[Cite as State v. Breneman, 2012-Ohio-2534.]
IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2010 CA 18
v. : T.C. NO. 10CR22
JAMES DOUGLAS BRENEMAN : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 8th day of June , 2012.
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NICK A. SELVAGGIO, Atty. Reg. No. 0055607, Prosecuting Attorney, 200 North Main
Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
MICHAEL R. PENTECOST, Atty. Reg. No. 0036803, Public Defender’s Office, 117 S.
Main Street, Suite 400, Dayton, Ohio 45422
Attorney for Defendant-Appellant
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DONOVAN, J.
{¶ 1} Defendant-appellant James D. Breneman appeals his conviction and
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sentence for one count of possession of crack cocaine (more than five grams but less than ten
grams), in violation of R.C. 2925.11(A)(C)(4)(c), a felony of the third degree. Breneman
filed a timely notice of appeal with this Court on June 28, 2010.
{¶ 2} The incident which forms the basis for the instant appeal occurred in the late
afternoon on December 26, 2009, when Breneman called 911 and reported that he had been
robbed at gunpoint by a man named Bryan Adams on Main Street in Urbana, Ohio. When
the 911 operator called him back after the line was disconnected, Breneman informed the
operator that the situation had changed and he was no longer in danger.
{¶ 3} Thereafter, Officer Robbie Evans and Sergeant Edward Burkhammer of the
Urbana Police Department responded to the scene of the alleged robbery. Once there, the
officers observed Adams walking down the middle of a side street just off of South Main
Street. The officers also observed Breneman exit an alleyway and join Adams in walking
down the middle of the street.
{¶ 4} Sgt. Burkhammer drew his weapon and ordered the two men to the ground
so that he could perform a search in order to determine whether either man was armed.
While searching Breneman, Sgt. Burkhammer discovered a baggie containing over seven
grams of crack cocaine and approximately $771.00 in cash. Breneman was also found to
have a cell phone and an address book in his possession. During the subsequent search of
the alley from which Breneman had emerged immediately before he joined Adams, the
police recovered a glass crack pipe and a digital scale.
{¶ 5} On February 4, 2010, Breneman was indicted for one count of possession of
crack cocaine, trafficking in crack cocaine, and possession of criminal tools. The trial court
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determined that Breneman was indigent and appointed counsel to represent him. Appointed
counsel, Brandon Cogswell, filed a motion to suppress on March 30, 2010. On April 14,
2010, the date of the suppression hearing, Attorney William Settina appeared before the trial
court and sought to enter an appearance on behalf of Breneman who stated that he was
dissatisfied with the representation of Attorney Cogswell. Breneman also stated that he
privately retained Attorney Settina as soon as he was able to gather the necessary money.
Attorney Settina orally moved the trial court for a sixty-day continuance of the suppression
hearing and the trial date so that he could have adequate time to prepare Breneman’s
defense.
{¶ 6} The trial court denied Attorney Settina’s motion for a continuance and
refused to allow him to appear on behalf of Breneman. As a basis for its decision, the trial
court cited Attorney Settina’s inability to move forward with the suppression hearing, as
well as the trial set for April 29, 2010. The trial court ordered Attorney Cogswell to move
forward with Breneman’s defense at the suppression hearing and the subsequent trial. We
note that immediately after denying Attorney Settina’s request for a continuance to prepare
his case, the trial court granted Attorney Cogswell’s request for a continuance of the
suppression hearing until April 21, 2010. The trial court overruled Breneman’s motion to
suppress in a judgment entry filed on April 28, 2010.
{¶ 7} Two days before the trial on April 27, 2010, Breneman filed a pro se motion
to terminate Attorney Cogswell as his defense counsel. The trial court overruled
Breneman’s motion prior to jury selection on the date of the trial. After a two-day jury trial,
Breneman was found guilty of possession of crack cocaine, but acquitted of the remaining
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counts. At the sentencing hearing held on June 10, 2010, the trial court sentenced
Breneman to two years in prison. It is from this judgment that Breneman now appeals.
