State v. Stoves
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[Cite as State v. Stoves, 2018-Ohio-2947.] Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA JOURNAL ENTRY AND OPINION No. 106522 STATE OF OHIO PLAINTIFF-APPELLEE vs. CHARLES W. STOVES DEFENDANT-APPELLANT JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-605099-A BEFORE: Jones, J., McCormack, P.J., and Celebrezze, J. RELEASED AND JOURNALIZED: July 26, 2018 ATTORNEY FOR APPELLANT Susan J. Moran 55 Public Square, Suite 1616 Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor BY: Anna M. Faraglia Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., J.: {¶1} In this appeal, defendant-appellant Charles W. Stoves (“Stoves”) challenges the trial court’s decision to deny his motion to disqualify counsel and the validity of his guilty plea that he made after the trial court denied his motion. For the reasons that follow, we affirm. Factual and Procedural History {¶2} In 2016, Stoves was charged with the following six crimes: Counts 1 and 2, aggravated murder; Count 3, kidnapping; Count 4, murder; Count 5, felonious assault; and Count 6, tampering with evidence. The charges stemmed from the death by blunt force trauma and strangulation of Lola Robinson. Stoves was declared indigent and appointed counsel (a private practice defense attorney and an assistant county public defender). He pleaded not guilty to the indictment. {¶3} The case was placed on the mental health docket, and the trial court referred Stoves to the court psychiatric clinic for a competency to stand trial evaluation.1 {¶4} On November 3, 2016, Stoves, pro se, filed a motion to disqualify counsel. {¶5} On November 16, 2016, a pretrial hearing was held to review the psychiatric report. The evaluating doctor determined that Stoves was incompetent to stand trial, but that there was a reasonable probability that he could be restored to competency within the statutorily permitted time frame. The parties stipulated to the report. The trial court therefore ordered Stoves to the North Coast Behavioral Healthcare Center to be restored to competency. {¶6} After a period of restoration, North Coast issued a report finding that Stoves had been restored to competency. The state and the defense stipulated to the findings of the report, and the trial court found Stoves competent to stand trial. 1 Stoves also had a case pending in the Cleveland Municipal Court for which he had been referred for evaluation for competency to stand trial. {¶7} At an April 2017 pretrial, Stoves indicated that he no longer sought to disqualify his counsel. The matter was scheduled to proceed to trial on Monday, September 25, 2017. In a May 2017 letter to the trial court, Stoves raised the issue of obtaining new counsel again. The trial court addressed it at a pretrial hearing, at which time Stoves stated that he did not want his attorneys removed because they told him they were trying to help him and he understood the information they were giving him. {¶8} On Thursday, September 21, 2017, Stoves filed a pro se motion to “remove, recuse, and dismiss defense counsel and reappoint new counsel.” The trial court entertained the motion on September 25, the day set for trial, and denied it. Stoves waived his right to a jury trial, and the matter proceeded to a bench trial. {¶9} Midway through trial, however, Stoves accepted the state’s plea offer.2 He pleaded guilty to an amended Count 2, murder, and Count 3, kidnapping as indicted. The remaining counts were nolled. The trial court sentenced him to life with the possibility of parole after 15 years on the murder and ten years on the kidnapping, and ordered that the counts be served consecutive. Thus, the aggregate sentence was life with the possibility of parole after 25 years. Stoves now appeals, raising the following two assignments of error for our review: I. The appellant’s Sixth Amendment right to counsel was violated by the trial court’s refusal to hear and appoint different counsel. II. The trial court erred in accepting appellant’s guilty plea and appellant’s guilty plea is void and invalid in light of the fact that the plea was not entered knowingly, voluntarily and intelligently, in violation of appellant’s right to due process and law under the Fourteenth Amendment to the United States Constitution and Article 1, Section 10 of the Ohio Constitution. Law and Analysis 2 The plea came after Stoves reviewed the police interview of himself during which he confessed to hitting the victim. Motion for New Counsel {¶10} In his first assignment of error, Stoves contends that his Sixth Amendment right to counsel was violated by the trial court’s denial of his request to obtain new counsel. According to Stoves, he “revealed several articulated reasons for the need for new representation,” which he contends he especially needed in light of his mental illness. {¶11} It is well settled that “a guilty plea waives all non-jurisdictional defects (other than errors affecting the validity of the guilty plea) in the prior proceedings.” State v. Moore, 2d Dist. Montgomery No. 22365, 2008-Ohio-4322, ¶ 12, citing State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 78. In other words, “‘a guilty plea waives all appealable errors except for a challenge as to whether the defendant made a knowing, intelligent and voluntary acceptance of the plea.’” State v. Robinson, 4th Dist. Lawrence No. 13CA18, 2015-Ohio-2635, ¶ 45, quoting State v. Patterson, 5th Dist. Muskingum