Summary
In State v. Beranek (Dec. 14, 2000), Cuyahoga App. No. 76260, this court noted that, "[i]n both Deal and Prater, the case was remanded to the judge for the limited purpose of inquiring into the defendant's allegations, with instructions to re-enter the judgment of conviction if the allegations were unfounded. Deal, 17 Ohio St.2d at 20, 244 N.E.2d at 743-44; Prater, 71 Ohio App.3d at 85-86, 593 N.E.2d at 48."
Summary of this case from State v. HarrisonOpinion
No. 76260.
Decided December 14, 2000.
CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case, No. CR-370725.
William D. Mason, Cuyahoga County Prosecutor, John R. Mitchell, Assistant County Prosecutor, Cleveland, Ohio, for Plaintiff-Appellee.
Nicholas K. Thomas, Cleveland, Ohio, for Defendant-Appellant.
JOURNAL ENTRY AND OPINION
This is an appeal from a jury verdict and sentence following trial before Judge Nancy R. McDonnell. Joseph Beranek claims he should not have been convicted for three counts of felonious assault and one count of domestic violence. He asserts it was error to deny him the right to remove his lawyer, the jury was not given the proper instruction on the felonious assault charge, the jury was not given instruction on the lesser offense of aggravated assault and the State never proved his guilt beyond a reasonable doubt. We vacate the sentence, reverse the judgment and remand with instructions.
On November 6, 1998, Beranek, then 22 years old, his girlfriend, Betty Coleman, and her eighteen-month-old daughter, lived in the upper apartment of 2017 West 83rd Street in Cleveland. Larry and Donna Fine, the building owners, lived downstairs. Coleman's niece, Melissa Coleman, was staying overnight. The mayhem occurring the following morning resulted in a December 30, 1998 indictment against Beranek for three counts of felonious assault, two counts of aggravated burglary and two counts of domestic violence.
On March 2, 1999, prior to voir dire, Beranek's lawyer informed the judge that his client wished to discharge him.
THE JUDGE: On behalf of the defense any pretrial motions?
MR. FRYE [Beranek's attorney]: Just one, your Honor. My client would like to have me removed as his counsel.
THE JUDGE: All right. We are here on the day of trial. I have no written motion. I see that you are appointed. Your motion is untimely and it will not be granted.
All right. Are we ready for the jury, gentlemen? After the jury was chosen, and prior to opening statements, the judge addressed the issue again:
THE JUDGE: And early this morning we talked about you wanted to dismiss your lawyer. As you're aware this lawyer is assigned to you by the Court. Today is the trial date. No other attorney appeared on your behalf today. Am I correct to assume you have not contacted another lawyer?
BERANEK: Yes, your Honor.
THE JUDGE: Just this morning you told Mr. Frye for the first time you didn't want to have him?
BERANEK: Yes, your Honor.
THE JUDGE: Okay. All right.
From the transcript we glean the following: Beranek and Coleman argued sometime in the early evening. Beranek then ended the relationship and moved out of the apartment, although he retained a key. Intoxicated and accompanied by his sister, Renee Beranek, he returned to the apartment at approximately 2:30 a.m. on November 7th and resumed his argument with Coleman. Although the witnesses testified inconsistently about what followed, it can at least be said that violence ensued, and that Beranek was responsible.
Coleman testified that both Beranek and his sister beat her savagely; that he hit her on the head with a telephone, pushed her face against a glass table, breaking it, choked her, threw her on the floor and began to kick and punch her, and stepped on her arm and wrist, breaking it in three places. Hospital records verified Coleman's broken wrist, a bruise on her neck and various scrapes.
