State v. Yetts

[Cite as State v. Yetts, 2019-Ohio-1203.]

IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
JEFFERSON COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

JAMAR YETTS,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY
Case No. 18 JE 0004.

Criminal Appeal from the
Court of Common Pleas of Jefferson County, Ohio
Case No. 17 CR 114.

BEFORE:
Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.

JUDGMENT:
Affirmed.

Atty. Jane M. Hanlin, Jefferson County Prosecutor and Atty. Samuel A. Pate, Assistant
Prosecuting Attorney, Jefferson County Justice Center, 16001 State Route 7,
Steubenville, Ohio 43952, for Plaintiff-Appellee.

Atty. Eric M. Reszke, Suite 810, Sinclair Building, Steubenville, Ohio 43952, for
Defendant-Appellant.

Dated: March 29, 2019

WAITE, P.J.
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{¶1} Appellant Jamar Yetts appeals from the judgment of the Jefferson County

Court of Common Pleas finding him guilty of possession of cocaine, trafficking in cocaine,

having weapons under disability and receiving stolen property, following jury trial.

Appellant raises numerous issues in this appeal. He argues his conviction is against the

manifest weight of the evidence. He also contends the trial court erred in sentencing him

to a term of eleven years for the convictions. Additionally, he argues error occurred when

his letter offering to plead guilty in return for a lesser sentence was presented to the jury.

Finally, Appellant contends the trial court erred in granting his request to self-represent.

Based on the analysis below, the judgment of the trial court is affirmed.

Factual and Procedural History

{¶2} On June 14, 2017, the Jefferson County Drug Task Force used two

confidential informants to purchase cocaine from Appellant. At the time of the transaction,

Appellant was sitting in his vehicle in the parking lot outside of his apartment. The drug

task force had in place an established protocol for controlled drug buys. Detective Tom

Ellis (“Det. Ellis”) of the task force testified that the protocol was followed in this buy. First,

a telephone call was made by an informant requesting he meet with Appellant so he could

purchase drugs - $40 worth of cocaine. This call was recorded by the task force. At the

end of the recording, Det. Ellis noted on the recording the date and time; the name of

Appellant; Appellant’s telephone number; the type of drug being purchased and the dollar

amount of the buy. After the buy was set up, Confidential Informant #1 was fitted with an

audio and video recording device. Confidential Informant #2 was not. Det. Ellis was

stationed in a vehicle across the street from Appellant’s apartment where the sale took

place and took photographs of the transaction. A review of the video reflects that Det.

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Ellis provided an introductory narrative including the date, Appellant’s name and that the

transaction involved a $40 buy of cocaine. The video shows both informants driving to

the location. Confidential Informant #2 got out of the car first. Informant #1 followed

shortly after and approached Appellant and Informant #2. Although the video is

somewhat shaky and difficult to follow, it appears that the buy had already occurred

between Appellant and Informant #2 by the time Informant #1 reached Appellant’s car.

Appellant’s face is momentarily visible on the video but there is no audio discussing the

buy nor is there visible confirmation. Once the transaction was concluded, the informants

met Det. Ellis at a predetermined location where they turned over the contraband. The

substance was field tested as positive for cocaine.

{¶3} On July 20, 2017, the same two confidential informants arranged a second

purchase of cocaine from Appellant at his residence at 730 N. Seventh Street, Apartment

212, Steubenville, Ohio. As with the June 14th buy, a recorded telephone call was made

to set up the purchase. After the call, Confidential Informant #1 was again wired with an

audio/video device and Confidential Informant #2 was not. The buy is memorialized in

three digital video files, each approximately ten minutes in length. A review of the first

video file for this buy begins with a short introductory statement by Det. Ellis, reflecting

the date and time, and that the buy was for $50 of cocaine from Appellant at his residence

in Steubenville. The remainder of this file shows the two confidential informants driving

to Appellant’s apartment building. The second video file begins with the informants exiting

their vehicle and standing outside of it awaiting Appellant. The number “730” can clearly

be seen on the side of the building, which confirms Appellant’s address of 730 North

Seventh Street in Steubenville. The next six minutes of video is silent and the camera is

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stationary and pointed skyward. At approximately six and half minutes into this video file,

Appellant is seen arriving in a burgundy SUV, similar to the vehicle in the video and

photographs from the June 14th buy. The informants approach Appellant, who

acknowledges them briefly, and both informants follow Appellant into the building lobby.

