State v. Nicholson

[Cite as State v. Nicholson, 2021-Ohio-1300.]

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 109570
v. :

JAHMAL E. NICHOLSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 15, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-641262-A and CR-19-642410-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Eben O. McNair, Assistant Prosecuting
Attorney, for appellee.

John T. Forristal, for appellant.

EMANUELLA D. GROVES, J.:

Defendant-appellant, Jahmal Nicholson (“Nicholson”), appeals the

trial court’s denial of his oral motion to appoint new counsel and contends his

subsequent pleas were in violation of Crim.R. 11(C)(2)(c). For the reasons set forth

below, we affirm.
 Procedural and Factual History

In June 2019, a grand jury indicted Nicholson, in Cuyahoga C.P. No.

CR-19-641262-A, for one count each of having a weapon while under disability,

improperly handling a firearm in a vehicle, carrying a concealed weapon, drug

trafficking, drug possession, and possessing criminal tools. Separately, in Cuyahoga

C.P. No. CR-19-642410-A, the grand jury indicted Nicholson for one count of drug

possession. Nicholson pled not guilty at the arraignment and after several pretrials

were conducted, the trial court scheduled a jury trial for November 6, 2019.

On the date of trial, immediately after the state’s plea offer was placed

on the record, Nicholson orally motioned the trial court to remove his counsel,

stating:

I would like to ask if I can move the Court to remove my attorney and
seek counsel, because due to the fact that, um, I never received any facts
of the case or heard any facts of the case or went over any of the facts of
the case until yesterday. That’s the day before trial. Our trial date was
set for today, which was November 6th.

I sat down for the first time with my attorney yesterday for the first time
to go over all the facts of the case. No time before yesterday was I ever
called into the office or sat down and [sic] with my attorney and went
over any facts or discovery of the case.

And I would like to have a better representation due to dealing with
some - - the matter in [sic] serious, your Honor.

Tr. 8-9.

The trial court denied Nicholson’s motion and stated:

Today is the trial date. Miss Newman is an experienced, talented
lawyer. She has represented you. She’s appeared at numerous
pretrials, discussed the case with the prosecutors. And she will go
forward with the trial today if that’s what you would like to do.
 The trial court then asked Nicholson if he would like to proceed to trial

or accept the state’s plea offer. Nicholson opted to proceed to trial. Prior to

summoning the jury, the trial court held a hearing on a suppression motion. Within

minutes of the hearing, while the arresting officer was testifying, defense counsel

advised the trial court that Nicholson wanted to accept the state’s plea offer.

Thereafter, Nicholson pled guilty to having weapons while under

disability and drug possession in CR-19-641262-A, and to drug possession in CR-19-

642410-A. The state dismissed the remaining charges. On December 12, 2019, the

trial court sentenced Nicholson to 24 months in prison.

Nicholson now appeals, assigning the following two errors for review:

Assignment of Error One

The trial court violated Mr. Nicholson’s right to counsel guaranteed by
the Sixth Amendment of the U.S. Constitution and Article I, Section 10
of the Ohio Constitution when it failed to conduct an evidentiary
hearing on Mr. Nicholson’s oral motion to appoint new counsel.

Assignment of Error Two

The trial court failed to comply with the requirements of Crim.R.
11(C)(2)(c) when it accepted Mr. Nicholson’s guilty plea.

Law and Analysis

In the first assignment of error, Nicholson contends that the trial court

denied him his Sixth Amendment right to counsel, when it refused to appoint new

counsel.

Appellate courts review a trial court’s decision whether to remove

court-appointed counsel for an abuse of discretion. State v. Pendergrass, 8th Dist.
Cuyahoga No. 104332, 2017-Ohio-2752, ¶ 15, citing State v. Patterson, 8th Dist.

Cuyahoga No. 100086, 2014-Ohio-1621, ¶ 19. An abuse of discretion implies that

the court’s decision was unreasonable, arbitrary or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

If the motion for new counsel was timely, the trial court is required to

determine “whether there had been a complete breakdown in communication

between the defendant and his counsel.” State v. Robinson, 8th Dist. Cuyahoga No.

