[Cite as State v. Chambliss, 2011-Ohio-3574.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 91272
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DANTAE CHAMBLISS, ET AL.
DEFENDANTS-APPELLANTS
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-500664
BEFORE: Keough, J., Boyle, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: July 21, 2011
ATTORNEYS FOR APPELLANTS
For Dantae Chambliss and James Bennett
Mark B. Marein
Steven L. Bradley
Michael E. Stepanik
Marein & Bradley
222 Leader Building
526 Superior Avenue
Cleveland, OH 44114
For Travis Sanders
Gregory Scott Robey
Robey & Robey
14402 Granger Road
Maple Heights, OH 44137
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Thorin O. Freeman
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} This appeal is before this court on remand from the Ohio Supreme
Court.
{¶ 2} In State v. Chambliss, Cuyahoga App. No. 91272, 2008-Ohio-5285
(Chambliss I), defendants-appellants, Dantae Chambliss, James Bennett, and
Travis Sanders, appealed the trial court’s judgments removing their respective
counsel, remanding them to the county jail, and ordering them to retain new
counsel.
{¶ 3} This court set forth the facts and procedural history in Chambliss
I as follows:
{¶ 4} “Appellants were indicted on several drug-related offenses, and
each retained his own attorney. The charges carried mandatory prison time.
All three appellants posted the bonds that were set for them, and were
released pending trial. Appellants filed various pretrial motions, including
motions to compel production of the search warrant affidavit and to unseal it,
motions to suppress, and motions to disclose the identity of a confidential and
reliable informant. These motions [were] never ruled on.
{¶ 5} “The record reflects that the State did not want to reveal the
identity of the informant in this case and, therefore, was hesitant to permit
the search warrant affidavit to be unsealed. As a result of these concerns, the
State and appellants reached a compromise whereby appellants would plead
guilty to amended counts of the indictment which did not carry mandatory
prison time, the identity of the informant would not be revealed, and the
search warrant would not be unsealed. As part of the plea agreement, the
State agreed to recommend a community control sanction at sentencing for
Sanders and two-year sentences for Chambliss and Bennett.
{¶ 6} “The trial judge assigned to the case was unavailable on the day of
the plea, and the plea was taken by another judge. The plea journal entry on
behalf of Sanders states that ‘[t]he state recommends community control
sanctions and should the sentencing court choose to impose a prison term, the
state has no objection to withdrawal of the pleas.’ The plea journal entries on
behalf of Chambliss and Bennett state that the ‘[r]ecommended sentence by
the state is 2 years[;] no objection by the state to withdraw the plea should the
court choose to impose a harsher sentence.’ On the date set for sentencing,
the trial court refused to accept the agreement between the State and the
defense, and the docket reflects that appellants then orally moved to withdraw
their pleas. These oral requests were granted on March 27, 2008 and the
court set the matter for trial on April 8, 2008 at 9:00 a.m.
{¶ 7} “On April 8, the day set for trial, in addressing some preliminary
issues, Bennett’s attorney indicated that the search warrant affidavit had not
yet been ordered unsealed and, as a result, if required to proceed to trial
without the necessary information to which he was entitled, he would be
ineffective as counsel within the meaning of the Sixth Amendment. In
response, the court ordered removal of all three of appellants’ attorneys,
ordered appellants to retain new counsel within ten days, verbally ordered the
appellants’ bonds revoked, by judgment entry ordered the appellants
remanded to the county jail, and refused former counsels’ requests to be heard
on the record on behalf of their clients.” Id., ¶2-5.
{¶ 8} On appeal, appellants challenged the trial court’s judgments
removing their counsel and remanding them to jail. This court vacated the
trial court’s remand order but, in light of the Ohio Supreme Court’s decision in
State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119,
held that the trial court’s order directing the unilateral removal of appellants’
retained counsel was not a final, appealable order and, accordingly, dismissed
the appeal as to that issue. Id., ¶18.
{¶ 9} The Ohio Supreme Court accepted jurisdiction to examine the
issue of whether the denial of retained counsel of choice is a final, appealable
order. State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785, 947 N.E.2d
651. The Court found that several years after its decision in Keenan, the
United States Supreme Court considered the effect of a trial court’s erroneous
deprivation of a criminal defendant’s choice of counsel in United States v.
Gonzalez-Lopez (2006), 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409, and
held that “the erroneous denial of counsel of choice is a structural error that
occurs at the very moment counsel is removed,” entitling the defendant to an
automatic reversal of his conviction. Id., ¶23. Hence, the Ohio Supreme
Court held that a pretrial ruling disqualifying a criminal defendant’s retained
counsel of choice is a final order, subject to immediate appeal, under the
three-prong test for determining whether an order is final and appealable
under R.C. 2505.02(B)(4): 1 (1) the order grants or denies a provisional
remedy; (2) the order determines the action with respect to the provisional
remedy and prevents a judgment in favor of the appealing party with respect
to the provisional remedy; and (3) the order renders a postconviction appeal
ineffective or meaningless. Id., ¶22 and 27.
{¶ 10} The Supreme Court therefore reversed this court’s judgment and
remanded the matter for further proceedings on the merits of the appeal.
Accordingly, we now consider the merits of appellants’ claim, i.e., whether the
trial court’s judgment removing appellants’ retained counsel was error. The
State takes no position on the merits of appellants’ claim.
{¶ 11} We review for an abuse of discretion. State v. Keenan, 81 Ohio
St.3d 133, 137, 1998-Ohio-459, 689 N.E.2d 929. A court abuses its discretion
when its decision is unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
Enacted after Keenan.
1
{¶ 12} As this court found in Chambliss I, the trial court unilaterally
removed appellants’ retained counsel “without request of either party, without
notice and without opportunity to be heard, rendering the appellants under
indictment, remanded to jail without bond, and wholly without counsel.” Id.,
¶13. Such action was indeed an abuse of discretion.
{¶ 13} Appellants’ assignment of error is sustained. The trial court’s
judgment removing defense counsel is reversed and the matter is remanded
for further proceedings consistent with this opinion.
Reversed and remanded.
It is ordered that appellants recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant
to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR