1980). 

{¶34} In State v. McDonald, 4th Dist. Lawrence No. 09CA4, 2009-

Ohio-5132, trial counsel previously represented one of the state’s 

witnesses against the defendant. We observed that Ohio courts have 

generally required defendants, who claim a successive conflict of 

interest, to demonstrate an actual conflict. Id. at ¶ 13, Jones,

supra, 2008-Ohio-1068, at ¶ 71-78; State v. McGhee, 4th Dist. 

Lawrence No. 04CA15, 2005-Ohio-1585, at ¶ 19-24; State v. Peoples,

10th Dist. Franklin No. 02AP-945, 2003-Ohio-4680, at ¶ 36-41. 

{¶35} “ ‘ The term of art ‘actual conflict’ refers not to a 

personality conflict but to a conflict of interest.’ ” State v. 

Henness, 79 Ohio St.3d 53, 65, 679 N.E.2d 686 (1997), citing 

Strickland v. Washington, 466 U.S. 668, 692; State v. Dunn, 4th 

Dist. Pickaway No. 97CA26, 1998 WL 337079 (June 17, 1998). A 

possible conflict of interest exists where the “interests of the 

defendants may diverge at some point so as to place the attorney 
[Cite as State v. Tingler, 2022-Ohio-3792.]

under inconsistent duties.” State v. Dillon, 74 Ohio St.3d 166, 

168, 657 N.E.2d 273 (1995), quoting Cuyler, 446 U.S. at 356, 100 

S.Ct. At 1722, 64 L.Ed.2d at 351, 352, fn. 3. “[A]n actual 

conflict of interest exists if, during the course of the 

representation, the defendants’ interests do diverge with respect 

to a material factual or legal issue or to a course of action.” 

Dillon at 169, quoting Cuyler, 446 U.S. at 356, fn.3. “[W]hether 

an actual conflict of interest existed is a mixed question of law 

and fact, subject to de novo review on appeal.” Cuyler at 342.

 

{¶36} In McDonald, supra, 2009-Ohio-5132, the defendant “merely 

stated that his counsel was ‘affiliated’ with the state’s witness.” 

Further, the defendant stated that his counsel had “previously 

represented” the witness. Id. at ¶ 16. This court held that 

“[p]rior representation of a witness or victim is by itself

insufficient to demonstrate an actual conflict of interest,” id., 

and concluded that McDonald had, at best, demonstrated a potential 

conflict and pointed to no specific legal, factual or motivational 

issues that rose to the level of an actual conflict. Id.

{¶37} In State v. Beamon, supra, 2019-Ohio-443, the defense 

attorney had represented the victim in an unrelated criminal matter 

and Beamon waived any potential conflict of interest. However, on 
[Cite as State v. Tingler, 2022-Ohio-3792.]

appeal appellant challenged the successive representation. The 

Twelfth District noted that successive representation did not give 

rise to the same presumption of prejudice as simultaneous 

representation, and held it is more difficult for a defendant to 

show that defense counsel actively represented conflicting 

interests in cases of successive, rather than simultaneous, 

representation. Id. at ¶ 24, citing State v. Buck, 1st Dist. 

Hamilton No. C-160320, 2017-Ohio-8242, ¶ 91. Thus, the court 

concluded that Beamon failed to demonstrate that an actual conflict 

of interest existed. Id. at ¶ 28. Moreover, the court determined 

that Beamon failed to demonstrate that he suffered prejudice as a 

result of the defense counsel’s representation of the victim eight 

years earlier. Id. at ¶ 29.

{¶38} In the case sub judice, co-defendant Rieser’s docket 

summary indicates that, on August 31, 2016, the trial court 

arraigned Rieser, found him indigent, and appointed Attorney 

Stratton, appellant’s trial attorney in the case sub judice. On 

September 2, 2016, Stratton filed a request for a bill of 

particulars, a request for notice of intent to use evidence, a 

request for disclosure of evidence, and a motion to preserve 

evidence. On September 19, 2016, Stratton filed a motion to 

withdraw and stated, “Attorney Shawn Stratton has represented the 

codefendant, Robert S. Tingler, on a prior criminal case.” The 
[Cite as State v. Tingler, 2022-Ohio-3792.]

trial court granted the motion to withdraw on September 21, 2016. 

Thus, it appears that Stratton represented co-defendant Rieser for 

less than thirty days, and some four years before appellant’s plea

in the case at bar. By contrast, the trial court appointed 

Attorney Stratton to represent appellant on December 17, 2020, 

after the court arraigned appellant and found him indigent. 

Stratton represented appellant in this case from December 17, 2020, 

until his August 6, 2021 guilty plea. 

{¶39} Other than demonstrating that appellant’s appointed 

counsel very briefly represented appellant’s co-defendant four 

years before he represented appellant, appellant did not provide 

any evidence of actual conflict. In this case, trial counsel’s 

brief representation of appellant’s co-defendant did not prejudice 

appellant or create an actual conflict, and appellant has not 

established an ineffective assistance of counsel claim because he 

did not demonstrate an actual conflict of interest. Further, 

appellant did not explain how his interests diverged from, or are 

adverse to, the co-defendant’s interests on any factual or legal 

issue. Moreover, the record does not indicate that defense 

counsel’s prior brief representation of Rieser created any 

conflict.
[Cite as State v. Tingler, 2022-Ohio-3792.]

{¶40} Therefore, after our review in the case sub judice, we 

believe that appellant merely asserts that trial counsel had 

conflicting obligations, but provides no specific and credible 

evidence to link his conviction to the alleged conflict of 

interest. As such, appellant failed to demonstrate that trial 

counsel’s alleged conflict of interest deprived him of his 

constitutional right to the effective assistance of counsel. 

{¶41} Accordingly, based upon the foregoing reasons, we 

overrule appellant’s second assignment of error and affirm the 

trial court’s judgment. 

JUDGMENT AFFIRMED.
[Cite as State v. Tingler, 2022-Ohio-3792.]
SCIOTO, 21CA3962

24

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellee 

recover of appellant the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court 

directing the Scioto County Common Pleas Court to carry this 

judgment into execution.

If a stay of execution of sentence and release upon bail has 

been previously granted by the trial court or this court, it is 

temporarily continued for a period not to exceed 60 days upon the 

bail previously posted. The purpose of a continued stay is to 

allow appellant to file with the Supreme Court of Ohio an 

application for a stay during the pendency of the proceedings in 

that court. If a stay is continued by this entry, it will 

terminate at the earlier of the expiration of the 60-day period, or 

the failure of the appellant to file a notice of appeal with the 

Supreme Court of Ohio in the 45-day appeal period pursuant to Rule 

II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. 

Additionally, if the Supreme Court of Ohio dismisses the appeal 

prior to expiration of 60 days, the stay will terminate as of the 

date of such dismissal. 

A certified copy of this entry shall constitute that mandate 

pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:_____________________________ 

 Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a 

final judgment entry and the time period for further appeal 
SCIOTO, 21CA3962

25

commences from the date of filing with the clerk.