At this point, however, Confidential Informant #1 states that he is going to see his mother,

who apparently lives in the building. As they reach the elevator, Appellant says what

sounds like, “Are you going to tell her your problems?” Informant #1 responds, “What?”

Appellant says, “Go visit your mom.” Appellant and Informant #2 enter the elevator. The

rest of the video consists of Informant #1 walking through the halls, briefly visiting his

mother’s apartment and saying to her, “I’m doing something. I’ll tell you about it later.”

Informant #1 then waits in the hall near the elevator. Appellant and Informant #2 exit the

elevator shortly after, and this concludes the second video file. The third video file reveals

the two informants back in their vehicle and driving to the predetermined location to meet

with Det. Ellis. During the drive, both informants discuss their concern about not capturing

the buy on video. Informant #2 places a call to Det. Ellis telling him that Informant #1 did

not take part in the buy and asking if it is a problem that the buy was not captured on

video. In the final ten seconds, the informants both exit the vehicle after apparently

arriving to meet Det. Ellis.

{¶4} Later in the day, Det. Ellis drafted an affidavit in support of a search warrant

for Appellant’s residence. In his affidavit, Det. Ellis cites, among other information, the

following as probable cause for the warrant:

4. Confidential informant #1 was fitted with an electronic audio and video

recording device and provided with prerecorded funds.

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5. The confidential informants drove to 730 North Seventh Street in

Steubenville, Ohio and parked their vehicle. A short time later Yetts arrived

at 730 North Seventh Street driving a maroon Ford Expedition. Yetts exited

the vehicle and met with both confidential informants. Both confidential

informants and Yetts entered 730 North Seventh Street. Confidential

informant #2 and Yetts entered the elevator and went to the second floor of

the apartment building. Confidential informant #2 and Yetts exited the

elevator and entered apartment 212. While inside apartment 212, Yetts

sold confidential informant #2 crack cocaine in exchange for the

prerecorded currency. Following the drug transaction between Yetts and

confidential informant #2 both exited apartment 212 and proceeded to the

first floor of the apartment building and exited the building. Both confidential

informants met with detectives at a prearranged location. There confidential

informant #1 provided a detective with the purchased crack cocaine.

(State’s Exh. 1.)

{¶5} The trial court issued the search warrant and it was executed that same

day. During the search of the apartment, the officers seized two firearms which had both

been reported stolen, approximately 53 grams of cocaine, a digital scale, and a piece of

mail addressed to Appellant at that residence.

{¶6} On September 13, 2017, a Jefferson County Grand Jury returned a seven

count indictment against Appellant. Count 1 was for possession of cocaine, a fifth degree

felony in violation of R.C. 2925.11(A) and (C)(4)(a). Count 2 was for trafficking in cocaine,

a fifth degree felony in violation of R.C. 2925.03(A) and (C)(4)(a). Both counts 1 and 2

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relate to the June 14th buy. Count 3 was for possession of cocaine, a fifth degree felony

in violation of R.C. 2925.11(A) and (C)(4)(a). Count 4 was for trafficking in cocaine, a fifth

degree felony in violation of R.C. 2925.03(A) and (C)(4)(a). Both counts 3 and 4 relate to

the July 20th buy. Count 5 charged possession of cocaine in an amount that equals or

exceeds 27 grams in violation R.C. 2925.11(A) and (C)(4)(e), a first degree felony. This

corresponds to the cocaine seized from Appellant’s apartment. Count 6 was for violating

R.C. 2923.13(A)(3), having weapons while under disability as a result of a previous drug

violation, a third degree felony. This was due to the two guns seized from Appellant’s

residence during the search. Count 7 was for receiving stolen property, a third degree

felony in violation of R.C. 2913.51(A) because the seized guns were reported stolen.

{¶7} On January 19, 2018, an amended and superseding indicted was returned

against Appellant which added a forfeiture specification to count 2, seeking forfeiture of

Appellant’s vehicle used during the June 14th buy.

