COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60874 STATE OF OHIO : ACCELERATED CASE : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : DAVID SMITH : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 03, 1991 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE COMMON PLEAS COURT CASE NO. 256221 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES PROSECUTING ATTORNEY OF CUYAHOGA COUNTY, OHIO BY: EDWARD O. PATTON ASSISTANT PROSECUTING ATTORNEY THE JUSTICE CENTER 1200 ONTARIO CLEVELAND, OHIO 44113 For Defendant-Appellant: DANIEL E. SHIELDS 3406 BRIDGE AVENUE CLEVELAND, OHIO 44113 -2- PER CURIAM: On September 20, 1990, defendant-appellant David Smith ("appellant") and co-defendant Lavern Williams were indicted by the Cuyahoga County Grand Jury for four counts of aggravated robbery, in violation of R.C. 2911.01, each with a firearm specification, and two counts of having a weapon while under a disability, in violation of R.C. 2923.13, with violence and firearm specifications. At his arraignment on September 26, 1990, appellant pleaded not guilty. A pre-trial was held on October 1, 1990 and the case was set for trial for October 15, 1990, in order to avoid a speedy trial problem. On the day of trial, appellant requested a continuance, in order to find another attorney. Apparently, appellant was not happy with Chris D. Stanley, his court- appointed attorney. The trial court denied appellant's motion for a continuance and permitted appellant to proceed "pro se" with Chris Stanley as his back-up counsel. The trial court specifically found that appellant's court-appointed attorney, Chris Stanley, was competent. On the same day, appellant's co-defendant was prepared to proceed to trial. During the voir dire, the state dismissed the two counts of having a weapon while under disability. As the voir dire continued, appellant requested, again, a continuance, in order to find another attorney and the trial court overruled the motion. -3- The trial court reaffirmed its position that appellant had a competent attorney, but was entitled to proceed on his own. Also during voir dire, Attorney Chris Stanley informed the trial court that appellant did not want him to represent him. Chris Stanley further indicated that it would be best for everyone if he was removed from the case. The trial court stated that either Chris Stanley or appellant would have to go forward with the case. On October 16, 1990, during a break in the voir dire proceedings and outside the presence of the jury, appellant entered into a plea agreement. Appellant was explained the consequences of his plea and accepted the State's offer. Appellant pleaded guilty to two counts of aggravated robbery, both with gun specifications. The remaining counts were nolled. Appellant was sentenced to two consecutive terms of three years actual incarceration for the firearm specification and two concurrent terms of five to twenty-five years for the aggravated robbery convictions. Appellant filed a timely notice of appeal and subsequently raised the following assignments of error: I. THE COURT ERRED IN ACCEPTING DEFENDANT- APPELLANT'S GUILTY PLEA WHEN IT WAS CLEAR THAT DEFENDANT-APPELLANT DID NOT ACCEPT THE PLEA KNOWINGLY, INTELLIGENTLY, AND VOLUN- TARILY IN ACCORDANCE WITH CRIMINAL RULE 11(C)(2). II. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE COURT FAILED TO PERMIT HIS COUNSEL TO WITHDRAW IN ACCORDANCE WITH CRIMINAL RULE 12(E). -4- In his first assignment of error, appellant contends that his guilty plea was not made knowingly, intelligently and voluntarily. In the instant case, the record of the Crim. R. 11(C) hearing indicates that the trial court advised appellant of his constitutional rights and the consequences of entering a guilty plea. The trial court also informed appellant of the maximum and minimum penalties arising from his guilty plea. Further, the record reveals that appellant and the trial court extensively discussed the guilty plea and its ramifications and consequences. For example, regarding the terms of appellant's sentence, the following colloquy occurred at trial: THE COURT: All right. Come on up here, Mr. Smith. You can step down here in front of the bench. All right. Mr. Smith, Mr. Stanley has suggested to me that there might be a possibility of resolution if you felt that you wouldn't get more than 11 years. Is that the idea? MR. SMITH: Or more than ten. THE COURT: More than ten. All right. So that you understand the structure of penalty in the state of Ohio, if you plead guilty to the use of a firearm in this case, the law says you must get a sentence of three years actual incarceration. Do you understand that? MR. SMITH: So the case carries up to a ten and a quarter; right? THE COURT: No. This case? MR. SMITH: I am talking about without the -5- gun specification, it carries up to a ten and a quarter. THE COURT: Ten to 25, without the gun spec, is correct. MR. SMITH: Then without the -- THE COURT: Three more. Three more. On the first count. Then the second count is ten to 25 or ten and a quarter, as you say, with three more for the next gun spec; and the the next one is ten to 25, three more for the gun spec. Each one potential maximum would be 13 to 25 years. You understand that? MR. SMITH: Right. THE COURT: All right. The plea in the case is gun specification, three a piece. That's six and the minimum you could get is five to 25, and six and five is 11. Do you understand the penalty structure? You don't? MR. SMITH: My understanding was the deal would be ten to 25 with the three years added into it. We didn't go on about a consecutive sentencing -- the two threes would be ranked consecutive. We went into the one three would be consecutive -- we would make two a ten and a quarter. THE COURT: So you are figuring