{¶ 8} Breneman’s first assignment of error is as follows:
{¶ 9} “THE TRIAL COURT DENIED APPELLANT HIS SIXTH AMENDMENT
RIGHT TO COUNSEL BY REFUSING TO ALLOW APPELLANT’S RETAINED
COUNSEL TO ENTER AN APPEARANCE AND FORCING APPELLANT TO GO TO
TRIAL WITH COUNSEL WHO’S SERVICES HE HAD REPEATEDLY TRIED TO
TERMINATE.”
{¶ 10} In his first assignment, Breneman contends that the trial court abused its
discretion when it denied his newly retained counsel’s request to enter an appearance and
for a continuance so that he could prepare a defense to the charges. Specifically, Breneman
argues that because his request to substitute an attorney of his own choosing for appointed
counsel was made prior to trial and because no continuances had previously been requested
by the defense, the trial court should have permitted retained counsel to replace appointed
counsel, as well as provided new counsel with the opportunity to prepare an adequate
defense on Breneman’s behalf.
{¶ 11} The Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right *** to have the Assistance of Counsel for his defense.” U.S.
Constitution Amend. VI. “[W]hile the right to select and be represented by one’s preferred
attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is
to guarantee an effective advocate for each criminal defendant rather than to insure that a
defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v. United
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States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140, 148 (1988).
Accordingly, while the right to counsel of one’s choice is embedded in our jurisprudence, it
is not without exceptions. Id. A defendant, therefore, has only a presumptive right to
employ his own chosen counsel. State v. Keenan, 81 Ohio St.3d 133, 137, 689 N.E.2d 929,
937 (1998).
{¶ 12} Reviewing the “deprivation of a criminal defendant’s choice of counsel,” the
U.S. Supreme Court stated as follows:
We have recognized a trial court’s wide latitude in balancing
the right to counsel of choice against the needs of fairness, and
against the demands of its calendar. The court has, moreover,
an “independent interest in ensuring that criminal trials are
conducted within the ethical standards of the profession and
that legal proceedings appear fair to all who observe them.”
{¶ 13} United States v. Gonzalez-Lopez, 548 U.S. 140, 142, 126 S.Ct. 2557, 165
L.Ed.2d 409 (2006). Additionally, “a court must beware that a demand for counsel may be
utilized as a way to delay proceedings or trifle with the court.” State v. Harmon, 4th Dist.
Pickaway No. 04CA22, 2005-Ohio-1974, at ¶ 32, quoting U.S. v. Kryzyske, 836 F.2d 1013,
1017 (6th Cir.1988).
{¶ 14} Factors to consider in deciding whether a trial court erred in denying a
defendant’s motion to substitute counsel include “the timeliness of the motion and whether
there was a conflict between the attorney and the client that was so great that it resulted in a
total lack of communication preventing an adequate defense.” State v. Jones, 91 Ohio St.3d
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335, 342, 2001-Ohio-57, 744 N.E.2d 1163, quoting U.S. v. Jennings, 83 F.3d 145, 148 (6th
Cir.1996). “In addition, courts should ‘balanc[e] *** the accused’s right to counsel of his
choice and the public’s interest in the prompt and efficient administration of justice.’” Id. at
342-343. The decision of whether to grant a defendant’s motion for substitution of counsel
is confided to the sound discretion of the trial court. Wheat, 486 U.S. at 164, 108 S.Ct. at
1700, 100 L.Ed.2d at 152.
{¶ 15} Similarly, Breneman acknowledges that the grant or denial of a continuance
is a matter that is entrusted to the discretion of the trial court. State v. Goode, 2d Dist.
