State v. Harrison

[Cite as State v. Harrison, 2011-Ohio-3258.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 95666

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

LORENZO HARRISON
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-513945

BEFORE: E. Gallagher, J., Sweeney, P.J., and Keough, J.

RELEASED AND JOURNALIZED: June 30, 2011
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ATTORNEY FOR APPELLANT

David L. Doughten
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Mary McGrath
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113

EILEEN A. GALLAGHER, J.:

{¶ 1} Lorenzo Harrison appeals from the decision of the trial court,

denying his pro se request for new counsel. Harrison argues the trial court

failed to follow the mandates issued by this court in State v. Harrison,

Cuyahoga App. No. 93132, 2010-Ohio-2778. In particular, Harrison argues

the trial court erred in failing to hold a full and fair hearing and in failing to
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appoint new counsel for the hearing on remand. For the following reasons,

we affirm the decision of the trial court.

{¶ 2} On June 17, 2010, this Court announced its opinion in Harrison.

The facts in Harrison are as follows:

“I. Procedural History

In August 2008, Harrison was indicted on ten counts of rape, each with
a furthermore clause that he purposely compelled the victim to submit
by force or threat of force, a furthermore clause that the victim was
under ten years of age, a notice of prior conviction, and a repeat violent
offender specification. Harrison was also indicted on ten counts of
kidnapping, each with a sexual motivation specification, notice of prior
conviction, and repeat violent offender specification.

Two of the rapes (Counts 1 and 2) and kidnappings (Counts 3 and 4)
were alleged to have occurred between August 1, 2005 and January 15,
2006. Four of the rapes (Counts 5-8) and kidnappings (Counts 9-12)
were alleged to have occurred between February 1, 2006 and August 1,
2006. The remaining rapes (Counts 13-16) and kidnappings (Counts
17-20) were alleged to have occurred between August 2, 2006 and June
1, 2007. The sole alleged victim was R.A.

A bill of particulars delineated that the charges set forth in Counts 1-4
occurred at a Columbia Avenue, Cleveland home; the charges set forth
in Counts 5-12 occurred at an East 106th Street, Cleveland apartment;
and the remaining charges set forth in Counts 13-20 occurred at a
Woodside Avenue, Cleveland apartment.

After a psychiatric evaluation was performed on Harrison, the case
was placed on the common pleas court’s mental health court docket.

The repeat violent offender specifications and notices of prior
conviction were bifurcated from the underlying charges and tried to
the court. On the day of trial, Harrison made an oral motion to excuse
his assistant public defender, but the court summarily denied his
request. Counts 13-20 were dismissed at the close of the state’s case
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pursuant to the defense’s Crim.R. 29 motion. The defense did not
present any evidence.

The jury found Harrison guilty of the following: Count 1, rape, and
Count 3, kidnapping (at the Columbia Avenue address); Count 5, rape,
Count 8, rape, Count 9, kidnapping, and Count 12, kidnapping (at the
East 106th address). Harrison was also found guilty of the notices
and specifications attendant to Counts 1, 3, 5, 8, 9, and 12. He was
acquitted of the remaining charges.

The trial court sentenced him to a life term for the rape counts, to be
served concurrently to ten-year sentences for the kidnapping
convictions.

II. Trial Testimony

The victim, R.A., testified that she and her mother lived in Cleveland
with Harrison at three different residences; she had previously lived
with her Aunt Evelyn in Detroit. She stated that Harrison anally
raped her on seven different occasions during the time she lived with
him. R.A. testified that the incidents occurred while her mother was
at work and R.A. was at home with Harrison. After the last time that
Harrison raped R.A., he told her that what he had done was wrong and
he was going to stop.

R.A. testified that she once told her mother about the rapes, but her
mother did not do anything. Her mother admitted that R.A. had told
her about Harrison’s conduct and that she did not do anything because
she loved Harrison, did not want to see him get in trouble, and did not
believe R.A. She continued to leave R.A. alone with Harrison after
R.A.’s disclosure.

The trial testimony also revealed that R.A.’s mother and Harrison had
a tumultuous relationship that involved drinking and physical
violence. R.A.’s mother eventually tired of the relationship, and she
and R.A. moved to their hometown of Detroit. Shortly after the move,
R.A. told her Aunt Evelyn of the rapes; Evelyn immediately contacted
the Cleveland police.

A medical exam was conducted on R.A. two months after the last rape;
no evidence of sexual conduct was noted.”
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Id.
{¶ 3} In its opinion, this court overruled Harrison’s objections to the

jury panel, his claim of ineffective assistance of counsel, his challenge to the

weight of evidence supporting his convictions, and Harrison’s argument that

his waiver of the right to testify was not knowingly, intelligently, or

voluntarily given. Id. However, this court found merit to Harrison’s fourth

assignment of error, in which he argued that the trial court erred in denying

his request to dismiss his counsel without investigation into the grounds for

the request.

“Just prior to voir dire, Harrison asked for replacement counsel, to
which the court responded, ‘[t]hat request is denied.’ Trial then
commenced.

At sentencing, Harrison raised the issue of his request for replacement
counsel and stated that he felt as if he had been ‘railroaded’ by the
court and counsel. Defense counsel stated, ‘I don’t want to get into a
discussion with Mr. Harrison about the issues he raised. We do have
a – I just don’t want to do that on the record.’ The assistant
prosecutor responded, ‘Your Honor, if I may for the record just point
out that at no point during the four days of trial did the defendant
state he was not being properly represented, he never brought
anything forward to the court, so I would just like to state that for the
record.’”

Id.

{¶ 4} In Harrison, this court found error with the trial court’s

summary dismissal of Harrison’s request for replacement counsel without

permitting him to explain his reasons for the request. Based on the
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authority from Ohio case law, this Court remanded the case to the trial court

“for the limited purpose of inquiring into Harrison’s allegations, with

instructions to re-enter the judgment of conviction if the allegations are

unfounded.” Id.

{¶ 5} On August 20, 2010, the trial court conducted a hearing

pursuant to this court’s order of remand. The trial court provided Harrison

with the opportunity to explain why he wanted another lawyer. Harrison

stated that counsel told his family that he thought Harrison was guilty and

that it was only his job to get the best plea bargain for him, and that counsel

would not call or speak to any of Harrison’s witnesses. Harrison further

stated that counsel refused to acquire police reports that would show that he

was evicting R.A. and her mother from his residence and that they did not

leave on their own.

{¶ 6} In response, defense counsel explained that Harrison did claim

that a lot of people lived in the house when these alleged incidents occurred

and that any number of those individuals could have been an alibi witness.

Defense counsel stated that he did attempt to locate an alibi witness,

however, because the allegations happened over multiple years and at least

three separate locations, counsel was unable to pinpoint the days when other

people were present. Counsel also stated that he did not recall anything
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about the police reports Harrison mentioned.

{¶ 7} In response to the court’s questions, trial counsel stated that he

did speak with Harrison’s family and that he always leaves the decision to go

to trial to the client. Counsel stated that he believed the plea bargain offer

was a good offer, but he never said Harrison had to take the deal. In fact,

Harrison elected to proceed to a jury trial.

{¶ 8} Harrison next complained that the trial court never asked him or

let him proceed with his own counsel; rather the court subjected him to the

public defender. Harrison admitted that the first time he told the court he

was bringing in paid counsel was on the date of trial, with a jury waiting to

proceed. Additionally, Harrison admitted to filing numerous pro se motions

with the court, but that he never told the court of his new counsel because he

did not have the opportunity. The trial court fund Harrison’s claim

unbelievable given all of the motions Harrison filed during the course of his

case.

{¶ 9} Harrison next told the court that he hired Attorney David

Doughten. Harrison stated that he had not paid Mr. Doughten but that he

was in the process of getting his retainer fee. Harrison reported that Mr.

Doughten would make an appearance as soon as he got the money and all

court papers. Although Mr. Doughten never made an appearance during
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Harrison’s trial, he did represent Harrison on appeal because, according to

Harrison, “that was the stage that [they were] at.” Tr. 11. Further,

Harrison stated that Mr. Doughten did not make an appearance at trial

because he was not yet on the team. Harrison then stated that there was no

way he wanted to go to trial with the public defender because he used to be a

prosecutor, and still had friends in the prosecutor’s office.

{¶ 10} At the conclusion of the hearing, the trial court determined that

the reasons Harrison asserted for replacing counsel were insufficient. The

trial court found that had Harrison hired an attorney, the attorney could

have made an appearance. The trial court then denied Harrison’s request

for new counsel.

{¶ 11} Harrison appeals, raising the two assignments of error contained

in the appendix to this opinion.

{¶ 12} In his first assignment of error, Harrison argues the trial court

failed to provide a full and fair hearing on the remand from this court. This

assignment of error lacks merit.

{¶ 13} In State v. Deal (1969), 17 Ohio St.2d 17, 244 N.E.2d 742, the

Ohio Supreme Court stated the following at 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
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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.”

{¶ 14} In State v. Prater (1990), 71 Ohio App.3d 78, 83, 593 N.E.2d 44,

the Tenth Appellate District found a judge’s concerns about the timeliness of

a motion for new counsel unpersuasive in ruling that the judge should have

inquired about the defendant’s complaint. The Ohio Supreme Court cited

Prater with approval in State v. Keith (1997), 79 Ohio St.3d 514, 524, 684

N.E.2d 47. 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.”