{¶8} Appellant filed a motion to suppress on January 4, 2018 in which he sought

to bar from trial all evidence obtained as a result of execution of the search warrant. He

did not directly attack the confidential informants’ veracity. Instead, he contended that

the state lacked probable cause for the warrant because there was no independent

corroboration of the statements made by the confidential informants in regard to the buys.

A hearing on the motion was held January 16, 2018. Det. Ellis was the only witness to

testify at the suppression hearing. He outlined the protocol for controlled buys and

discussed to what degree that protocol was followed in making the two buys in Appellant’s

case. No other witnesses testified. Importantly, Appellant never requested to have the

identity of the confidential informants made known, nor did he file a motion seeking to

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have them testify at the suppression hearing. The trial court issued a judgment entry on

January 23, 2018, overruling the motion to suppress and concluding that the search was

valid.

{¶9} The matter was set for a jury trial on January 23, 2018. The day before trial

was to commence, at a pretrial hearing, Appellant requested that his appointed counsel

be removed and new counsel be appointed. The state objected to the request. A lengthy

colloquy occurred concerning Appellant’s last minute request for new counsel. Appellant

stated that he did not like the way counsel was handling his case. He explained that in

his view, the text records from his cell phone were necessary to support his defense. As

his phone had been seized during the search, he asked counsel to retrieve the records

from the telephone company. Counsel had not done as Appellant requested. (1/22/18

Tr., p. 5.) The trial court informed Appellant that new counsel would not be appointed so

close to trial. Appellant then made the request to represent himself. (1/22/18 Tr., p. 9.)

The trial court discussed at length the problems and issues surrounding self-

representation and indicated that it was not inclined to grant Appellant’s request.

Ultimately, the court admonished Appellant to think about it overnight, and told Appellant

that if he still wished to represent himself he would be required to sign a waiver. (1/22/18

Tr., p. 12.)

{¶10} The record reflects that the following morning, the trial court again engaged

in a discussion about the dangers of self-representation. Appellant insisted on

representing himself. While the trial court cautioned against it, Appellant persisted and

executed a written waiver. The trial court ultimately granted Appellant’s request and

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ordered defense counsel to remain in the courtroom as stand-by counsel, as needed.

(1/23/18 Tr., p. 9.)

{¶11} The matter proceeded to trial that day. The jury found Appellant guilty on

all counts. On January 29, 2018 a sentencing hearing was held. Appellant was

sentenced to one year in prison each for counts 1, 2, 3, 4 and 7. He was sentenced to a

term of eight years on count 5 and three years on count 6. The sentences on counts 5

and 6 were ordered to be served consecutively. The sentences for counts 1, 2, 3, 4 and

7 were ordered to be served concurrently to the other sentences for a total stated prison

term of eleven years. Appellant filed this timely appeal.

ASSIGNMENT OF ERROR NO. 1

THE JURY VERDICT OF GUILTY TO ALL COUNTS OF THE

INDICTMENT WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

{¶12} Weight of the evidence concerns “the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.”

(Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

“Weight is not a question of mathematics, but depends on its effect in inducing belief.”

(Emphasis deleted.) Id.

{¶13} When reviewing a manifest weight of the evidence argument, a reviewing

court must examine the entire record, consider the credibility of the witnesses and

determine whether, in resolving conflicts in the evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered. Id. at 387, 389. Only in exceptional circumstances will a conviction

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be reversed as against the manifest weight of the evidence. Id. This strict test for

manifest weight acknowledges that credibility is generally the province of the factfinder

who sits in the best position to accurately assess the credibility of the witnesses. State v.

Hill, 75 Ohio St.3d 195, 204, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d

230, 231, 227 N.E.2d 212 (1967).

{¶14} Appellant argues his convictions are against the manifest weight of the

evidence due to the state’s failure to present evidence establishing all of the elements of

his charged crimes. He contends the trial court erred in accepting the verdict of the jury

as there was “no audio, video or photographic evidence that identified [Appellant]

possessing and trafficking crack cocaine to anyone.” Since the informants did not testify

at trial, Appellant argues that there was no “chain of custody linkage” from Appellant to

the drug task force. (Appellant’s Brief, p. 7.)

