[Cite as Cleveland v. Wells , 2023

- Ohio

- 1666.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CITY OF CLEVELAND , :

Plaintiff

- Appell ee , : No. 111494

v. :

RAVEN WELLS , :

Defendant

- Appell ant

. :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED AND REMANDED RELEASED AND JOURNALIZED: May 18, 2023

Criminal Appeal from the Cleveland Municipal Court

Case No. 2021

- CRB

- 013154

____ Appearances:

Mark Griffin, Cleveland Director of Law, Aqueelah A. Jordan, Chief Prosecuting Attorney, and Ameed M. Kollab, Assistant Prosecuting Attorney, for appellee

. Milton and Charlotte Kramer Law Clinic, Case Western Reserve University School of Law, and Andrew S. Pollis
, Supervising Attorney, Matthew Borcas and Rebecca Singer

- Miller, Legal Interns
, for a ppellant

.

EMANUELLA D. GROVES, J.:Defendant

- appellant, Raven Wells (“ Appellant ”)
, appeals her conviction

for aggravated disorderly conduct
, a first

- degree misdemeanor

.

For the reasons set forth below, we vacate the conviction and remand to

the trial court for proceedings consistent with this opinion.
Background and Procedural History

In December 2021, th e c ity of Cleveland (“City”) charged Appellant with
aggravated menacing under C.C.O. 621.06

. Over the following three months,
Appellant attended seven pretrials related to the charge, with a ppellant’s c ounsel

(“A.C.”) representing her in all but the first pretrial

. On March 8, 2022, A.C. arrived

late to Appellant’s scheduled pretrial on Zoom ; s ubstitute c ounsel (“S.C. ” ) had
temporarily stepped in on her behalf. S.C. had not previously appeared in the case
and stated that she was attending the hearing on behalf of A.C. T he trial court

sc heduled the trial date for March 23 , 2022. On March 23, 2022, t he prosecutor, all
witnesses, and Appellant were present , but A.C. did not appear

. The court attempted

to contact A.C. to no avail

. Eventually, the court rescheduled the case until April 6,

2022 , and dismissed the City’s witnesses. However, the victim remained.

After the court ordered the continuance, S.C. arrived and indicated she

was present on A.C.’ s behalf and the following exchange with the trial court occurred :

THE BAILIFF : Counsel, would you state your name, for the record[?]

SUBSTITUTE COUNSEL : Sure.

SUBSTITUTE COUNSEL : * * * Here on behalf of * * * for Raven Wells.

THE COURT: Scheduled for trial at 11:00.SUBSTITUTE COUNSEL : I understand. She asked me to cover it. I was

in a different courtroom. She ’ s not in the building, so I apologize.

THE COURT: You ’ re covering the tri al?

SUBSTITUTE COUNSEL : I ’ m not doing the trial, no. I ’ m asking for a continuance.

THE COURT: Continuance is denied. Tell her she needs to get over here in five minutes.

SUBSTITUTE COUNSEL : She ’ s in Juvenile Court.

THE COURT: She needs to get over here in five minutes. She scheduled this trial date, so she needs to get over here in five minutes.

SUBSTITUTE COUNSEL : Okay.

THE COURT: These people have been here for more than an hour. Then she ’ s not responding to her phone or text messages so it ’ s a no.

* * *

CITY : This is why I wanted to make it clear. I told the other attorney there is some evidence that I have today from the day of the incident. I haven ’ t been able to reach Attorney * * * to give it to her, in the first place, but I wanted to give it to her prior to trial. It was a video that I was going to use, so it ’ s pretty important.

(Tr. 56

- 57

. )
Subsequently , t he trial court went off the record. Upon resuming on the

record
, S.C. requested to negotiate a resolution with the City whereby, t he City
relayed an offer previously made to the Appellant.

S .C. consulted Appellant, and subsequently, Appellant agreed to plead
guilty to aggravated disorderly conduct, a misdemeanor of the first degree. The trial
court informed Appellant of her rights, without advi sing her of the effect of the plea

.Thereafter
, the trial court accepted her plea, found Appellant guilty of aggravated

disorderly conduct, and scheduled Appellant’s sentencing for April 6, 2022.