if you get 15 to 25 you would be happy? MR. SMITH: No, I will not be happy. THE COURT: Oh. MR. SMITH: I figure -- I am just talking about ten and a quarter together. Thirteen to 25, your Honor, I would not come home until I was about 30 something. I am 22 now. I am going to have to do at least nine and a half, maybe ten years, before I come home. THE COURT: So you want something less. -6- MR. SMITH: I am really -- see, I have no win in this case, your Honor. I am willing to accept a deal of three years mandatory ran into with the ten and a quarter. THE COURT: What is the State's -- MR. SMITH: Which would make it a ten and a quarter total. I do three years day for day on the gun and then I start on the time. (Tr. 62-65). Based upon the totality of the circumstances, we find that appellant understood the nature of the charges against him and that the trial court properly advised appellant of the same. Appellant's first assignment of error is without merit and is overruled. In his second assignment of error, appellant argues that the trial court denied him effective assistance of counsel by failing to permit him to obtain a different attorney. Appellant further argues that the trial court should have granted him a continuance. In State v. Pruitt (1984), 18 Ohio App. 3d 50, this court held that a trial court violates a defendant's right to effective assistance of counsel in denying a request for substitution of counsel where communications and cooperation have deteriorated to such a point that the attorney-client relationship no longer exists. In order to warrant a substitution of counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict. Id. at 57. -7- A review of the record fails to demonstrate the existence of a lack of communication between appellant and defense counsel. It appears the only purpose of appellant's request for new counsel was solely for the purpose of delay, in an attempt to forestall the trial and/or a change of plea. The record indicates that appellant had no problems with his attorney on the day of the first pre-trial. The record also reveals that appellant raised no objection to his attorney during the period between the pre-trial and the day of trial. Appellant only complained about his counsel when his case came to trial. Since the record demonstrates no lack of communication or cooperation between appellant and Chris Stanley, we cannot conclude that the trial court abused its discretion in not continuing the trial. See State v. Hall (June 18, 1987) Cuyahoga App. No. 53196, unreported. Appellant's second assignment of error is without merit and is overruled. Trial court judgment is affirmed. -8- It is ordered that appellee recover of appellant its 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. ANN DYKE, JUDGE LEO M. SPELLACY, JUDGE, CONCUR; JAMES D. SWEENEY, JUDGE, DISSENTS (SEE DISSENTING OPINION ATTACHED) (TWO JUDGES CONCUR; ONE JUDGE DISSENTS) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60874 STATE OF OHIO : : : : PLAINTIFF-APPELLEE : D I S S E N T I N G : vs. : O P I N I O N : : DAVID SMITH : : : DEFENDANT-APPELLANT : DATE: OCTOBER 3, 1991 JAMES D. SWEENEY, J., DISSENTING: I respectfully dissent. The facts set forth by the majority are clear from the record, however, on the date of trial, appellant indicated to the court that he no longer wished his assigned counsel to represent him. A family member had attempted to hire new counsel, but was unsuccessful. Appellant requested additional time to hire counsel, which the court denied. Appellant also indicated to the court that his assigned counsel had not done any investigation into his case. (T. 17, 18) It appears that there were no witnesses subpoenaed for trial. (T. 18) On the record, appointed counsel said of appellant, "He is not happy with my performance and wishes not to proceed with me, - 2 - and there is a potential conflict of interest here that, through privileged communications, Mr. Smith has indicated that he wants me to do certain things at trial that would be unethical for me to do at trial." (T. 9) (Emphasis added) In State v. Pruitt (1984), 18 Ohio App. 3d 50, this court held: Although the Supreme Court has recently said that the Sixth Amendment does not guarantee a "meaningful relationship" (whatever that may be) between the accused and his counsel, Morris v. Slappy (1983), 461 U.S. 1, the concern here is with the absence of any attorney-client relationship. "In order to warrant a substitution of counsel during trial, the defendant must show good cause, SUCH AS A CONFLICT OF INTEREST, a complete breakdown in communication or an irreconcilable conflict which leads to an apparently unjust verdict. * * * If a court refuses to inquire into a seemingly substantial complaint about counsel when he has no reason to suspect the bona fides of the defendant, or if on discovering justifiable dissatisfaction a court refuses to replace the attorney, the defendant may then properly claim denial of his Sixth Amendment right. * * * In the absence of a conflict which presents such a Sixth Amendment problem, the trial court has discretion to decide whether to grant a continuance during the course of trial for the substitution of counsel, and that decision will be reversed only if the court has abused its discretion. * * *" (Citations omitted.) United States v. Calabro (C.A. 2, 1972), 467 F. 2d 973, 986. (Emphasis added.) Thus, the trial court only has discretion to cursorily overrule a motion for new counsel where there is no denial of appellant's Sixth Amendment right. Here, where a potential - 3 - conflict of interest existed, the court was obligated to make further inquiries, and state the reasons for the denial of the motion on the record. For the reasons above, I would reverse and remand for a new trial. .