The Fines woke up during this ruckus and went to investigate. In the midst of the beating, screaming, and confusion, Coleman's niece, with the baby, made her way down to the Fines' apartment. Beranek followed and met Fine on the downstairs porch. Fine had armed himself with a baseball bat prior to leaving his apartment, but testified when he recognized Beranek he put it down. Beranek then threw the baseball bat into the street and at some point punched Fine in the mouth, bloodying his lip, breaking his dentures, and loosening a tooth. During that time, Mrs. Fine came out on the porch, where she either attempted to help her husband or tried to keep Beranek and his sister from going inside the Fine apartment where, at some point, Coleman had joined her baby and niece seeking safety. Whatever her intentions, Mrs. Fine was pushed and fell through a glass storm door.
Mrs. Fine testified that she underwent surgery for a herniated disc on September 27, 1998, but had returned to her job before the altercation with Beranek.
Q: What was your prognosis and progress as far as the initial back surgery, who [sic] were you doing at that point?
A: I was doing pretty good. I went back to work cleaning offices. * * * Q: Since you were pushed back through the door what happened as far as are [sic] your back is concerned?
A: I've been having all kinds of problems. I've been going to doctors, been going through therapy, they're talking about surgery, again, so I'm back to where I started from.
* * *
Q: Have you had any long term — describe the long term effects of your injuries?
A: Long term?
Q: Yeah.
A: Well, I have a lot of problems. I can't hardly walk sometimes. If I lay down on my bed I can't get out of the bed, I have to have help. I have a lot of numbness in my leg now and the disk that is dislocated, again, is pinching against a nerve in my back.
Q: And this is all as a result of the injuries —
A: Yes.
Q: — this was not from the surgery from prior to the incident?
A: No.
Beranek's lawyer never cross-examined Mrs. Fine on her medical history, claimed injuries, subsequent treatment or prognosis nor did he request or obtain either her medical records or an independent medical examination. Neither the State nor Beranek offered any medical evidence on Mrs. Fine's then current condition. Only the Lakewood Hospital Emergency Room Records from November 7, 1998, were introduced to support the injuries and medical treatment of Donna Fine, Larry Fine, and Betty Coleman.
Beranek's lawyer cross-examined each of the State's five witnesses; the three victims, Coleman's niece and Cleveland Police Sergeant Patricia Kinsinger, but offered no witnesses in defense. Although his opening statement and closing argument were directed at convincing the jury that Beranek's actions toward Larry and Donna Fine were in self-defense or in response to provocation, his lawyer did not request jury instructions on self-defense, aggravated assault, R.C. 2903.12, or simple assault, R.C. 2903.13.
Beranek's lawyer did not question or argue to the jury the issue of whether Mr. Fine's injuries constituted serious physical harm, but did question in his opening statement and closing argument whether Mrs. Fine's back condition was caused by her fall or related instead to her recent back surgery. Although he never challenged Mrs. Fine's testimony about the injuries she claimed were caused by Beranek and did not attempt to discover or present evidence rebutting that testimony, he argued to the jury that the State failed to present sufficient evidence that Mrs. Fine suffered serious physical harm.
The jury found Beranek guilty of three counts of felonious assault and one count of domestic violence. Beranek waived pre-sentence investigation and the judge proceeded immediately to sentencing:
THE JUDGE: All right. What would you like to say, Mr. Frye?
MR. FRYE: I think the Court has heard what transpired in this incident. Mr. Beranek is on parole. He has been violated and will do approximately a year on that, your Honor, based on this incident.
I would ask the Court to take that into consideration in imposing sentence.
* * *
THE JUDGE: * * * Now for your sentencing. I note that you have a prior offense for which you are on parole. Clearly, Mr. Beranek, you have a criminal history of at least that. I don't know of anything else.
These are offenses of violence. You did serious physical harm to the victims in this case in their homes, a place where they should be safe.
Count one, three years.
Count two, three years.
Count three, three years.
Count six, six months.
They are all to run consecutive.
All right. Thank you.