On June 30, 2022, the trial court sentenced Appellant to 180 days in jail
(suspended), a $1
, 000 fine ($900 suspended), and five years of probation on the
aggravated disorderly conduct conviction. Appellant timely appeals and raises the
following two assignm ents of error:
Assignment of Error No. 1

T he t ria l court erred in accepting Ms. Wells’ guilty plea without first advising Ms. Wells of the plea’s effect.

Assignment of Error No. 2
The trial court erred in accepting Ms. Wells’ guilty plea because the lack of effective representation rendered her plea involuntary.
Law and Analysis

The City concedes that the trial court should not have proceeded without
Appellant’s retained counsel

. Sin c e resolution of the second assignment of error is
dispositive, we will address it first.

Ineffective Assistance of Counsel

Appellant’s second assignment of error alleges that Appellant’s plea was
involuntary based on ineffective assistance o f counsel. The standard of review for

ineffective assistance of counsel claims is de novo. State v. Weaver , Slip Opinion No.

2022

- Ohio

- 4371, ¶ 25 , citing Stat e v. Gondor
, 112 Ohio St.3d 377, 2006

- Ohio

- 667 9 ,
860 N.E. 2d 77

. “ Due process requires that a defendant’s plea be made knowingly,
intelligently, and voluntarily ; otherwise, the defendant’s plea is invalid.” State v.Medina
, 8th Dist. Cuyahoga No. 109693, 2021

- Ohio

- 1727, ¶ 6, citing State v. Bishop
,

156 Ohio St.3d 156, 2 018

- Ohio

- 5132, 124 N.E.3d 766, ¶ 10, citing State v. Clark
, 119

Ohio St.3d 239, 2008

- Ohio

- 3748, 893 N.E.2d 462, ¶ 25

. S ee State v. Engle
, 74 Ohio

St.3d 525, 527, 660 N.E.2d 450 (1996)
, citing Kercheval v. United States , 274 U.S.

220, 223, 47 S.Ct. 582 , 583, 71 L.Ed. 1009, 101 (1927) (“When a defendant enters a
plea in a criminal case, the plea must be knowingly, intelligently, and voluntarily.

Failure on any of those points renders enforcement of the plea unconstitutional

under both the United State Cons titution and the Ohio Constitution

. ” ) ; State v.

Robinson , 8th Dist. Cuyahoga No. 110467, 2022

- Ohio

- 1311, ¶ 20. However, a guilty
plea waives a defendant’s right to claim that he or she was prejudiced by ineffective
assistance of counsel, except to the ext ent that the ineffective assistance of counsel

caused the defendant’s plea to be less than knowingly, intelligently , and voluntarily.

State v. Williams , 8th Dist. Cuyahoga No. 100459, 2014

- Ohio

- 3415, ¶ 12

. Appellant
argues that her counsel’s failure to appear on the day of trial, and S.C.’s inability to
proceed with the trial, combined with the trial court’s refusal to continue the matter

rendered her plea involuntary b ecause it forced her to accept a plea she would not
otherwise have accepted.

To establish that trial counsel was ineffective, a defendant must show

that counsel ’ s performance was deficient and that the deficient performance
prejudiced the defendant. State v. Bunch
, Slip Opinion No. 2022

- Ohio

- 4723, ¶ 26 , citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674

. This requires showing that counsel made errors so serious that counsel was notfunctioning as the “ counsel ” guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the

defense. Id

. Here, after consultation with S.C., A ppellant agreed to plead guilty,
despite her consistent desire to have a tri al. So , the question is whether S.C. was

deficient in her representation of Appellant. As a general matter, defense counsel’s
tactical decisions and trial strategies

— even “debatable” ones

— do not constitute

ineffective assistance of counsel. See e.g. , State v. Black , 2019

- Ohio

- 4977, 149
N.E.3d 1132, ¶ 35 (8th Dist.) ; State v. Foster , 8th Dist. Cuyahoga No. 93391, 2010

