State v. Mack

[Cite as State v. Mack, 2014-Ohio-5506.]

STATE OF OHIO, NOBLE COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )
) CASE NO. 14 NO 420
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
ANTHONY MACK, )
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 213-2107.

JUDGMENT: Affirmed.

APPEARANCES:
For Plaintiff-Appellee: Attorney Kelly Riddle
Prosecuting Attorney
406 North Street
Caldwell, Ohio 43724

For Defendant-Appellant: Attorney Peter Cultice
58 North Fifth Street
Zanesville, Ohio 43701

JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro

Dated: December 12, 2014
[Cite as State v. Mack, 2014-Ohio-5506.]
VUKOVICH, J.

{¶1} Defendant-appellant Anthony Mack appeals from his conviction entered
after a jury trial in the Noble County Common Pleas Court. He argues that the trial
court erred in not conducting a more detailed inquiry as to why he wanted new counsel
on the morning of trial. The issue is whether the court sufficiently inquired of appellant
after he answered that he was not satisfied with counsel and whether his answer
invoked a duty on the part of the trial court to draw out more specific information which
may have supported appellant’s claim.
{¶2} The defendant has the initial burden to provide a specific explanation
before the court’s limited duty arises. Upon the trial court’s inquiry, appellant provided
only a vague statement that counsel was rude and that “she haven’t did anything I
asked.” Plus, the court subsequently permitted appellant a further opportunity to
provide specifics and he did not do so. For the following reasons, the judgment of the
trial court is affirmed.
STATEMENT OF THE CASE
{¶3} Appellant was indicted for two counts of complicity to drug trafficking with
specifications for the offense taking place within the vicinity of a school in violation of
R.C. 2925.03(C)(6)(b) (which makes trafficking in heroin a fourth instead of a fifth
degree felony if committed within the vicinity of a school) and R.C. 2923.03(A)(2)
(defining the aiding and abetting aspect of complicity). The court appointed counsel
on August 29, 2013. At the end of September, counsel secured a continuance of the
October 23 trial on appellant’s request.
{¶4} Then, at the November 15 pretrial, appellant announced that he would
be retaining an attorney. The court ordered appellant to retain counsel within a week.
At the scheduled trial more than three weeks later, appellant had not retained counsel;
nor did appellant appear (as he had been arrested).
{¶5} On December 20, 2010, a bond forfeiture hearing was held, and the
court appointed new counsel for appellant. Appellant thereafter appeared at the
January 24, 2014 pretrial with this attorney. As counsel did not receive the state’s lab
reports on the heroin until February 19, she filed a motion on the issue, and the third
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trial date was pushed back from March 3 to April 2, 2014 in order to provide more time
after the state’s discovery.
{¶6} On the morning of trial, the state advised that it would only be proceeding
on count two. The court opened by noting that this was the second attorney appointed
to represent appellant and asked if he was satisfied with her representation. When
appellant responded in the negative, the court asked, “And why not?” Appellant
replied: “Cause she haven’t did anything I asked her and plus she talking to me like
rudely and like being rude.” (Tr. 4).
{¶7} The court pointed out that trial was about to begin and the venire was on
its way to the courtroom. (Tr. 4). The court expressed that it would not appoint
another attorney, stating that he could have this attorney or he had the right to
represent himself. As to the latter choice, the court warned that representing oneself
is not a good idea, pointing out his offenses and the maximum sentence. (Tr. 5-6).
{¶8} When the defendant asked why he could not have another attorney, the
court replied: “Because I am not going to continually appoint and appoint and appoint.
I understand, okay, that because of personalities that you may fall out with a lawyer.
Okay. And I give you the benefit - - I give a Defendant the benefit of the doubt. You
fell out with the first lawyer I appointed. I will appoint a second lawyer.” (Tr. 5).
{¶9} As to appellant’s second attorney, the judge noted that she has been
appointed to represent defendants in the past, she has tried cases to juries, and “she
is a very competent defense attorney.” (Tr. 5). When appellant said that he could not
represent himself, the court responded that this attorney would represent him, after
which appellant voiced, “I don’t want her to.” The court asked appellant: “Is there
anything else you wish to say to the Court at this time?” Appellant merely reiterated:
“I don’t want her to represent me.” He also declared that the court was violating his