No. CT2012-0029, 2012-Ohio-5600, ¶ 30. {¶12} Stoves does not allege a jurisdictional defect, and although he challenges his plea in the second assignment of error, that challenge is based on his competency at the time of the plea, rather than on anything having to do with his attorneys. Thus, Stoves has waived the denial of his motion for new counsel by pleading guilty. {¶13} Even if Stoves had not waived the issue, we find no abuse of the court’s discretion in denying his request.3 When a defendant moves to disqualify his or her court-appointed counsel, it is the trial court’s duty to inquire into the complaint and make it a part of the record. State v. Corbin, 8th Dist. Cuyahoga No. 96484, 2011-Ohio-6628, ¶ 19, citing State v. Lozada, 3 We review a trial court’s decision whether to remove court-appointed counsel for an abuse of discretion. State v. Patterson, 8th Dist. Cuyahoga No. 100086, 2014-Ohio-1621, ¶ 19. An abuse of discretion implies that the court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). 8th Dist. Cuyahoga No. 94902, 2011-Ohio-823. The inquiry, however, need only be brief and minimal. State v. King, 104 Ohio App.3d 434, 437, 662 N.E.2d 389 (4th Dist.1995). {¶14} The defendant bears the burden of demonstrating proper grounds for the appointment of new counsel. State v. Patterson, 8th Dist. Cuyahoga No. 100086, 2014-Ohio-1621, ¶ 18. “If a defendant alleges facts which, if true, would require relief, the trial court must inquire into the defendant’s complaint and make the inquiry part of the record.” citing State v. Deal, 17 Ohio St.2d 17, 20, 244 N.E.2d 742 (1969). disqualification must be specific, not “vague or general.” Id., The grounds for State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 68. {¶15} Moreover, in order for the court to discharge a court-appointed attorney, the defendant must show “‘a breakdown in the attorney-client relationship of such magnitude as to jeopardize a defendant’s right to effective assistance of counsel.’” State v. Coleman, 37 Ohio St.3d 286, 292, 525 N.E.2d 792 (1988), quoting People v. Robles, 2 Cal.3d 205, 215, 85 Cal.Rptr. 166, 466 P.2d 710 (1970). Defendant’s right to counsel “‘does not extend to counsel of the defendant’s choice.’” Patterson at ¶ 20, quoting Thurston v. Maxwell, 3 Ohio St.2d 92, 93, 209 N.E.2d 204 (1965). {¶16} The defendant’s request for new counsel must also be timely. And where the defendant makes a timely request for new counsel and has demonstrated good cause, the trial court’s “failure to honor [the] timely request * * * would constitute a denial of effective assistance of counsel.” State v. Armstrong, 8th Dist. Cuyahoga No. 82497, 2003-Ohio-6891, ¶ 22. {¶17} Stoves made three requests for new counsel; he withdrew the first two, but two business days prior to the trial date, he made his third request. The trial court held a hearing on Stoves’s motion and inquired of him about his request for new counsel. Stoves told the court that his bill of particulars and discovery were incomplete, and he did not have any of the witnesses’ statements. According to Stoves, these lawyers did merely nothing to prepare to defend me nor investigate my case and defenses. They never hardly spoke to me, really, never — rarely near — rarely never, never visited me to inform me of any nor obtain information from me. They ignored this case and me for over 18 months allowing for me to rot in jail as my speedy trial rights were freely violated without my consent. {¶18} Stoves likened going to trial with his counsel as “crazy and suicidal” and that it would “likely cause [him] to be wrongfully convicted.” He demanded “new lawyers immediately.” {¶19} Stoves’s two appointed attorneys (a private practice defense attorney and an assistant county public defender) told the court that they had fully shared discovery with Stoves and were surprised by his request: [Court:] Counsel, you received all discovery; is that correct? [Assistant Public Defender:] [Court:] To my satisfaction, yes, your honor. Did you share that discovery with the defendant? [Private Practice Attorney:] Your honor, actually your court provided us three opportunities to meet with Mr. Stoves up in the cell and I think at each of those opportunities we were with him no less than two hours. That does not include the hours spent with him in the jail. We’ve gone over four videotapes with him and we’ve literally gone over them almost frame by frame. We discussed all potential witnesses. We’ve discussed the strength of the state’s case. Mr. Stoves has written to the court on at least two prior occasions and at each time we’ve come in and you’ve asked him, have your lawyers shared discovery with you? And he says yes. I think the court went into some depth * * * the last time, is there anything else that you need? Is there anything else you need me to make sure they get? And he indicates that he had all discovery, he had gone through it all. And to be honest with you, myself and my co-counsel, we went to see him on Friday and were surprised at the motion he filed the previous Thursday. Tr. 23-24. {¶20} The private practice attorney informed the court that it was only at the end of their visit with Stoves that he told them he had filed a motion for new counsel. She further told the court that she and her co-counsel alternated seeing Stoves every other week so that he would see one of them every week. She maintained that they were prepared to go to trial and had “been for some time now.” {¶21} At the