In her March 9, 1999 journal entry, however, the judge altered the sentence, ordering the six-month sentence to run concurrently instead of consecutively. Neither the transcript of sentencing nor the journal entry suggest that she considered the relevant factors and made the findings required before imposing consecutive sentences, nor did she record her reasons for imposing the sentences, which in the aggregate exceeded the maximum prison term Beranek could have received for a single felonious assault conviction.
The journal entry also contains a rote recitation of statements, none of which occurred, of course, that took place during the sentencing: The court finds, based upon a consideration of factors that prison is consistent with the purposes of R.C. 2929.11. * * * The sentence includes any extensions provided by law. * * * Defendant advised of appeal rights. * * *
Beranek was appointed a different lawyer for his appeal, who raises four assignments of error. The first assignment states:
I. THE TRIAL COURT FAILED TO CONDUCT A PROPER INQUIRY AS TO THE APPELLANT'S MOTION TO DISMISS HIS ATTORNEY.
Beranek alleges that the judge was required to investigate his reasons for wanting to discharge his trial counsel, even on the morning of trial, under the mandates of State v. Deal (1969), 17 Ohio St.2d 17, 244 N.E.2d 742, which states in its syllabus:
Where, during the course of his trial for a serious crime, an indigent accused questions the effectiveness and adequacy of assigned counsel, by stating that such counsel failed to file seasonably a notice of alibi or to subpoena witnesses in support thereof even though requested to do so by accused, it is the duty of the trial judge to inquire into the complaint and make such inquiry a part of the record. The trial judge may then require the trial to proceed with assigned counsel participating if the complaint is not substantiated or is unreasonable.
It is clear the judge found Beranek's motion untimely because it was not a written motion stating his reasons for discharging his trial attorney and raised as an issue only on the day of trial. No inquiry was made into the nature of Beranek's complaint or concerns, nor did he or his lawyer offer to state those reasons. The facts of Deal, supra, discredit the notion that timeliness was a factor here because in that case the defendant did not seek to discharge his attorney until after the State had presented and rested its case. Deal, 17 Ohio St.2d at 17, 244 N.E.2d at 742. Timeliness was rejected as a reason for the judge to refuse inquiry in State v. Prater (1990), 71 Ohio App.3d 78, 83, 593 N.E.2d 44, 47. In Prater, the Tenth District Court of Appeals found the judge's timeliness concerns unpersuasive when the defendant had raised the issue at exactly the same times raised here. Id. at 79, 81, 593 N.E.2d at 44-45.
One might attempt to distinguish Deal on the basis of the nature of the complaint raised, because the defendant in Deal made specific allegations of his lawyer's inadequacy. In this case, neither Beranek nor his attorney stated the nature of Beranek's complaint on the record. However, this case is similar to Prater, where the judge refused to hear the defendant's reasons in the first instance because he believed the motion untimely. Prater, 71 Ohio App.3d at 79-82, 593 N.E.2d at 44-46. We will not penalize Beranek for failing to press the issue before the judge when she made it clear that she would not consider Beranek's complaints and did not inquire into their nature.
We find it significant that the Ohio Supreme Court recently has cited Prater with approval on this issue. State v. Keith (1997), 79 Ohio St.3d 514, 524, 684 N.E.2d 47, 59 (finding that Prater correctly required inquiry where defendant specifically informed the court that he did not want assigned counsel to represent him). In addition to approving the reasoning and result in Prater, Keith has the further effect of reinvigorating the thirty-year-old precedent of Deal.
Having determined that Deal remains the law of this State, and that it is applicable to the facts of this case, we must then determine Beranek's remedy. In both Deal and Prater, the case was remanded to the judge for the limited purpose of inquiring into the defendant's allegations, with instructions to re-enter the judgment of conviction if the allegations were unfounded. Deal, 17 Ohio St.2d at 20, 244 N.E.2d at 743-44; Prater, 71 Ohio App.3d at 85-86, 593 N.E.2d at 48.
