[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, 2014ATTORNEY 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 44113SEAN C. GALLAGHER, J.: {¶1} Appellant Richard Davis appeals his c onviction on two counts of rape and one count of kidnapping. For the reasons stated herei n, 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 uncla ssified felony, and two counts of kidnapping with sexual motivation and sexually violen t predator specifications, each a felony of the first degree. At his arraignm ent 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 appr opriate discovery motions, the st ate responded to the discovery requests, and 14 pret rials were held. {¶3} It was not until the date of trial, March 5, 2014, that the court was informed appellant wished to disqualify hi s attorney. Although it appears th at appellant a ttempted to send a motion to disqualify to the judge in October 2013, no motion was ever filed with the court. Appellant expressed his displeasur e with his counsel, making genera l assertions that “he’s been telling me * * * lies,” “it’s always a heated di scussion,” “he has no inte rest,” and “[he’s] not representing me.” Appellant al so claimed his counsel had lie d to his family and “hung up on

them.” {¶4} Defense counsel indicated th at the problem was appellant and his family did not like what they were hearing. Defe nse counsel stated he had discu ssed the case with appellant, seen appellant in jail, had appellant’s mental health ex amined, 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 defe nse counsel and that he was ready to accept the plea deal. Before accep ting appellant’s plea, the trial court ensured that appellant understood his c onstitutional 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 expre ss that he did not wish to go to trial with defense

counsel. Defense counsel indicat ed 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 differe nt 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 evid ence in the case and that when the victim is under the age of 13, consent is not a defense in th e case. The court indicat ed 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 choi ce, to which appellant stated he was not going

to trial with his defense counsel. {¶9} The court again explained to appellant th e 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 w ith Crim.R. 11 and found that appellant’s plea was made knowingly, inte lligently, 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 mo tivation specification. The remaining kidnapping count was dismissed. The trial cour t imposed a ten-year prison sentence and classified appellant as a Tier III sex offender. {¶11} Appellant filed this appeal, raising two a ssignments of error for our review. Under his first assignment of error, a ppellant claims he was denied hi s 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 wa s deprived of his right to effec tive 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 righ t to the appointment of counsel, he has no right to have a particular a ttorney 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 conf lict of interest; (2) a complete breakdown of communication; and (3) an irreconc ilable 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 discharg e 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), paragraphfour of the syllabus. A trial cour t’s denial of a motion to substitu te counsel is reviewed for an

abuse of discretion. Cowans at 73. {¶13} In the instant case, appellant’s dissatisfac tion 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 representati on. Although the record suggests appellant attempte d to send a motion to the court in Oct ober 2013, the date of trial was the first

time the trial court was made aware of any dissatisfaction w ith counsel by appe llant. The trial court engaged in a discussion on the record. The record does not reflect that trial counsel was unprepared to proceed with tria l, nor does it suggest such a br eakdown in the attorney-client relationship that appellant failed to receive adequate represen tation. 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 pr eparing and presenting a competent defense.

State v. Lewis , 11th Dist. Lake No. 2012-L-074, 2013-Oh io-3974, ¶ 48. Because appellant failed to demonstrate a complete breakdown in communications w ith counsel or “good cause” to substitute counsel, we cannot find that the tria l 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 ineffec tive 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 pe rformance was deficient or that he was prejudiced by any deficiency. Therefore, we are unable to find that appellant

failed to receive effective assist ance of counsel. Appellant’s a ssignments of error are overruled. {¶15} Judgment affirmed.It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reas onable 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. Th e defendant’s conviction having been affirmed, any bail pending appeal is ter minated. 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 Appella te Procedure.

SEAN C. GALLAGHER, JUDGE FRANK D. CELEBREZZE, JR., P.J., and MARY EILEEN KILBANE, J., CONCUR