{¶15} Appellant’s manifest weight argument is based solely on issues surrounding

the confidential informants. Appellant asserts that at trial the state failed to demonstrate

a link between Appellant and the charged offenses because it failed to provide testimony

from the confidential informants. Appellant urges this was necessary largely because the

informants failed to capture Appellant on audio or video making a sale of drugs during

one of the controlled buys. An examination of the manifest weight of the evidence

requires an examination of the evidence presented at trial. Thompkins, at 387, 389.

However, in a case such as this where Appellant challenged the validity of the search

warrant by filing a motion to suppress, the issue of the use of confidential informants to

procure the warrant was required to be addressed at the time Appellant sought to

suppress the evidence. State v. Truax, 7th Dist. No. 06 BE 66, 2007-Ohio-4993, ¶ 16;

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Crim.R. 12(C)(3). While the basis for procuring the warrant was the controlled buys,

neither confidential informant was present at the suppression hearing. Despite the fact

that Appellant was aware two confidential informants had been utilized to conduct both

controlled buys, Appellant never filed a motion seeking disclosure of the informants’

identity or seeking to have them present to testify at the suppression hearing.

{¶16} In Appellant’s motion to suppress he argued that the search lacked probable

cause because it “does not exist absent independent corroboration of the statements

attributed to an unnamed ‘confidential informants.’ ” (Motion to Suppress, p. 2.) Appellant

contended that in order to ascertain whether the affidavit seeking the warrant was

sufficiently supported, the trial court must rely on the veracity of the two informants. He

claimed that the search warrant was not issued as “the result of information provided by

the confidential informant but as a result of unsubstantiated police activity.” (Motion to

Suppress, p. 3.) In essence, Appellant contended that the informants had no independent

knowledge of Appellant’s drug activity. Instead, the police, who had been targeting

Appellant for some time, had coached the informants. (Motion to Suppress, p. 4.) Hence,

while Appellant’s motion was based entirely on a theory that could only be proved or

disproved by testimony from the informants, at no time did Appellant request their identity

be disclosed or that they be brought to testify.

{¶17} A motion for court ordered relief, “shall state with particularity the grounds

upon which it is made and shall set forth the relief or order sought.” Crim.R. 47. At a

suppression hearing, the state’s burden of proof “is limited to those contentions that are

asserted with sufficient particularity to place the prosecutor and court on notice of the

issues to be decided.” State v. Diaz, 5th Dist. No. 2016 CA 00113, 2017-Ohio-262, ¶ 23,

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citing City of Xenia v. Wallace, 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988). Thus,

the burden was on Appellant at the suppression hearing to articulate the issues to be

decided, including the link between the confidential informants and the search warrant,

and to take all necessary steps to support these issues with proof. Pursuant to Appellant’s

suppression motion, the issue to be addressed by the state and the court was whether

the confidential informants actually had independent information regarding Appellant’s

drug activity or whether they were essentially props used by the police who obtained all

of their relevant information from other, impliedly improper, police activity. (Motion to

Suppress, p. 3.) In attacking the validity of the search warrant in this manner, Appellant

was required to request that the identity of the confidential informants be disclosed and

to cross-examine them regarding the controlled buys in order to prove or disprove his

claims. No such motion seeking the disclosure of the confidential informants was ever

filed. Appellant relied solely on attacking the testimony of Det. Ellis at the suppression

hearing, instead.

{¶18} The general rule in Ohio regarding disclosure of a confidential informant’s

identity is “that the identity of an informant must be revealed to a criminal defendant when

the testimony * * * is vital to establishing an element of the crime or would be helpful or

beneficial to the accused in preparing or making a defense to criminal charges.” State v.

Williams, 4 Ohio St.3d 74, 77, 446 N.E.2d 779 (1983).