We note that in this case there are two elements to Beranek's claims; first, he must make allegations specific enough to justify further investigation; if he does so, the judge is then required to investigate those claims, although that investigation may be brief and minimal. Prater, 71 Ohio App.3d at 83, 593 N.E.2d at 47. The judge on remand must first allow Beranek to state his reasons for wanting to discharge his attorney but need not inquire further if his reasons are vague or general. Deal, 17 Ohio St.2d at 19, 244 N.E.2d at 742; State v. King (1995), 104 Ohio App.3d 434, 437, 662 N.E.2d 389, 391.
The purpose of the inquiry and investigation are to allow a defendant the opportunity to place his allegations on the record, and to show sufficient investigation into their merit to allow appellate review. Thus the complaining defendant is allowed the opportunity to place allegations and evidence of at least some issues of ineffective assistance of counsel on the record for review on direct appeal, rather than having those issues postponed for postconviction relief petitions, because they rely on evidence outside the record.
On remand, the judge should attempt to determine those issues for which Beranek sought to discharge his attorney initially; although in the aftermath of trial Beranek might assert numerous errors of his trial counsel, it is unlikely that he would foresee each error prior to trial. It need not become a hearing on postconviction relief, but at this point something more than a brief and minimal inquiry and investigation might be necessary to determine which of Beranek's claims are attributable to his attempt to discharge his attorney prior to trial and which became apparent only after the trial went forward. If the allegations are unfounded, judgment of conviction is to be re-entered.
Beranek's second and third assignments of error can be addressed together. These assignments state:
II. THE TRIAL COURT FAILED TO PROVIDE THE JURY WITH A PROPER INSTRUCTION REGARDING FELONIOUS ASSAULT.
III. THE TRIAL COURT FAILED TO INSTRUCT THE JURY OF THE LESSER OFFENSE OF AGGRAVATED ASSAULT.
Although his trial lawyer did not object to the jury instructions now being challenged, Beranek cites State v. Roberts (1996), 109 Ohio App.3d 634, 672 N.E.2d 1053, in support of his argument, apparently claiming the judge failed to include a deadly weapon instruction and/or an absence of provocation instruction in describing the elements of felonious assault. Roberts is inapplicable here, because an instruction concerning a deadly weapon only arises if the charge is based on R.C. 2903.11(A)(2). The charges in this case were based on R.C. 2903.11(A)(1), which requires only that a defendant cause serious physical harm, regardless of whether a weapon is used. Similarly, an absence of provocation instruction is warranted only if the aggravated assault instruction itself is warranted.
We note that quotations from West Publishing headnotes are not persuasive authority, and constitute no part of the opinion of this or any other Ohio court, much less the holding of such court. The headnotes are provided by the publisher as a means to aid legal research; they do not state the law.
The offense of aggravated assault includes all the elements of felonious assault, with the mitigating factor of serious provocation brought on by sudden passion or sudden fit of rage. R.C. 2903.12. Where evidence of provocation is presented, an instruction on aggravated assault is warranted. State v. Mack (1998), 82 Ohio St.3d 198, 200, 694 N.E.2d 1328, 1330-31. Here, however, there was no such evidence. Whether Fine came onto his porch with a baseball bat is not evidence that he attempted to hit or even threaten Beranek with it. Had there been evidence that Fine attempted to strike Beranek with the bat, Beranek would be required to present some evidence that the act was a provocation by Fine, rather than Fine's response to Beranek's initial aggression. The evidence showed that Beranek had been upstairs beating Coleman before he encountered Fine on the porch. Under these circumstances, Beranek cannot claim that Fine provoked him simply by holding a baseball bat. Beranek presented no evidence of provocation and an instruction on aggravated assault is not warranted. On the evidence presented, we reject the second and third assignments of error.
If Beranek claims that he could have presented credible evidence of provocation but was prevented from doing so by his lawyer, such claims can be investigated on remand.