-
Ohio

- 3186, ¶ 23; see also State v. Conway , 109 Ohio St.3d 412, 2006

- Ohio

- 2815, 848

N.E.2d 810, ¶ 101, 111. Reviewing courts “will ordin arily refrain from second

guessing strategic decisions counsel make at trial,” even where trial counsel’s strategy
was “questionable” and even where appellate counsel argues that they would have
defended against the charges differently. State v. Myers , 97 Ohio St.3d 335, 2002

-
Ohio

- 6658, 780 N.E.2d 186, ¶ 152; State v. Mason , 82 Ohio St.3d 144, 169, 694

N.E.2d 932 (1998); State v. Quinones , 8th Dist. Cuyahoga No. 100928, 2014

- Ohio

5544, ¶ 25.
Given the circumstances presented in this case, this general rul e must
be rejected. S.C. was deficient when she advised Appellant to plead guilty.
Additionally, this court must consider the City’s concession on the second assignment
of error, in that the trial court should not have proceeded with the matter without
Appellant’s retained counsel. A.C. did not appear for Appe llant’s trial on March 23,
2022. Instead, S.C. appeared on behalf of A.C. When S.C. arrived, she stated, “I’mnot doing the trial, no. I am asking for a continuance.” (Tr. 56

. ) Despite having

continued the trial

— prior to S.C.’s arrival, the trial cou rt denied S.C.’s request for a
continuance. After the trial court demanded three times that A.C. appear for trial
within five minutes, S.C. requested an opportunity to negotiate a plea with the City
on Appellant’s behalf. However, the record established that the prosecutor informed
the court that he had failed to give A.C. evidence he deemed important and intended
to use at trial. Consequently, neither the Appellant nor S.C. had an opportunity to

review all the evidence.

The lack of an opportunity for the accused’s counsel to investigate the
circumstances of the offense and prepare a defense has been held to be a denial of

effective assistance of counsel. State v. Emory , 12 Ohio App.3d 41, 465 N.E.2d 920
(8th Dist.1983). Here, S.C. had not reviewed Ap pellant’s case. Moreover, she did not
have a meaningful consultation with Appellant regarding the criminal charge against
her. S.C. changed the purpose of her appearance to request a continuance to a
decision to recommend Appellant plead guilty, without a complete review of all the
evidence. Undeniably, S.C. was not prepared for trial. She was not Appellant’s
retained counsel. Any action other than a request for a continuance was deficient
performance. S.C.’s decision to recommend Appellant to plead g uilty to an amended
charge resulted in Appellant receiving ineffective assistance of counsel.

Nonetheless, ineffective assistance of counsel alone is not sufficient to
void Appellant’s guilty plea. Counsel’s deficient performance must have prejudiced

the defendant. As previously stated, in an ineffectiveness of counsel claim where adefendant pleads guilty, the only prejudice recognized is when the ineffectiveness

caused the plea to be less than knowing, intelligent and voluntary. In this case, an

examin ation of whether Appellant’s guilty plea was knowing , intelligent and
voluntary cannot begin with S.C.’s appearance before the trial court on March 23,

2022.

T he record reflects that Appellant intended to exercise her right to a

trial. She had appeared f or seven pretrials and the City had previously offered
Appellant a plea, which she rejected. Appellant was in a similar position as the

defendant in State v. Reber , 7th Dist. Mahoning No. 17 MA 0028, 2018

- Ohio

- 4016,

¶ 39

. In that case “ trial counsel was unprepared for trial * * * due to extensive
discovery provided by the state and lack of time to prepare; d efendant’s guilty plea
was not knowing, intelligent, and voluntary since the trial court coerced him into
pleading guilty .” Id

. In Reber , w hen the trial court denied the request for a

continuance , defendant was faced with the decision to either proceed immediately to
trial with counsel who was not prepared to try the case or to plead guilty. Id.