{¶ 15} This court explained the purpose of the limited remand: “[t]he

purpose of the inquiry and investigation are to allow a defendant the

opportunity to place his allegations on the record, and to show sufficient
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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.” Beranek. This court noted that if the defendant’s allegations are

specific enough to justify further investigation, the court must investigate,

but no further investigation is required for vague or general reasons for

wanting to discharge counsel. Beranek. This court also stated, quoting

Prater, that the investigation may be “‘brief and minimal.’” Beranek.

{¶ 16} This court held that the judge on remand should attempt to

determine those issues for which the defendant sought to discharge his

attorney initially, and acknowledged that “in the aftermath of trial,” a

defendant “might assert numerous errors of his trial counsel,” but cautioned

that “it is unlikely that he would foresee each error prior to trial.” Beranek.

{¶ 17} It was on the above authority that this court in Harrison

remanded this case for a hearing. On remand, the trial court properly

conducted a hearing and allowed Harrison to place on the record, his reasons

for the request for new counsel. After reviewing the record and all evidence

adduced at the hearing, we find that the trial court made sufficient inquiry
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into the allegation to provide this court with meaningful review. We also

agree with the trial court that Harrison’s reasons supporting his request for

new counsel were insufficient.

{¶ 18} Primarily, during the hearing, Harrison made general, broad

statements about his dislike for the manner in which trial counsel conducted

the investigation into his case. Harrison claimed that he had alibi

witnesses and police reports that would provide a motive for R.A. and her

mother to falsely accuse him. However, Harrison never provided the name

of any alleged alibi witness or any police report showing that he evicted R.A.

or her mother. Moreover, defense counsel provided a reasonable

explanation for the lack of an alibi witness: given the length of time over

which these allegations occurred and the number of residences at which they

were to have occurred, defense counsel found it impossible to pinpoint any

alibi witnesses. Lastly, this court rejected Harrison’s suggestion that the

victim made up the crimes. Harrison, supra.

{¶ 19} Next, Harrison claims the trial court erred when it failed to

inquire into the attorney-client relationship during the hearing. Initially,

we note that Harrison never alleged that a breakdown between himself and

trial counsel ever occurred. Nonetheless, we find that the trial court was

not required to do so. The purpose of the hearing was to allow Harrison to
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state the reason why he wanted replacement counsel. If the reasons were

vague and general, as the trial court found in this case, no further

investigation was required. Prater, Beranek. Accordingly, the trial court

did not have to determine whether a breakdown in the attorney-client

relationship occurred.

{¶ 20} Harrison also claims that the trial court erred by allowing his

trial counsel to represent him on the remand hearing and further erred when

it failed to place himself and his trial counsel under oath. Again, however,

Harrison misses the point of the limited remand in his case. A court is

required to conduct an investigation only if it determines that a defendant’s

allegations are specific enough. Prater, Beranek. The remand hearing was

an informal procedure designed to flush out meritorious claims for new

counsel. Had Harrison presented such a claim, the trial court would have

been bound to conduct a further investigation, which would have presumably

involved the swearing in of witnesses and assigning of counsel.

{¶ 21} Based on the foregoing, we agree with the court’s conclusion that

Harrison’s allegations for replacement counsel were insufficient.

{¶ 22} Harrison’s first assignment of error is overruled.

{¶ 23} In his second assignment of error, Harrison argues that the trial

court erred when it failed to appoint new counsel for the remand hearing.
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We disagree.

{¶ 24} Primarily, we note that in making this argument, Harrison fails

to cite to any authority requiring a trial court to appoint counsel on a remand

hearing on a motion for replacement counsel. Moreover, similar case law

and this court’s decision in Harrison do not require new counsel to be

appointed on remand.

{¶ 25} Nonetheless, Harrison argues that had new counsel been

appointed, counsel would have argued that Harrison did not know he had an

absolute right to testify and that trial counsel’s failure to acquire a medical

expert was an error. Additionally, Harrison claims that appointment of

counsel would have permitted cross-examination of witnesses and the

procurement of records that would have allowed the court to determine

whether Harrison’s charges were justified.

{¶ 26} Again, as stated above, on remand, the trial court was merely

required to allow Harrison to state his reasons for wanting to discharge

counsel. Prater, Beranek, Harrison. If Harrison’s allegations were found to

be vague and general, as in the instant case, no further investigation was

warranted. Moreover, this Court specifically rejected Harrison’s arguments

concerning his right to testify and the lack of a medical expert. See,

Harrison.
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{¶ 27} Accordingly, Harrison’s second assignment of error is overruled.

{¶ 28} The judgment of the trial court is 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.

EILEEN A. GALLAGHER, JUDGE

JAMES J. SWEENEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR

Appendix

Assignments of Error:

“I. The trial court failed to provide the appellant a full and
fair hearing on the remand from this court.”
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“II. The trial court deprived the appellant his right to
assistance of counsel by failing to appoint counsel for the
remand procedure.”