[Cite as State v. Davis, 2014-Ohio-5144.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 101208

STATE OF OHIO

 

PLAINTIFF-APPELLEE 

vs. 

RICHARD DAVIS

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-13-570872-A 

BEFORE: S. Gallagher, J., Celebrezze, P.J., and Kilbane, J. 

RELEASED AND JOURNALIZED: November 20, 2014 
ATTORNEY FOR APPELLANT 

R. Brian Moriarty 

2000 Standard Building 

1370 Ontario Street 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Anthony Thomas Miranda 

Assistant Prosecuting Attorney 

Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, OH 44113 
SEAN C. GALLAGHER, J.: 

{¶1} Appellant Richard Davis appeals his conviction on two counts of rape and one 

count of kidnapping. For the reasons stated herein, we affirm the judgment of the trial court. 

{¶2} On March 5, 2013, appellant was indicted on two counts of rape of a minor under 

the age of 13 with a sexually violent predator specification, each an unclassified felony, and two 

counts of kidnapping with sexual motivation and sexually violent predator specifications, each a 

felony of the first degree. At his arraignment on March 8, 2013, appellant was appointed trial 

counsel and appellant entered a plea of not guilty to the indictment. Over the course of the next 

year, defense counsel filed appropriate discovery motions, the state responded to the discovery 

requests, and 14 pretrials were held. 

{¶3} It was not until the date of trial, March 5, 2014, that the court was informed 

appellant wished to disqualify his attorney. Although it appears that appellant attempted to send 

a motion to disqualify to the judge in October 2013, no motion was ever filed with the court. 

Appellant expressed his displeasure with his counsel, making general assertions that “he’s been 

telling me * * * lies,” “it’s always a heated discussion,” “he has no interest,” and “[he’s] not 

representing me.” Appellant also claimed his counsel had lied to his family and “hung up on 

them.” 

{¶4} Defense counsel indicated that the problem was appellant and his family did not like 

what they were hearing. Defense counsel stated he had discussed the case with appellant, seen 

appellant in jail, had appellant’s mental health examined, and explained to appellant that the rape 

charges were unclassified felonies that carried a life sentence. 

{¶5} The court indicated that the victim had been flown in for trial and that the case 

would go forward to trial. The court denied the motion to disqualify counsel. 
{¶6} Appellant proceeded to state he could not go to trial with defense counsel and that 

he was ready to accept the plea deal. Before accepting appellant’s plea, the trial court ensured 

that appellant understood his constitutional rights, the nature of the charges, the maximum 

penalties that could be imposed, the plea that was being offered, and the effect of a guilty plea. 

{¶7} Appellant continued to express that he did not wish to go to trial with defense 

counsel. Defense counsel indicated that he had been over the case with appellant “dozens and 

dozens” of times and that appellant simply did not like what he was hearing. Counsel indicated 

that he had two similar cases with appellant’s cell mates that were resolved with plea deals 

involving less prison time. The prosecution was not offering a similar plea deal in appellant’s 

case. The prosecutor confirmed that he had a discussion with defense counsel about another 

case that resulted in a three-year sentence, but the state’s position was that appellant’s case 

involved a totally different factual scenario. 

{¶8} Appellant then indicated that the victim in the case lied about her age. The court 

expressed its understanding that there was DNA evidence in the case and that when the victim is 

under the age of 13, consent is not a defense in the case. The court indicated that appellant was 

facing a potential of 25 years to life, and that the plea offer was a flat ten years. Appellant stated 

he did not really want to take the deal, “but I guess I got to.” The court stated it was prepared to 

proceed with trial and that it was appellant’s choice, to which appellant stated he was not going 

to trial with his defense counsel. 

