[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 appellant 1
. 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 o f convic tion and sentence. After Robert S. Tingler, defendant below and a ppellant 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 represe nted 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 AS SIGNMENT OF ERROR: “THE DEFENDANT

- APPELLANT WAS DENIED HIS SIXTH AMENDMEN T 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 cha rged app ellant 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 th ird

- degr ee felony. At appellant’s December 10, 2020 video arraignment 2 , 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. T he court

2 According to appellant’s brief, it appears that the delay between indictment and arraign ment is due to appellant’s incarceration for previous off enses 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 hav e.” Whe n asked, “[h]ave you worked through those issues about your sat isfaction 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 m otion.” {¶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, inc luding: (1) the state failed to serve him with a copy of the indictmen t, (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, an d (5) ap pellant 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 ha d not
ye t 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 cameSCIOTO, 21CA3962 4

down here from prison,” and what appellant received 48 hours be fore 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 hi m watch it.” {¶7} Although appellant stated he “had issues with this
atto rney 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 arraignme nt and h e wanted a new attorney. When asked if he hired a new attor ney, 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 tod ay 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 de puty she riff 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 ot her char ges in the Department of Corrections. During that he becam e dissatisfied with the Courts rulings, dissatisfied with his counsel. I’d indicated to him that we would beSCIOTO, 21CA3962 5

proceeding with the trial here today. During that time he jumped up from his c hair, sl ung 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 cour t I’m going to find that he poses a danger to the court par ticipants 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 g oing to put up with that conduct in front of the jury. If you do t hat 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 appella nt 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 compos ed himse lf 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 d ecided t o 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 coca ine in v iolation of R.C. 2925.11(A), aSCIOTO, 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 court room, bu t ultimately he complied with the request of the Court sta ff 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 possess ion, 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 three

year postrelease control term. This appeal followed.
I. {¶10} In his first assignment of err or, 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 appell ant ente red guilty pleas to the two offenses. Generally, a guil ty 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 voluntar ily entering his guilty plea. State v. Colon , 8 th Dist. No. 104944, 99 N.E.3d.SCIOTO, 21CA3962 7

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, appe llant do es 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 Stat es Const itution, and Article I, Section 10 of the Ohio Constitu tion, 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 sho w that (1) counsel rendered a deficient performance, an d (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 estab lish def icient 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 bot h Strick land 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 repre sentatio n amounts to deficient performance, “a court must indu lge 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 properl y licens ed attorney is presumed to execute all duties ethicall y 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 d efendant can afford to hire, or who is willing to represent t he 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 ‘s hould 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
. 2019CA 00062, 2020

- Ohio

- 2964, ¶ 29.SCIOTO, 21CA3962 9

{¶15} Appellant argues that t he 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 ar raignmen t to his change of plea, appellant could have retain ed 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 retai n 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 ai m 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 (198 8). Thu s, “[a] defendant has only a presumptive right
to e mploy 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 balan cing the right to counsel of choice against the ne eds of fairness and against theSCIOTO, 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, qu oting United States v. Gonzalez

- Lopez , 548 U.S. 14 0, 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 compe lling re asons.’” State v. Howard , 5th Dist. Stark No. 201 2CA00061, 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 prevent ing an adequate defense.” United States v. Jenni ngs , 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

- 4 3, 744 N.E.2d 1163 (2001). {¶19} Generally, a defendant bears the burden to demonstrateSCIOTO, 21CA3962 11

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 ass igned 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. T his 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.’ St ate 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.
Sta te v. Ne wland, 4th Dist. Ross No. 02CA2666, 2003

- Ohio

- 323 0, ¶ 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 reque st for s ubstitute counsel was not timely. Due to appell ant’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

a rraignme nt, no communication occurred between appellant andSCIOTO, 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

moun t 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 t rial cou nsel 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 o f the
tr ial court’s inquiry into the defendant’s reques t. 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 satisf action w ith yourSCIOTO, 21CA3962 13

counsel,” appellant replied, “[y]es, Y our 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 iss ue and a rgued that counsel did not spend enough time w ith 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 i ndictment, the court informed appellant that n o 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 t o compos e himself and move forward. {¶24} As detailed abov e, 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 ade quately inquired about appellant’s complaint and his request for substitute counsel, this factorSCIOTO, 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 attorn ey and c lient 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, 52 3, 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 attorn ey. State v. Gordon , 149 Ohio App.3d 237, 2 002

- 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 insu fficient to justify a change in appointed co unsel.” 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 a rgued 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 co mmunicat ion. Further, appointed counsel informed t he 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 app ellant’s guilty plea to possession of coca ine 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 con clude th at 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 seco nd assignment of error, appellant assert s 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 appo inted 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 fail ed to sh ow any prejudice. {¶30} Successive represent ation 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 si multaneo us representation because “the attorney is no longer beholden to the former client.” State v. Jones, 5th Dist. Stark Nos. 2007

- CA

00041, 2007

- Ohio

- 00077, 2008

- Ohio

- 1068, ¶ 77. “The fear in successive representation cases is that the lawyer will f ail to

c ross - examine the former client rigorous ly 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 - e xamination for fear of misusing his con fidential 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 shoul d know o f an attorney’s possible conflict of i nterest 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 brea ches 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 tria l court’ s failure to inquire into a possible c onflict 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, 20 19

- Ohio

- 443, ¶ 26, citing State v. Gil lard , 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 24 9, ¶ 22 (12th Dist.). First, the
app ellant 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 appel lant mus t “ ‘establish that the alternative d efense 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 confli ct of interest that adversely affect s[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 repre sented c onflicting 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. 09CA 4, 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. I d. at ¶ 13, Jones,
supra, 2008

- Ohio

- 1068, a t ¶ 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 co nflict 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
po ssible 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, 10 0 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 “mere ly
state d 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 insuffi cient to demonstrate an actual con flict 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. I d. {¶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. Th e Twelft h 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 inter ests 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 intere st exist ed. 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 bil l of
par ticulars, a request for notice o f 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 codefend ant, Robert S. Tingler, on a pri or 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 appellan t’s plea in the case at bar. By contras t, 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, 2 020,
unt il his August 6, 2021 guilty ple a.

{¶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 th is case, trial counsel’s brief r epresentation 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 actua l confli ct of interest. Further, appell ant 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 represent ation of Rieser created any conflict.[Cite as State v. Tingler , 2022 - Ohio - 3792.]

{¶40} T herefore, 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

o verrule 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 Cou rt 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 up on 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 O hio an a pplication for a stay during t he 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 w ith the Supreme Court of Ohio in the 4 5

- 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 term inate 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
Fo r the Court

BY:

____________ _________________ Pe ter B. Abel e, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the tim e period for further appealSCIOTO, 21CA3962

25

commences from the da te of filing with the clerk.