Montgomery No. 19273, 2003-Ohio-4323, citing State v. Unger, 67 Ohio St.2d 65, 423
N.E.2d 1078 (1981). In evaluating a motion for a continuance, a trial court should consider
the following: 1) the length of the delay requested; 2) whether other continuances have been
requested or received; 3) the inconvenience to the litigants, witnesses, opposing counsel, and
the court; 4) whether the requested delay is for legitimate reasons or whether it is dilatory,
purposeful, or contrived; 5) whether defendant contributed to the circumstances which give
rise to the request for a continuance; and 6) other relevant factors, depending on the unique
facts of each case. Unger, supra, at 67-68.
{¶ 16} As the Supreme Court of Ohio has determined:
“Abuse of discretion” has been defined as an attitude that is
unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is
to be expected that most instances of abuse of discretion will result in
decisions that are simply unreasonable, rather than decisions that are
unconscionable or arbitrary.
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A decision is unreasonable if there is no sound reasoning process that
would support that decision. It is not enough that the reviewing court, were
it deciding the issue de novo, would not have found that reasoning process to
be persuasive, perhaps in view of countervailing reasoning processes that
would support a contrary result. AAAA Enterprises, Inc. v. River Place
Community Redevelopment, 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).
{¶ 17} In light of the specific circumstances involved in the instant matter, we find
that the trial court abused its discretion when it refused to grant Breneman’s motion for
substitution of counsel and ordered him to proceed with appointed counsel with whom he
had expressed a great deal of dissatisfaction. Initially, we note that Breneman’s motion for
substitution of counsel was made in a timely fashion, not on the day of trial. We have
previously found a suggestion of bad faith where motions to substitute counsel are made on
the day of trial, particularly when the trial date has been set for some time. State v. McCoy,
188 Ohio App. 3d 152, 2010-Ohio-2639, 934 N.E.2d 971, ¶ 48 (2d Dist.). The indictment
against Breneman was originally filed on February 4, 2010. Attorney Settina appeared
before the trial court and attempted to enter an appearance on behalf of Breneman on April
14, 2010, prior to the hearing regarding Breneman’s motion to suppress. Breneman’s trial
was scheduled to occur on April 29, 2010. Moreover, the record establishes that Attorney
Settina contacted the trial court prior to April 14, 2010, and advised the court of his intention
to enter a notice of appearance on behalf of Breneman.
{¶ 18} Breneman stated that he was unable to retain Attorney Settina at an earlier
date because he simply did not have the money to hire a private attorney when he was
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indicted. Attorney Settina indicated to the trial court that he had previously represented
Breneman, and noted that there was an apparent breakdown in Breneman’s relationship with
his appointed counsel, Attorney Cogswell. For his part, Breneman expressed confidence in
Attorney Settina’s ability to represent him. Attorney Cogswell did not oppose the motion
for substitution and orally moved to withdraw as defense counsel. We find that Breneman’s
motion to substitute counsel was not untimely, nor was it made in an effort to delay the
proceedings.
{¶ 19} Attorney Settina indicated to the trial court that if he was allowed to
represent Breneman, he would request a continuance of approximately sixty days in which to
familiarize himself with the facts of the case and prepare for trial. It is important to note
that no prior continuances had been requested by the defense, nor was it unreasonable for
Attorney Settina to request a continuance in order to mount an adequate defense. We also
note that the State did not oppose Attorney Settina’s request for a continuance, only stating
that it was prepared to go forward with the motion to suppress that day, as well as the jury
trial scheduled for April 29, 2010.
{¶ 20} The trial court’s only apparent concern, however, was preserving the original
trial schedule, and for that reason it denied the motion for substitution. Specifically, the
trial court stated the following:
The Court’s reviewed the Court’s calendar up through mid-July. The
Court finds that the opportunity for a rescheduled trial would be very difficult
to guarantee during the time period. Court finds that the State is prepared
with witnesses. Court finds it would be an adverse effect on the State’s
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witnesses to have a continuance. Court does not currently know the vacation
schedule of any of the officers or the witnesses. Court knows we’ve run into
vacation problems with the Urbana Police Division before in the
summertime. *** There’s no showing that defense witnesses are unavailable
for the present trial. Current trial counsel is prepared to proceed. Court
finds that the feeling of comfortability [sic] in new counsel is not a sufficient
basis for a change of counsel at this stage.