{¶19} This Court held in State v. Kelley, 179 Ohio App.3d 666, 2008-Ohio-6598,

903 N.E.2d 365 (7th Dist.2008), that the trial court did not err in failing to reveal the identity

of a confidential informant because the informant’s statement was not vital to establishing

an element of the case and that the identity of the informant was not helpful in assisting

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in preparation for trial, as the defense counsel requested the identity only after trial was

to begin. Id. at ¶ 8. In Kelley, the defendant did not file a motion to suppress and did not

seek the disclosure of the confidential informant until the day of trial. Id.

{¶20} At the suppression hearing in this matter, Det. Ellis testified regarding the

protocol for buys, including recording the telephone call made to arrange the buy,

supplying “marked” money, and having confidential informants wired to obtain audio and

visual recordings. He testified that the protocol was followed for the June 14th buy and

that he took photographs of the parking lot buy from across the street. (1/16/18 Tr., pp.

7-8.) He testified that he personally observed Appellant in his vehicle and selling the

cocaine to the informants. (1/16/18 Tr., pp. 7-8.) At the conclusion of this buy, Det. Ellis

testified that he met the informants at a separate location, who turned over the drugs

purchased from Appellant.

{¶21} Det. Ellis also testified regarding the second buy on July 20th. He noted that

initially the protocol was followed. (1/16/18 Tr., p. 10.) He admitted, however, that

Confidential Informant #2, who was not wearing video or audio equipment, went up to

Appellant’s apartment and purchased $50 worth of cocaine. The informant who was

wired did not participate in the actual buy. Det. Ellis met the informants at a separate

location after the transaction concluded, where they turned over the drugs they said they

purchased from Appellant. (1/16/18 Tr., p. 11.) Det. Ellis testified that based on the

results of the buys, he prepared an affidavit to obtain a search warrant for Appellant’s

apartment. While his application seeking the search warrant was spurred by the July 20th

buy, (1/16/18 Tr., p. 12), Det. Ellis testified that he

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provided [the judge] information of both controlled purchases, who it was

from, how the controlled purchase went down and I gave him a background

on the confidential informants, that they were -- were reliable and had

worked with me in the past.

(1/16/18 Tr., p. 13.)

{¶22} On cross-examination, Det. Ellis confirmed that his basis for seeking the

search warrant was the July 20th buy. (1/16/18 Tr., p. 15.) He also testified that the

second transaction was not recorded and that he did not maintain visual contact with the

confidential informants once they entered Appellant’s apartment building. (1/16/18 Tr., p.

16.) Det. Ellis testified that after the buy, he retrieved the contraband from the informants

at a separate location where they informed him that Confidential Informant #2 had

purchased the drugs from Appellant. (1/16/18 Tr., p. 18.) The following exchange also

occurred on cross-examination:

[APPELLANT’S COUNSEL]: Well, what’s the relationship between the two

confidential informants?

[DET. ELLIS]: I’m sorry?

THE COURT: Go ahead. You can ask him. We’re not going to get too

particular to the point where it might identify somebody.

APPELLANT’S COUNSEL]: Right and I don’t want that.

(1/16/18 Tr., pp. 18-19.)

{¶23} It is apparent from this exchange that Appellant’s counsel did not seek to

have the identity of the confidential informants disclosed and, in fact, was careful not to

do so while cross-examining Det. Ellis even though the purpose of the suppression motion

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was to contest the validity of the search warrant and even though Appellant’s theory was

based on information only the informants could provide.

{¶24} Appellant now argues that his convictions are against the manifest weight

of the evidence because the state failed at trial to provide testimony from the confidential

informants and failed to present photographic evidence of the buys. Because he failed

to timely raise this issue of the identity of the informants to the trial court, Appellant has

forfeited the right to raise the issue on appeal. State v. Schindler, 70 Ohio St.3d 54, 58,

636 N.E.2d 319 (1994). Appellant has waived this issue, and any argument regarding

validity of the search warrant based on the information provided by Det. Ellis regarding

the controlled buys is also waived. The search undertaken pursuant to the warrant

yielded the drugs and firearms found in Appellant’s apartment. That contraband, taken

in conjunction with the controlled buys, led to the charges and subsequent convictions of

Appellant.