The fourth assignment of error states:
IV. THE STATE FAILED TO PROVE THE CHARGE OF FELONIOUS ASSAULT BEYOND A REASONABLE DOUBT.
The State correctly points out that this assignment of error appears directed at the sufficiency of the evidence. This court will reverse a guilty verdict if it is based on evidence upon which no reasonable trier of fact could convict. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus.
Beranek first claims that there was no evidence concerning whether Mrs. Fine was pushed by him or his sister. This assertion is meritless because Mrs. Fine testified that both Beranek and his sister participated in pushing her and he could be convicted of the same offense as an accomplice regardless of whether he or his sister was the principal offender. The jury was instructed as to such liability, and reasonably could convict Beranek either as a principal or as an accomplice.
Beranek next claims that the evidence was insufficient to show that Mrs. Fine's resultant medical complaints were the result of being pushed through the door because of her then recent back surgery. Mrs. Fine's testimony concerning the source of her injuries was never subject to cross-examination and was sufficient to allow a jury to infer a causal relationship with her fall. No evidence was offered to counter her assertions. The fourth assignment of error is overruled.
This appeal raises numerous issues that we cannot reach because they have not been assigned as errors and because their proper resolution requires the assistance of counsel and the adversary process to narrow, clarify, and illuminate the issues for this court. In appropriate cases, however, we retain the discretion to address plain error even when not assigned or argued by counsel. State v. 1981 Dodge Ram Van (1988), 36 Ohio St.3d 168, 170, 522 N.E.2d 524, 526. Although a court contemplating a decision on an unassigned error ordinarily should inform the parties and allow argument on the issue, doing so is not required where the error is so obvious that briefing and argument are unnecessary. Id.; State v. Hylton (1991), 75 Ohio App.3d 778, 784, 600 N.E.2d 821, 825; State v. Hall (July 30, 1992), Cuyahoga App. No. 60898, unreported. We find such obvious error in Beranek's sentencing.
The judge sentenced him to three consecutive three-year sentences but failed to make several specific findings, required by R.C. 2929.14(E)(4) before so doing. The judge first must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender[.] Next, she must find that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public[.] Finally, the court must find the existence of at least one of three factors, the first being that the defendant committed the offense while awaiting trial or sentencing on another matter, or was subject to parole, probation, or other sanctions from a prior offense. R.C. 2929.14(E)(4)(a).
The record shows that Beranek satisfied the final factor; his attorney admitted at sentencing that he was on parole for another offense but the judge made no other findings before imposing consecutive sentences. As already noted, the judge's sole comments were as follows:
I note that you have a prior offense for which you are on parole. Clearly, Mr. Beranek, you have a criminal history of at least that. I don't know of anything else.
These are offenses of violence. You did serious physical harm to the victims in this case in their homes, a place where they should be safe.
There is only one mandated finding in these five sentences: that Beranek was on parole at the time of the offenses.
Although the duty to make findings is less demanding than the duty to state reasons, the court that makes findings must note that it engaged in the analysis set forth in the applicable statute. State v. Edmonson (1999), 86 Ohio St.3d 324, 326, 715 N.E.2d 131, 134. The judge's brief comments show no analysis of the factors set forth in R.C. 2929.14(E)(4). Nothing about offenses of violence committed in victims' homes leads to the conclusion that an offender is more likely to commit future crime. Beranek's potential to commit future crimes might have been supported by the fact that he was already on parole, but it would be impossible to reach the conclusion on that information alone. Nor do such statements show that the judge analyzed the issues and concluded that consecutive sentences were necessary to punish Beranek. She also had to find that the sentences were not disproportionate both to the seriousness of Beranek's conduct and to the danger he posed to the public. Her statements do not indicate that she considered these issues, nor do they give any clue as to how her comments might have related to those issues. As in Edmonson, the record here gives no indication that the judge considered, and then rejected, imposing a less severe sentence on Beranek based on the reasons set forth in R.C. 2929.14(E)(4). Id. at 328, 715 N.E.2d at 135.