Case was filed February 4, 2010. Attorney Cogswell has been
involved by court appointment since February of 2010. There is no showing
that current defense counsel has not properly performed duties of counsel.
So the request of Attorney Settina to appear on the behalf of the
defendant is not granted. It’s because defense counsel is not able to be
properly prepared to represent the defendant based on the current trial
schedule. ***.
{¶ 21} Simply put, the record does not support the findings of the trial court.
Initially, we note that no evidence was adduced which established that there “would be an
adverse effect on the State’s witnesses” if a continuance was granted. Other than asking the
State the number of witnesses it expected at trial and whether those witnesses had been
advised of the trial date, the court made no inquiries regarding any “adverse effect” a
continuance would have on the State’s witnesses. Additionally, the trial court’s speculation
with respect to the vacation schedules of the officers of the Urbana Police Department was
not a proper basis upon which to deny the motion for substitution and request for
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continuance.
{¶ 22} From the record, it appears that the motion to suppress and the trial in this
matter were set rather quickly. Breneman was indicted on February 4, 2010, and the trial
was scheduled in less than three months time on April 29, 2010. Simply put, there was no
concern that the case was stale nor that there was a need to move at an expedited pace to
satisfy speedy trial demands. We also note that Breneman was out on bond during almost
the entirety of the case.
{¶ 23} Lastly, we note that immediately after denying Attorney Settina’s motion to
appear and request for a continuance, the trial court continued the motion to suppress
hearing until April 21, 2010, in order to accommodate Attorney Cogswell’s schedule. In
light of the trial court’s marked emphasis on the ability of counsel to proceed with the
current case schedule and the “adverse effect” any continuance would have on the State’s
witnesses, it seems unusual that the trial court would then continue the motion to suppress
by seven days. We also note that Attorney Settina was not asked if he could be ready for
the rescheduled motion hearing on April 21, 2010. Simply put, the trial court’s basis for
denying the motion to appear and request for a continuance was severely undermined by its
subsequent decision to continue the motion to suppress in order to accommodate appointed
counsel.
{¶ 24} Upon review, we find that the trial court’s decision to deny Breneman’s
motion for substitution of counsel and Attorney Settina’s request for a continuance was
unreasonable under the “unique facts” presented in the instant case. Breneman’s motion for
substitution was not made in an untimely manner. The State did not oppose Breneman’s
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motions, and no evidence was adduced which established that the State’s witnesses would be
adversely affected by a continuance. There were no prior requests for continuances, and
there was no evidence of bad faith or contrivance on the part of Breneman or Attorney
Settina. The trial court’s rigid and inflexible adherence to its trial calendar ignored
Breneman’s presumptive right to counsel of his own choosing.
{¶ 25} Breneman’s first assignment of error is sustained.
{¶ 26} Breneman’s second assignment of error is as follows:
{¶ 27} “DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL
COUNSEL WHEN TRIAL COUNSEL REPEATEDLY ELICITED PREJUDICIAL
TESTIMONY OF DEFENDANT’S PRIOR BAD ACTS AND REPUTATION AND
FAILED TO OBJECT TO QUESTIONS PROPOSED BY JURORS.”
{¶ 28} In light of our disposition with respect to Breneman’s first assignment of
error, his second assignment is moot.
{¶ 29} Breneman’s first assignment of error having been sustained, the judgment of
the trial court is reversed, and this matter is remanded for proceedings consistent with this
opinion.
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FAIN, J. and HALL, J., concur.
Copies mailed to:
Nick A. Selvaggio
Michael R. Pentecost
Hon. Roger B. Wilson