{¶25} Appellant was charged with trafficking, a violation of R.C. 2925.03(A) and

(C)(4)(a). This requires proof that Appellant knowingly sold or offered to sell a controlled

substance, in this case, cocaine. Possession, in violation of R.C. 2925.11(A) and

(C)(4)(a), requires proof that Appellant obtained, possessed or used a controlled

substance. Again, in this case the substance was cocaine in an amount over 27 grams,

a first degree felony. Having weapons while under disability in violation of R.C. 2923.13,

requires proof that Appellant acquired, had, carried or used any firearm or dangerous

ordnance after conviction on a prior felony drug offense. Finally, Appellant was charged

with receiving stolen property, a violation of R.C. 2913.51(A). This required the state to

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prove that Appellant received, retained or disposed of the property of another while

knowing or having reasonable cause to believe that the property was stolen.

{¶26} At trial, the state presented the testimony of Det. Ellis and of Detective

Christopher Vinci, another drug task force detective who assisted in executing the search

warrant. Det. Ellis testified about the manner in which the controlled buys were conducted

and the details of how the June 14th and July 20th buys occurred. He testified that after

the completion of both buys, drugs were recovered from the informants, who said they

purchased the drugs from Appellant. A search warrant was obtained which led to the

seizure of additional drugs and firearms from Appellant’s residence. Det. Ellis also

testified that the substance seized from Appellant’s apartment tested positive for cocaine

in a field test and that BCI confirmed, after additional testing, that the substance was

cocaine.

{¶27} The tapes of the phone calls setting up the buys and the videos from the

confidential informants of the two buys were played for the jury. As noted above, the

videos do not reveal the details of the transactions, so Det. Ellis testified about what was

occurring throughout the tapes, including when the informants arrived at the location, how

the building was identified as Appellant’s residence, and the manner in which Appellant’s

vehicle was identified.

{¶28} Det. Vinci testified about the execution of the search warrant and described

where the firearms were found. (1/23/18 Tr., p. 114.) He testified that a check on the

firearms was run through a national database. This revealed that both firearms had been

reported stolen. The state offered the reports about the firearms into evidence.

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{¶29} The testimony of the two detectives regarding the controlled buys, the

recording of the telephone calls and videos, and the drugs and firearms seized from

Appellant’s apartment all support the conclusion that Appellant possessed and was

trafficking in cocaine and that he had stolen firearms in his possession. A copy of

Appellant’s prior felony convictions was also presented, which supports his possession

of firearms while under a disability.

{¶30} Based upon the evidence in the record, each element of each offense was

proven at trial. We cannot conclude that Appellant’s convictions were against the

manifest weight of the evidence. Appellant’s first assignment of error is without merit and

is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

SENTENCING THE DEFENDANT TO ELEVEN (11) YEARS IN PRISON.

{¶31} In his second assignment of error, Appellant contends the trial court erred

in sentencing him to eleven years in prison. Pursuant to State v. Marcum, 146 Ohio St.3d

516, an appellate court is permitted to review a felony sentence to determine if it is

contrary to law. Further, “an appellate court may vacate or modify any sentence that is

not clearly and convincingly contrary to law only if the appellate court finds by clear and

convincing evidence that the record does not support the sentence.” Id.

{¶32} At the sentencing hearing on January 29, 2018, the trial court stated that it

considered the principles and purposes of sentencing set forth in R.C. 2929.11, including

the purpose of protecting the public from future crime by the offender and of punishing

the offender. The trial court also stated it considered factors regarding the seriousness

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of the offense and the likelihood of recidivism pursuant to R.C. 2929.12(B), (C), (D) and

(E). The court noted that Appellant was subject to a mandatory prison term for the first

degree felony.

{¶33} The court merged counts 1 and 2 and counts 3 and 4 for sentencing

purposes. Counts 6 and 7 also merged for sentencing as they were related to the firearms

recovered.

{¶34} Regarding consecutive sentencing, the trial court noted both at the

sentencing hearing and in the judgment entry of sentence that consecutive sentences

were not disproportionate to the seriousness of Appellant’s conduct, addressed the

danger Appellant poses to the public, and that the court sought to protect the public from

future crime. (1/29/18 Tr., p. 11.); (2/5/18 J.E.).