In addition to the findings required before imposing consecutive sentences, a judge is also required to state the reasons for imposing the consecutive sentences. R.C. 2929.19(B)(2)(c). Moreover, because Beranek's sentence is for nine years for three second-degree felonies, where the maximum term for each would be eight years, reasons for imposing the maximum — or rather more than the maximum — prison term must be stated. R.C. 2929.19(B)(2)(e).
The judge's comments here also fail to satisfy this requirement. While findings essentially set forth a judge's conclusions based on his or her consideration of the facts of a case and relevant statutory factors, a statement of reasons requires a judge to set forth the facts and circumstances considered and the importance attached to them, and the processes by which those facts and circumstances led to the conclusions reached.
The sentence also failed to advise Beranek that he was subject to a period of post-release control following his release from prison, R.C. 2929.19(B)(3)(c); and that violating the terms of post-release control could result in further sanctions, including return to prison. R.C. 2929.19(B)(3)(e). Woods v. Telb (2000), 89 Ohio St.3d 504, 733 N.E.2d 1103; State v. Melton (May 4, 2000), Cuyahoga App. No. 75792, unreported.
Finally, we note that R.C. 2953.08(G)(1)(a) allows this court to review and alter a sentence that is not supported by the record. Beranek's counsel did not raise this issue on appeal, and because the existence of error is not obvious, this issue should not be decided without a proper record and argument of the parties. This sentence, however, does not seem supported by the record before this Court.
Even though Beranek's trial attorney did not dispute the seriousness of the injuries to Fines, we question whether Beranek's injuries to the Fines were the equal of those sustained by Coleman. Although the issue was never raised before the jury, the trial court, or on appeal, whether Mr. Fine's punch in the mouth, fat lip, loose tooth and cracked dentures legally constituted serious physical harm is questionable at best. The cracked dentures do not constitute physical harm, only property damage, and this court is unaware of any decision finding that a fat lip and a single loose tooth, without more, are sufficient to constitute serious physical harm under R.C. 2903.08. Similarly, even though the evidence was sufficient to find Beranek guilty of felonious assault with respect to Mrs. Fine's injuries, the evidence of the seriousness of her injuries and their causal relationship was not strong.
Expert testimony would be required.
In assessing the seriousness of an offender's conduct, a judge should take into account grounds that mitigate an offender's conduct, although the grounds are not enough to constitute a defense. R.C. 2929.12(C)(4). Although R.C. 2929.12 does not directly relate to imposition of consecutive sentences, its guidelines can and should be followed, when applicable, in analyzing the findings necessary under 2929.14(E)(4). Without minimizing the injuries sustained by the Fines, the judge had a duty to attempt to impose a sentence for those injuries that would be consistent with sentences imposed for similar crimes.
We remand this case for proceedings consistent with this opinion. The judge should first inquire into Beranek's reasons for discharging his attorney and, if it is determined that Beranek's conviction should be upheld, judgment of conviction may be reentered and sentences in compliance with R.C. 2929.11 through 2929.19 imposed.
It is ordered that the appellant recover from appellee his costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court 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.
DIANE KARPINSKI, P.J., CONCURRING SEPARATELY;
JAMES M. PORTER, J., DISSENTING AND CONCURRING IN PART (SEE DISSENTING AND CONCURRING OPINION ATTACHED).