rights. (Tr. 6).
{¶10} The case immediately proceeded through jury selection and the jury trial.
Appellant’s accomplices testified against him. The tenant of the apartment that was
searched where used needles, spoons, and pills were found testified that appellant
made a drug run to Columbus and then stayed at her apartment where he packaged
the drugs and sold some to her. The principal offender, who sold the drugs in the
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apartment parking lot, testified that someone called and asked for heroin, he asked
appellant for some, appellant gave him some to sell, he sold four packs at $35 each to
the confidential informant, and he then gave the money to appellant.
{¶11} Upon a defense motion for acquittal at the close of the state’s case, the
court dismissed the vicinity of a school specification, reducing the trafficking charge to
a felony of the fifth degree. The jury found appellant guilty, and the court sentenced
him to eleven months in prison. Appellant filed a timely notice of appeal from the
court’s April 21, 2014 sentencing entry.
ASSIGNMENT OF ERROR
{¶12} Appellant’s sole assignment of error provides:
{¶13} “THE TRIAL COURT ERRED BY NOT CONDUCTING A MORE
DETAILED INQUIRY AS TO WHY DEFENDANT-APPELLANT WANTED NEW
COUNSEL PRIOR TO THE START OF TRIAL.”
{¶14} Appellant acknowledges his description of counsel as “rude” is not likely
grounds for remand. But, he urges that his other answer, “she haven’t did everything I
asked her,” is grounds for remand because the court did not further inquire into the
matter by explicitly asking him what exactly he asked her to do that she did not do
(and then investigate as to why she did not do it, if it turned out to be something
important). Appellant blames the mystery of the answer to this question on the trial
court failing to perform its duty to investigate the matter on the record. He relies on the
syllabus in Deal and asks us to apply the remedy formulated by the Supreme Court in
that case: to reverse and remand for the trial court’s reinvestigation on the record of
counsel’s competence.
{¶15} The state reasons that upon appellant’s expression of dissatisfaction with
counsel, the trial court promptly asked him, “Why not?” It is insisted that appellant
then failed to meet his burden to make a specific allegation that would prompt a further
inquiry. The state distinguishes the out-of-district appellate cases cited by appellant
and emphasizes that in the Supreme Court’s Deal case, the defendant raised the
specific failures of counsel, which was the reason that court’s duty was triggered.
{¶16} The state stresses that appellant’s statement that counsel was rude at
most shows a personality conflict, which is not grounds for substitution, especially
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considering that this was the second appointed counsel, the defense was granted
multiple continuances, and the trial was beginning. As to his complaint, “she haven’t
did anything I asked,” it is urged that the trial court was not required to conduct a more
detailed inquiry as appellant did not raise a specific complaint or allege any fact that, if
true, would support substitution. The state reads this as a general disagreement in
trial tactics.
{¶17} Finally, it is pointed out that appellant was thereafter provided with
another opportunity to provide specific facts and to state what counsel did not do that
he asked of her, but he failed to elaborate and merely repeated the he did not want her
to represent him. (Tr. 6). The state also addresses the court’s discretion in
determining whether to substitute counsel; however, appellant’s sole argument asks
whether the trial court was required to conduct a detailed investigation under Deal.
{¶18} The constitutional right to counsel does not guarantee a meaningful
relationship between a defendant and counsel. Morris v. Slappy, 461 U .S. 1, 14, 103
S.Ct. 1610, 75 L.Ed.2d 610 (1983). The mere voicing of a personality conflict and
even some hostility does not establish that a relationship of a client with his attorney
has eroded to a point where counsel would be rendering ineffective assistance. State
v. Hennes, 79 Ohio St.3d 53, 65, 679 N.E.2d 686 (1997). 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, 37 Ohio St.3d
286, 292, 525 N.E.2d 792 (1988). An indigent defendant must establish good cause
for substitution of counsel. State v. Murphy, 91 Ohio St.3d 516, 523, 747 N.E.2d 765
(2001). The evaluation of whether the defendant’s complaint is reasonable is
reviewed only for an abuse of discretion. Id.
{¶19} As aforementioned, appellant’s argument here is focused on the trial
court’s legal duty to inquire into an indigent’s complaint. The Deal syllabus provides:
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
 -5-