{¶9} The court again explained to appellant the nature of the charges and the potential 

sentence. The appellant stated he would take the deal. After further discussions, the plea offer 

was placed on the record. The court complied with Crim.R. 11 and found that appellant’s plea 

was made knowingly, intelligently, and voluntarily. 
{¶10} Appellant entered a plea of guilty to two counts of rape, as amended, each a 

first-degree felony in violation of R.C. 2907.02(A)(2), and one count of kidnapping, as amended, 

a first-degree felony in violation of R.C. 2905.01(A)(4) with a sexual motivation specification. 

The remaining kidnapping count was dismissed. The trial court imposed a ten-year prison 

sentence and classified appellant as a Tier III sex offender. 

{¶11} Appellant filed this appeal, raising two assignments of error for our review. Under 

his first assignment of error, appellant claims he was denied his right to counsel and the trial 

court abused its discretion in denying his motion for new counsel. Under his second assignment 

of error, appellant claims he was deprived of his right to effective assistance of counsel because 

his trial counsel failed to timely bring before the court the issues concerning counsel’s 

representation. 

{¶12} Although an indigent defendant has the right to the appointment of counsel, he has 

no right to have a particular attorney represent him and must demonstrate “good cause” in order 

for the substitution of counsel to be warranted. State v. Williams, 99 Ohio St.3d 439, 

2003-Ohio-4164, 793 N.E.2d 446, ¶ 55; State v. Cowans, 87 Ohio St.3d 68, 72, 1999-Ohio-250, 

717 N.E.2d 298. Three recognized examples of “good cause” that would warrant the discharge 

of court-appointed counsel include (1) a conflict of interest; (2) a complete breakdown of 

communication; and (3) an irreconcilable conflict that could cause an apparently unjust result. 

State v. Burrell, 11th Dist. Lake No. 2013-L-024, 2014-Ohio-1356, ¶ 24. Before an indigent 

defendant is entitled to discharge court-appointed counsel, he must show “a breakdown in the 

attorney-client relationship of such magnitude as to jeopardize the defendant’s right to effective 

assistance of counsel.” State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988), paragraph 
four of the syllabus. A trial court’s denial of a motion to substitute counsel is reviewed for an 

abuse of discretion. Cowans at 73. 

{¶13} In the instant case, appellant’s dissatisfaction with his trial counsel was stated in 

general terms. Appellant did not give any substantial reason for desiring new counsel or provide 

specificity as to the alleged “lies” and lack of representation. Although the record suggests 

appellant attempted to send a motion to the court in October 2013, the date of trial was the first 

time the trial court was made aware of any dissatisfaction with counsel by appellant. The trial 

court engaged in a discussion on the record. The record does not reflect that trial counsel was 

unprepared to proceed with trial, nor does it suggest such a breakdown in the attorney-client 

relationship that appellant failed to receive adequate representation. Even if appellant did not 

get along well with counsel, a lack of rapport is not sufficient to constitute a total breakdown 

when it does not inhibit the attorney from both preparing and presenting a competent defense. 

State v. Lewis, 11th Dist. Lake No. 2012-L-074, 2013-Ohio-3974, ¶ 48. Because appellant 

failed to demonstrate a complete breakdown in communications with counsel or “good cause” to 

substitute counsel, we cannot find that the trial judge abused his discretion in denying the 

motion. 

{¶14} Likewise, because the record contains no evidence that would justify substitution 

of counsel, we are unable to find that trial counsel was ineffective for failing to raise issues 

concerning his representation ahead of trial. Further, appellant has failed to show that his guilty 

plea was not knowing, voluntary, and intelligent, or that his counsel’s performance was deficient 

or that he was prejudiced by any deficiency. Therefore, we are unable to find that appellant 

failed to receive effective assistance of counsel. Appellant’s assignments of error are overruled. 

{¶15} Judgment affirmed. 
It is ordered that appellee recover from appellant 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 common pleas 

court to carry this judgment into execution. The defendant’s conviction having been affirmed, 

any bail pending appeal is terminated. Case remanded to the trial court for execution of 

sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

SEAN C. GALLAGHER, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

MARY EILEEN KILBANE, J., CONCUR