The dissent claims the majority overlooked State v. McNeill, ante at 4, which the dissent summarizes as holding that considering the timing of the motion [after the jury was impaneled] it was reasonable for the trial court to conclude that the defendant's purpose was solely delay. This summary overlooks significant differences between the two cases. First, the timing is different. Beranek made his request before the trial was to begin, not after the jury was impaneled as in McNeill. Second, the facts McNeill cited in support of his request were in dispute. McNeill had claimed his attorneys communicated with him only once following their appointment, and refused to obtain information for him or to place two requested witnesses on the witness list. McNeil at 452. This reason was flatly contradicted by defense counsel, who stated they met with McNeill between one and two dozen times, spoke with him on the phone, and gave him copies of all discovery. Also, counsel in fact listed one of the two witnesses McNeill wanted, and stated that McNeill withdrew his request for the other. Id. at 452. The Supreme Court expressly noted that McNeill's factual claims were disputed. Id. Understanding that context is crucial to understanding why the timing of his motion made it reasonable to conclude his purpose was delay. At most, McNeill stands for the principle that the timing of the request is a legitimate factor to consider. The case surely cannot be used to support the principle that the court has no duty to inquire what the defendant's reasons are. In McNeill reasons were given. In the case at bar no reasons were given, and the judge did not inquire what they were.
I must note, moreover, the problems of determining what opportunity the defendant had to give his reasons. When the judge asked whether the defense had any pretrial motions, defendant's attorney stated that his client would like to have him removed as his counsel. The judge responded as follows:
All right. We are here on the day of trial. I have no written motion. I see that you are appointed. Your motion is untimely and it will not be granted.
All right. Are we ready for the jury, gentlemen? The transcript does not reflect whether there were any pauses. If these lines were spoken in a continuous flow, the judge did not give defendant any opportunity to give his reasons. In fact, since the judge appears to be addressing counsel, defendant does not appear to have been given any opportunity to speak.
Later in the day, the judge brought up the matter again. At that point, however, the jury had already been chosen. Moreover, again the judge did not inquire about defendant's reasons. In any event, the court had already announced its decision in the morning. The dissent states it was up to defendant to demonstrate a justifiable cause. The record shows, however, that the court neither asked defendant for his reasons nor gave defendant a clear opportunity to volunteer them.
In State v. Prater (1990), 71 Ohio App.3d 78, the defendant similarly requested new counsel on the morning of trial, just prior to voir dire. Unpersuaded by the lateness of the request, the Tenth District Court of Appeals found the trial court breached its duty to inquire into defendant's objections. The court added that the investigation may be brief and minimal; however, the inquiry must be made and put on the record * * *. Id. at 83.
The lateness of the request does not eliminate altogether the need to make some inquiry. Because that minimal level was not met, I concur with the majority.
I respectfully disagree with the majority's analysis of Assignment of Error I. I would affirm the convictions but remand for resentencing for the reasons hereinafter stated.
This case presented sufficient evidence, as the majority concedes, that the defendant beat his girlfriend savagely, finally stepping on her arm and breaking her wrist in three places. When the downstairs neighbors, Mr. and Mrs. Fine, attempted to intervene and offer sanctuary to the victims of defendant's rage and assault, they too were seriously injured by defendant's unprovoked and outrageous conduct. He sucker-punched Mr. Fine in the mouth, bloodying his lip, breaking his dentures and loosening a tooth. Mrs. Fine, who had recently recovered from herniated disc surgery, was pushed and fell through a glass door causing recurrence of her back problems. The emergency room records of Lakewood Hospital supported the serious nature of these injuries and medical treatment received following this episode. It is not surprising that the jury found defendant guilty of felonious assault on these three innocent victims and the court sentenced defendant to three-year terms for each of three offenses. Although the majority gratuitously criticizes the conduct of defense counsel's performance (Maj. Opn. 6-7), there is no reason to think on this record that the outcome of the trial would have been any different, regardless of the defense counsel assigned.
I find no fault with the trial court's conduct, much less an abuse of discretion, in declining to entertain the defendant's eleventh-hour request for a change of counsel just prior to jury selection.
An indigent defendant has a right to competent counsel, not a right to counsel of his own choosing. State v. Blankenship (1995), 102 Ohio App.3d 534, 558, citing Thurston v. Maxwell (1965), 30 Ohio St.2d 92, 93. There is no constitutional right to a meaningful attorney-client relationship. Morris v. Slappy (1983), 461 U.S. 1, 13-14. Rather, an indigent defendant is entitled to the appointment of substitute counsel only upon a showing of good cause, such as an actual conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust result. Blankenship, supra, at 558, citing State v. Pruitt (1984), 18 Ohio App.3d 50, 57.