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.
State v. Deal, 17 Ohio St.2d 17, 46 O.O.2d 154, 244 N.E.2d 742, (1969), syllabus.
{¶20} In that case, the Court stated that the defendant “did everything he could
be expected to do to preserve his objection” by making a complaint that “was specific,
not vague or general.” Id. at 18-19. The remedy imposed was reversal and remand
for a reinvestigation of the defendant’s claim to be put on the record, and the Court
stated that if the trial court then found the claim of incompetent counsel unfounded, the
court could re-enter the judgment. Id. at 20.
{¶21} Deal set forth a “limited judicial duty” which “arises only if the allegations
are sufficiently specific.” State v. Johnson, 112 Ohio St.3d 210, 858 N.E.2d 1144,
2006-Ohio-6604, quoting State v. Carter, 128 Ohio App.3d 419, 423, 715 N.E.2d 223
(4th Dist.1998). “[V]ague or general objections do not trigger the duty to investigate
further.” Id. For instance, where a capital defendant voiced that he was not pleased
with the performance of his court-appointed attorneys at trial, he would not pay them
had they been retained attorneys, and he did not wish to have them present mitigating
evidence at the death stage, the Supreme Court found only generalized dissatisfaction
with performance which did not trigger the trial court’s Deal duty. State v. Fry, 125
Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239 ¶ 158-165.
{¶22} Thus, the burden is in fact on the defendant to make a sufficiently
specific allegation rather than a vague or general one before the trial judge has any
duty to investigate further. Johnson, 112 Ohio St.3d 210 at ¶ 68; Deal, 17 Ohio St.2d
at 18-19; State v. Jones, 7th Dist. No. 06MA17, 2008-Ohio-3352, ¶ 9; Carter, 129 Ohio
App.3d at 423 (Deal duty triggered only if the defendant meets his burden to allege
facts which, if true, would require relief). See also Murphy, 91 Ohio St.3d 516, 523
(indigent must establish good cause for substitution).
{¶23} Here, appellant had an attorney appointed. He waited many weeks and
thereafter expressed that he wished to terminate her and retain counsel. He
subsequently failed to retain counsel. New counsel was then appointed for him. The
trial date was continued three times over the course of the case. Just as the venire
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was to be called in on the morning of trial, appellant answered that he was dissatisfied
with counsel. The court asked appellant to explain why he not satisfied.
{¶24} Appellant’s only explanation for wanting new counsel was: “she haven’t
did anything I asked her and plus she talking to me like rudely and like being rude.”
(Tr. 4). Perceived rudeness shows a mere personality conflict. See, e.g., Parma v.
Fonte, 8th Dist. No. 99147, 2013-Ohio-3804, ¶ 64 (complaining that counsel does not
like you is not sufficient to trigger a Deal duty). The statement counsel did not do what
he asked is general and vague. It does not demonstrate that counsel failed to do an
act which if true would be cause for concern. Thus, appellant did not meet his burden
of specificity and did not trigger the duty of the trial court to conduct a Deal
investigation.
{¶25} We also point out that after a discussion of counsel’s skills, an
explanation that appellant had no right to choice of counsel, and a discussion of self-
representation, the court asked appellant if he had anything else to say. (Tr. 4-6).
Instead of using that additional opportunity to explain what counsel failed to do that
would be significant to his representation, appellant merely repeated that he did not
want her to represent him, thus allowing this further opportunity of explanation to pass.
(Tr. 6).
{¶26} For the foregoing reasons, appellant’s sole assignment of error is
overruled, and the judgment of the trial court is affirmed.

Waite, J., concurs.
DeGenaro, P.J., concurs.