106329, 2018-Ohio-2403, citing State v. Summerlin, 1st Dist. Hamilton No. C-

160539, 2017-Ohio-7625, ¶ 9, citing State v. Clark, 1st Dist. Hamilton No. C-

020550, 2003-Ohio-2669, ¶ 7; State v. Murphy, 91 Ohio St.3d 516, 2001-Ohio-112,

747 N.E.2d 765; State v. Gordon, 149 Ohio App.3d 237, 2002-Ohio-2761, 776

N.E.2d 1135, ¶ 13 (1st Dist.).

When timing is an issue, the trial court may determine whether the

defendant’s request for new counsel was made in bad faith. Id. at ¶ 10, citing

Pendergrass at ¶ 15, citing State v. Price, 8th Dist. Cuyahoga No. 100981, 2015-

Ohio-411, ¶ 18, and State v. Graves, 9th Dist. Lorain No. 98CA007029, 1999 Ohio

App. LEXIS 5992 (Dec. 15, 1999). There is a presumption of bad faith that must be

overcome if the request for new counsel is made on the day of trial. Price at ¶ 18,

and State v. Haberek, 47 Ohio App.3d 35, 41, 546 N.E.2d 1361 (8th Dist.1988).

In the instant case, Nicholson suggests that the trial court summarily

denied his motion without consideration. However, contrary to Nicholson’s

suggestion, it has been held that the court’s inquiry into a motion to appoint new
counsel may be brief and minimal, and still safeguard the offender’s constitutional

rights. State v. Robinson, 8th Dist. Cuyahoga No. 105667, 2018-Ohio-285, citing

Pendergrass, 8th Dist. Cuyahoga No. 104332, 2017-Ohio-2752, at ¶ 11, citing

State v. King, 104 Ohio App.3d 434, 437, 662 N.E.2d 389 (4th Dist.1995).

Here, although, there is no requirement that the trial court undergo a

formal or lengthy proceeding every time a defendant requests new, appointed

counsel, the record indicates that the trial court considered the request. The trial

court noted that Nicholson’s motion was being made on the day of trial. As

discussed above, there is a presumption of bad faith that must be overcome if the

request for new counsel is made on the day of trial.

The trial court also noted that Nicholson’s defense counsel was an

experienced and talented attorney, who had been representing him in the matter.

In addition, the trial court noted that the attorney had appeared on Nicholson’s

behalf at numerous pretrials, where she met and discussed the case with the

prosecutor. Further, our review of the docket reveals that Nicholson was out on

bond, that his attorney appeared for no less than eight pretrials, and that Nicholson

requested several continuances in this matter. Finally, we note, the record

demonstrates that defense counsel had thoroughly investigated the case and was

prepared to argue the motion to suppress and was prepared to go to trial.

Under these circumstances, where the request was neither timely nor

supported by good cause, and where the record indicates that the trial court

considered the request, we find no abuse of discretion.
 Accordingly, we overrule the first assignment of error.

In the second assignment of error, Nicholson argues that the trial

court failed to comply with Crim.R. 11(C)(2)(c) when it accepted his pleas.

Due process requires that a defendant’s plea be made knowingly,

intelligently, and voluntarily; otherwise, the defendant’s plea is invalid. State v.

Bishop, 156 Ohio St.3d 156, 2018-Ohio-5132, 124 N.E.3d 766, ¶ 10, citing State v.

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25; see also State v.

Engle, 74 Ohio St.3d 525, 527, 1996-Ohio 179, 660 N.E.2d 450 (“When a defendant

enters a plea in a criminal case, the plea must be made knowingly, intelligently, and

voluntarily. Failure on any of those points renders enforcement of the plea

unconstitutional under both the United States Constitution and the Ohio

Constitution.”).

The purpose of Crim.R. 11(C) is to provide the defendant with relevant

information so that he can make a voluntary and intelligent decision whether to

plead guilty. State v. Ballard, 66 Ohio St.2d 473, 480, 423 N.E.2d 115 (1981). Before

accepting a guilty plea in a felony case, a court must comply with Crim.R. 11(C) and

“conduct an oral dialogue with the defendant to determine that the plea is voluntary,

and the defendant understands the nature of the charges and the maximum penalty

involved, and to personally inform the defendant of the constitutional guarantees he

is waiving by entering a guilty plea.” State v. Martin, 8th Dist. Cuyahoga Nos. 92600

and 92601, 2010-Ohio-244, ¶ 5.
 A trial court must strictly comply with the Crim.R. 11(C)(2)(c)

requirements that relate to the waiver of constitutional rights. State v. Veney, 120

Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. With respect to the

nonconstitutional requirements of Crim.R. 11, set forth in Crim.R. 11(C)(2)(a) and

(b), reviewing courts consider whether there was substantial compliance with the

rule. State v. Hill, 8th Dist. Cuyahoga No. 106542, 2018-Ohio-4327, ¶ 8, citing

Veney at ¶ 14-17. “Substantial compliance means that under the totality of the

circumstances the defendant subjectively understands the implications of his plea

and the rights he is waiving.” Hill at ¶ 8, quoting State v. Nero, 56 Ohio St.3d 106,

108, 564 N.E.2d 474 (1990). Additionally, before a plea will be vacated, due to a

violation of the defendant’s nonconstitutional rights, the defendant must show

prejudice. Martin at ¶ 7. “The test for prejudice is whether the plea would have

otherwise been made.” Id., citing Veney at ¶ 17.

Prior to accepting Nicholson’s pleas, the following exchange took

place:

THE COURT: So, Mr. Nicholson, I’m going to ask you a series of
questions. If you would be kind enough to answer out loud so that the
court reporter can take down what you have to say, all right, sir?

THE DEFENDANT: Yes, your Honor.

THE COURT: How old are you?

THE DEFENDANT: 32, your Honor.

THE COURT: How far did you go in school?

THE DEFENDANT: Tenth grade.
THE COURT: Are you now under the influence of any drug or alcohol?

THE DEFENDANT: No, your Honor.

THE COURT: Are you an American citizen?

THE DEFENDANT: Yes, your Honor.

THE COURT: Are you on Probation, Community Controlled sanctions,
Parole, or Post Release Control?

THE DEFENDANT: No, your Honor.

THE COURT: Are you satisfied with the representation of

Ms. Newman?

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you understand that by entering a plea of guilty
you’re giving up certain constitutional rights?

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you understand you have a right to a trial by jury, or
you can waive that right and try your case to a judge without a jury?
Sir, do you understand that?

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you understand you have a right to an attorney,
either one you hired yourself, or if you can’t afford one, one the Court
appoints for you at no cost to you?

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you understand you have a right to subpoena
witnesses to appear at trial and testify in your behalf? And that means
if you wanted a witness to come in and testify for you, but they wouldn’t
come in voluntarily, you could use the Court’s subpoena power to make
them come in and testify.

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you understand you have the right to have the State
 of Ohio prove your guilt by evidence beyond a reasonable doubt?

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you understand you have the right to confront and
cross-examine witnesses?

THE DEFENDANT: Yes, your Honor.

THE COURT: Do you understand you have the right to remain silent
and not testify, and no one could comment on the fact that you did not
testify at trial?

THE DEFENDANT: Yes, your Honor.

Tr. 19-22.

The trial court’s colloquy, cited above, satisfies the rigors of Crim.R.

11(C)(2). The trial court advised Nicholson that he was waiving certain

constitutional rights by entering his pleas. Nicholson stated he understood. The

trial court then proceeded to go over each constitutional right in a clear and concise

manner ─ stopping each time to ask Nicholson if he understood. At every juncture,

Nicholson unequivocally stated that he understood. Nonetheless, Nicholson

suggests, in light of his tenth-grade education, the trial court should have done more.

The Ohio Supreme Court has stated “the best method of informing a

defendant of his constitutional rights is to use the language contained in Crim.R.

11(C), stopping after each right and asking the defendant whether he understands

the right and knows that he is waiving it by pleading guilty.” State v. Ballard, 66

Ohio St.2d 473, 479, 423 N.E.2d 115. However, trial courts need not recite Crim.R.

11(C) verbatim and failure to utilize the exact language does not invalidate the plea.

Id. at 480. “Rather, the focus, upon review, is whether the record shows that the trial
court explained or referred to the right in a manner reasonably intelligible to that

defendant.” Id.

Our review indicates the trial court strictly complied with the

requirements of Crim.R. 11(C).

Accordingly, we overrule the second assignment of error.

Judgment affirmed.

It is ordered that appellee recover from 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.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_________________________
EMANUELLA D. GROVES, JUDGE

LISA B. FORBES, P.J., and
EILEEN T. GALLAGHER, J., CONCUR