{¶35} According to R.C. 2929.14(C)(4), a trial court may impose consecutive

sentences if the court makes three statutory findings:

[T]hat the consecutive service is necessary to protect the public from future

crime or to punish the offender and that consecutive sentences are not

disproportionate to the seriousness of the offender's conduct and to the

danger the offender poses to the public, and if the court also finds any of

the following:

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release control for a prior offense.

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(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶36} Although the trial court initially indicated at the sentencing hearing that

consecutive sentencing findings were not necessary because “that only kicks in when you

exceed the maximum term of the biggest offense which we’ve not done,” and noted

“[y]ou’re probably the nicest guy I ever sent to prison but you keep doing bad things,” the

court ultimately sentenced Appellant to consecutive sentences. (1/29/18 Tr., p. 11.)

While the trial court did not mention R.C. 2929.14(C) specifically at the hearing, the court

found that Appellant had a prior criminal history, that consecutive sentences were not

disproportionate to the seriousness of Appellant’s conduct, and that Appellant posed a

danger to the public and consecutive sentences were necessary to protect the public from

future crime. (1/29/18 Tr., p. 11.) Taken as a whole, this record shows that the court

made the necessary findings even though not using the direct statutory language, at the

hearing. The trial court must make the requisite findings regarding consecutive

sentencing at the sentencing hearing and incorporate those findings into the sentencing

entry. State v. Williams, 7th Dist. No. 13 MA 125, 2015-Ohio-4100, 43 N.E.3d 797, ¶ 33-

34, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.

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The trial court here already made the required consecutive sentencing findings in the

written judgment entry, also.

{¶37} Appellant’s second assignment of error lacks merit and is overruled.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

PERMITTING THE STATE TO PRESENT THE DEFENDANT'S PLEA

OFFER LETTER TO THE JURY.

{¶38} In his third assignment of error Appellant contends the trial court erred in

allowing the state to present to the jury the letter he wrote concerning a plea. Pursuant

to Evid.R. 410, any statements made in the course of plea discussions should not be

admissible. The Ohio Supreme Court has held that in order to seek protection under

Evid.R. 410, a defendant is required to have a subjective expectation at the time the

statements were made that a plea was being negotiated. State v. Frazier, 73 Ohio St.3d

323, 652 N.E.2d 1000 (1995), syllabus. That expectation is required to be “reasonable

under the circumstances.” Id. Evid.R. 410 is not implicated when the disputed statements

were provided to the state by the accused or his attorney. State v. Jeffries, 119 Ohio

St.3d 265, 2008-Ohio-3865, 893 N.E.2d 487, ¶ 9.

{¶39} As noted by the state, Evid.R. 410 does not provide protection where, as

here, Appellant drafted a letter to a prosecutor who was not assigned to his case, and

offered his own plea deal when no plea negotiations were being undertaken. The state

also noted that there was no response offered to Appellant’s letter because there were

no ongoing plea negotiations. Appellant testified at trial that he did not draft the letter in

question and that he did not tell the drafter what to write, but that he had signed the letter.

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 – 20 –

(1/23/18, Tr., p. 158.) This record reflects that Appellant could not have possessed a

reasonable subjective expectation that a plea was being negotiated in this matter. Hence,

his letter offering to accept a plea was not subject to protection from being used as

evidence against him.

{¶40} Appellant’s third assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING

TO APPOINT TRIAL COUNSEL FOR THE DEFENDANT.

{¶41} In his fourth assignment of error, Appellant contends the trial court erred in

refusing to appoint new trial counsel. Appellant had been represented by counsel

throughout the proceedings until the day before trial when he requested new counsel.