conclusion of the hearing, the trial court noted that, although Stoves initially was deemed incompetent to stand trial, he had been restored. The court found that counsel had been “diligent” and would represent him well. {¶22} On this record, the trial court did not abuse its discretion in denying Stoves’s request for new counsel. The court conducted a meaningful inquiry into Stoves’s eleventh-hour third request. Counsels’ statements to the court demonstrated that they had been working on the case, sharing information with Stoves, and were prepared for trial. There was no complete break-down in communication between counsel and Stoves, as evidenced by the fact that in their last meeting with him, they spoke at length and it was only at the end of the meeting that Stoves mentioned he had filed another motion for new counsel. {¶23} In light of the above, the first assignment of error is overruled. The Plea {¶24} For his second assignment of error, Stoves contends that his plea was not knowingly, voluntarily, and intelligently made. {¶25} Crim.R. 11(C) governs the process by which a trial court must inform a defendant of certain constitutional and nonconstitutional rights before accepting a felony plea of guilty or no contest. The underlying purpose of Crim.R. 11(C) is to convey certain information to a defendant so that he or she can make a voluntary and intelligent decision regarding whether to plead guilty or no contest. State v. Schmick, 8th Dist. Cuyahoga No. 95210, 2011-Ohio-2263, ¶ 5. Whether the trial court accepted a plea in compliance with Crim.R. 11(C) is subject to de novo review. State v. Lunder, 8th Dist. Cuyahoga No. 101223, 2014-Ohio-5341, ¶ 22. {¶26} “Before accepting a guilty or no-contest plea, the court must make the determinations and give the warnings required by Crim.R. 11(C)(2)(a) and (b) and notify the defendant of the constitutional rights listed in Crim.R. 11(C)(2)(c).” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 13. A trial court’s compliance with Crim.R. 11(C) is reviewed under two different standards, one applied to the “nonconstitutional” portions of the rule, subsections (a) and (b), and another applied to the “constitutional” portion, subsection (c). Id. {¶27} The standard applied to the nonconstitutional portions of Rule 11 is substantial compliance. Id. at ¶ 14, citing State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d 1163 (1997). Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. * * * Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. * * * The test is whether the plea would have otherwise been made. (Citations omitted.) State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). {¶28} For the constitutional rights outlined in subsection (c), “strict, or literal, compliance” with the rule is required. Veney at ¶ 18 and at syllabus (“[w]hen a trial court fails to strictly comply with this duty, the defendant’s plea is invalid.”). The failure to comply literally with the provisions of subsection (c) does not automatically invalidate a guilty plea, however. State v. Ballard, 66 Ohio St.2d 473, 479, 423 N.E.2d 115 (1981). Failure to use the exact language contained in Crim. R. 11(C), in informing a criminal defendant of his constitutional right to a trial and the constitutional rights related to such trial, including the right to trial by jury, is not grounds for vacating a plea as long as the record shows that the trial court explained these rights in a manner reasonably intelligible to that defendant. Id. at syllabus. {¶29} The Ohio Supreme Court has reaffirmed that a trial court “can still convey the requisite information on constitutional rights to the defendant even when the court does not provide a word-for-word recitation of the criminal rule, so long as the trial court actually explains the rights to the defendant.” Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at ¶ 27, . {¶30} Upon review of the transcript from the change of plea hearing, the trial court engaged in a plea colloquy to ensure that Stoves was making his plea knowingly, voluntarily, and intelligently. In regard to his constitutional rights, the trial court strictly complied with advising him of the rights that he would be waiving. Further, the trial court also substantially complied in advising Stoves of the non-constitutional rights he would be waiving. {¶31} Stoves, contends, however, that his plea was not knowingly, intelligently, and voluntarily made because his “mental health was so obviously in question.” Our review of the hearing does not indicate that. Although Stoves’s mental health was initially in question in this case, he was restored to competency, and the parties stipulated as such. The trial court questioned Stoves as to whether he was on any medication or other substance that would affect his ability to understand what was going on; Stoves indicated he was not. The trial court questioned him as to whether in fact he understood what was going on; Stoves indicated that he did. He never asked the trial court any questions nor gave any other indication that he did not understand what was happening. {¶32} On this record, we find no merit to Stoves’s second assignment of error and therefore overrule it. {¶33} Judgment affirmed. It is ordered that appellee recover of 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. LARRY A. JONES, SR., JUDGE TIM McCORMACK, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR
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