Here, o n March 23, 2022, A.C. failed to appear for trial. For over an
hour, the trial court attempted unsuccessfully to contact A.C. Eventually, the trial
court continued the case and excused the City’s witnesses. Subsequently, S.C.
appeared with the noted int ention to secure a continuance for Appellant’s trial. S.C.stated that A.C. was delayed in a juvenile court 1 hearing and asked for a continuance.

T he court denied S.C.’s oral motion for continuance and repeatedly told S.C. that she
needed to get A.C. “ over here ” in five minutes to begin the trial. On the third order

to S.C. to get A.C. “ over here
, ” the trial court stated, “ She scheduled this trial date, so
she needs to get over here in five minutes. These people have been here for more
than an hour. Then she’s not responding to her phone or text messages so it’s a no.”

( Tr. 9

. ) Shortly after this exchange, S.C. asked if t here was an offer. To this inquiry,
the prosecutor answered, “ There was previously, but.” ( Tr. 9. ) At that point, the
prosecutor asked to deal with the no

- contact order violation. After the violation was
addressed, the trial court stated, “Okay, the att orney should be en

- route.” ( Tr

. 12. )
After discussing where the attorney was again, the trial court continued its insistence

on the trial. Finally, the prosecutor state d that there may be a resolution and S.C.
responded, “T hat’s correct .”

Unlike Reb e r , Appellant did not raise the court’s refusal to grant a
continuance as an assignment of error
, so we need not review the court’s denial of

the motion for continuance for an abuse of discretion. But because we must consider
the totality of the circumstances, we cannot ignore the trial court’s denial of S.C.’s

motion to continue the trial after having already granted a continuance and releasing
the city’s witnesses. To prevail under the prejudice prong, a de fendant need not show

1 We take judicial notice that t he distance from Cuyahoga County Juvenile Court to the Justice Center is approximately five miles and the drive
, alone
, would have taken A. C . at least 15 minutes to complete

. Google Maps, Directions from Cuyahoga County Juvenile Court to Cuyahoga County J ustice Center Complex

.that he or she would have been better off going to trial. State v. Romero , 156 Ohio

St.3d 468, 2019

- Ohio

- 1839, 129 N.E.3d 404, ¶ 30

. Instead, a defendant must show
that there is a reasonable probability that, but for counsel ’ s error s, he or she would
not have pleaded guilty and would have insisted on going to trial. Id

. at ¶ 28

. In
assessing whether it would be rational for a defendant to go to trial instead of
pleading guilty, the court should consider the totality of circumstance s. Id

. at ¶ 29

. Here, the Appellant only entered a plea of guilty after all the above, including the trial
court’s repeated demands for A.C.’s presence and S.C.’s unpreparedness to proceed

to trial. Undoubtedly, the Appellant felt undue pressure to resolve the matter

. Despite the absence of her retained counsel, the trial court was adamant about the
trial proceeding. However, S.C. was unprepared to proceed and alternatively
recommended acceptance of a negotiated plea offer. Cle arly, the City’s conc ession on
this assignment of error is demonstrative of the dynamics of the proceedings.
Therefore, given the totality of the circumstances under which the Appellant entered
her guilty plea, we find that counsel’s ineffective assistance caused the Appellan t to
have not entered her plea of guilty knowingly, intelligently
, and voluntarily.

Accordingly, Appellant’s second assignment of error is sustained

. The

conviction is vacated and the matter is remanded to the trial court for proceedings

consistent with this opinion

. Since this finding vacates the Appellant ’s conviction,
Appellant’s first assignment of error is deemed moot.

Judgment vacated and remanded.

It is ordered that a ppellant recover from a ppellee costs herein taxed.The court finds there were reasonable grounds for this appeal.

It is ordered that a special mand ate issue out of this court directing the

C leveland Municipal C ourt to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.

___________________________ EMANUELLA D. GROVES, JUDGE

KATHLEEN ANN KEOUGH, P.J. , and MICHAEL JOHN RYAN, J., CON C UR