{¶42} An indigent defendant’s right to counsel does not extend to an ability to

select the counsel of defendant’s choice and does not require that the appointed counsel

develop “a meaningful relationship” with the defendant. State v. Blankenship, 102 Ohio

App.3d 534, 558, 657 N.E.2d 559 (12th Dist.1995). Relevant grounds for determining

when new counsel should be appointed exist only after “a showing of good cause, such

as a conflict of interest, a complete breakdown in communication, or an irreconcilable

conflict which leads to an apparently unjust result.” Id., citing State v. Pruitt, 18 Ohio

App.3d 50, 57, 480 N.E.2d 499 (1984). The defendant bears the burden to demonstrate

that new counsel is required. If the defendant alleges facts which, if true, would require

relief and the appointment of new counsel, the trial court must inquire into the defendant’s

complaint and make that inquiry part of the record. State v. Deal, 17 Ohio St.2d 17, 20,

244 N.E.2d 742 (1969).

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{¶43} In the instant matter, the transcripts of the proceedings both on the day

before trial was set to commence and the morning of trial contain extensive dialogue

between Appellant and the trial court regarding Appellant’s request for new counsel or to

self-represent. Appellant first contended that he needed new counsel because he sought

to obtain text records from his phone and had communicated that request to counsel to

no avail. Defense counsel denied that he and Appellant had any disagreement that would

impact representation. Appellant subsequently demurred and indicated that while he did

not have any real issue with counsel’s representation of him, he simply wanted new

counsel. Appellant ultimately stated: “I have everything right here” to move forward, and

requested that he be allowed to represent himself. (1/22/18 Tr., p. 11.)

{¶44} The trial court had the duty to inquire on the record as to Appellant’s

concerns. Vague or general objections do not trigger a duty to investigate further. Deal,

at 19. This record reveals the trial court inquired as to Appellant’s decision to seek new

counsel and a lengthy discussion was had on the record as to exactly why Appellant

thought he needed new counsel. Appellant’s stated concern about his telephone records

was quickly dispensed with and Appellant admitted he simply desired new counsel or, in

the alternative, he desired to represent himself. Such vague assertions one day before

trial do not trigger the kind of concerns regarding representation set forth in Pruitt, supra.

The decision to appoint new trial counsel rests within the sound discretion of the trial

judge. State v. Dukes, 34 Ohio App.3d 263, 265, 518 N.E.2d 28 (8th Dist.1986). The

facts in the instant case indicate the trial court properly inquired into Appellant’s last

minute request for new counsel. Appellant did not adequately demonstrate why new

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counsel should be appointed. We conclude the trial court did not abuse its discretion in

failing to appoint new trial counsel one day prior to trial.

{¶45} While Appellant does not raise error in the trial court granting his request to

represent himself, this record does not reflect error in this regard. Once the trial court

made it clear that no new counsel would be appointed on the eve of trial, Appellant then

demanded his right to self-representation. The trial court fully apprised Appellant of the

pitfalls involved in such an endeavor and engaged in a dialogue to determine whether

Appellant fully understood what he was undertaking. Appellant was allowed a day to

reflect and consider. The trial court’s decision to grant Appellant’s request is supported

in the record, here.

{¶46} Appellant’s fourth assignment of error is without merit and is overruled.

Conclusion

{¶47} Based on the foregoing, Appellant’s first assignment of error contending his

convictions were against the manifest weight of the evidence is without merit, as the state

presented evidence that, if believed, supports his convictions. Appellant’s second

assignment of error regarding sentencing lacks merit, as the record demonstrates the trial

court conducted an analysis of the factors relative to consecutive sentencing at the

sentencing hearing and in the judgment entry of sentence. Appellant’s third assignment

of error regarding the admission of his letter into evidence is without merit because the

letter did not run contrary to the prohibition found in Evid.R. 410. There were no ongoing

plea negotiations and it was not reasonable under the circumstances for Appellant to

believe a plea negotiation was occurring. Appellant’s fourth assignment of error regarding

the trial court’s failure to appoint new counsel one day prior to trial is without merit, as a

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review of the record reflects the trial court inquired extensively into Appellant’s request

for new counsel and found no conflict existed which would warrant new counsel one day

prior to trial. Appellant’s convictions are upheld and the judgment of the trial court is

affirmed.

Donofrio, J., concurs.

D’Apolito, J., concurs.

Case No. 18 JE 0004
[Cite as State v. Yetts, 2019-Ohio-1203.]

For the reasons stated in the Opinion rendered herein, the assignments of error

are overruled and it is the final judgment and order of this Court that the judgment of

the Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

a certified copy be sent by the clerk to the trial court to carry this judgment into

execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.