To discharge a court-appointed attorney, the defendant 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 (1988), 37 Ohio St.3d 286, paragraph four of the syllabus. In short, the conflict must be so severe that a denial of substitution of counsel would implicate a violation of the Sixth Amendment right to counsel. Blankenship, supra, at 558. It is incumbent upon the defendant to demonstrate to the court justifiable cause for both the discharge of the appointed counsel and the request for appointment of new counsel. See State v. Edsall (1996), 113 Ohio App.3d 337, 339. The existence of hostility and tension or personal differences which do not rise to the level of interfering with the preparation or presentation of a defense are not sufficient to justify discharging court-appointed counsel. See State v. Henness (1997), 79 Ohio St.3d 53, 65-66. In the absence of such a Sixth Amendment concern, the decision of a trial court to refuse substitution of counsel will be reversed only if the court has abused its discretion. State v. Pruitt (1984), 18 Ohio App.3d 50, 57.
The majority does not cite and appears to have overlooked State v. McNeill (1998), 83 Ohio St.3d 438, in which the defendant submitted to the trial court his motion to replace appointed counsel after the jury was impaneled and immediately before opening statements were to begin. The trial court found that, given the timing, the defendant's motion was made for the purpose of delay and, despite being given several previous opportunities, defendant did not bring his alleged problem to the court's attention until immediately before opening statements. The Supreme Court held that it was within the trial court's discretion to replace defendant's appointed counsel and that considering the timing of the motion, it was reasonable for the trial court to conclude that the defendant's purpose was solely delay. Id. at 452.
Similarly, in the instant case, defendant appeared on the day of his trial and orally requested to the court that his court-appointed counsel be removed and another appointed. No reason or explanation was offered by defendant. The record reflects that his trial counsel was appointed on January 6, 1999 and had been representing defendant for nearly two months by the time of trial. That counsel had also appeared on behalf of defendant at two separate pre-trials and had filed for discovery in his case. Suddenly, on the day of trial and without reason, defendant sought to have him removed even though he had not contacted another attorney to represent him.
As stated above, it was up to defendant to demonstrate to the court a justifiable cause for both the discharge of assigned counsel and the request for appointment of new counsel before the court's duty to investigate is required. However, in order to necessitate such an inquiry, the defendant must announce grounds for appointment of new counsel which are sufficiently specific to trigger the duty of further investigation. State v. Demetrius Smith (Sept. 14, 2000), Cuyahoga App. No. 76998, unreported at 6. The burden is on the defendant to state the reasons. In the instant case, defendant gave no justification for the request and had never previously mentioned any problem with counsel during the two months of his representation.
In my judgment, as in McNeill and Smith, the trial court here did not abuse its discretion in denying defendant's request. It was not unreasonable, arbitrary or unconscionable for the trial court to conclude that defendant's request was merely for the purpose of delaying his trial in the circumstances presented. I would overrule Assignment of Error I.
I concur with the majority's disposition of Assignment of Error II, III and IV without endorsing its speculative and advisory comments on the evidence. (Maj. Opn. at 19). I particulary reject the suggestion that Mr. Fine's cracked dentures resulting from a punch in the mouth are property damage not serious physical injury. Nor do I perceive that expert testimony would be required to establish serious physical injury to Mrs. Fine in such a case. When injuries to a victim are serious enough to cause him to seek medical treatment, as here, a jury may reasonably infer that the force exerted on the victim caused serious physical injury under R.C. 2901.01(E)(3). State v. Winston (1991), 71 Ohio App.3d 154, 159. See State v. Gary (May 9, 1996), Cuyahoga App. No. 69532, unreported at 3 and numerous cases from this Court. I concur in the remand for explanation of the consecutive sentences.