State v. Tingler

[Cite as State v. Tingler, 2022-Ohio-3792.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. 21CA3962

v. :

ROBERT S. TINGLER, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

_________________________________________________________________

APPEARANCES:

Gene Meadows, Portsmouth, Ohio, for appellant1.

Shane Tieman, Scioto County Prosecuting Attorney, and Jay S.
Willis, Assistant Prosecuting Attorney, Portsmouth, Ohio, for
appellee.
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:10-19-22
ABELE, J.

{¶1} This is an appeal from a Scioto County Common Pleas Court

judgment of conviction and sentence. After Robert S. Tingler,

defendant below and appellant herein, pleaded guilty to possession

of cocaine and tampering with evidence, the trial court sentenced

him to serve 30 months in prison.

1
Different counsel represented appellant during the trial
court proceedings.
 2
SCIOTO, 21CA3962

{¶2} Appellant assigns two errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE DEFENDANT-APPELLANT WAS DENIED HIS SIXTH
AMENDMENT CONSTITUTIONAL RIGHT TO COUNSEL OF
CHOICE WHEN THE TRIAL COURT ARBITRARILY REFUSED
TO PERMIT THE DEFENDANT-APPELLANT TO RETAIN
COUNSEL OF HIS CHOICE.”

SECOND ASSIGNMENT OF ERROR:

“THE DEFENDANT-APPELLANT WAS DENIED HIS SIXTH
AMENDMENT CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL DUE TO A CONFLICT OF
INTEREST OF APPOINTED COUNSEL.”

{¶3} In May 2016, a Scioto County Grand Jury returned an

indictment that charged appellant with (1) possession of cocaine in

violation of R.C. 2925.11(A), a fifth-degree felony, (2) possession

of heroin in violation of R.C. 2925.11(A), a fourth-degree felony,

and (3) tampering with evidence in violation of R.C. 2921.12(A)(1),

a third-degree felony. At appellant’s December 10, 2020 video

arraignment2, appellant entered a not guilty plea and the trial

court appointed counsel.

{¶4} At the June 22, 2021 pretrial hearing, the trial court

noted that it had received appellant’s handwritten letter, dated

June 1, 2021, that requested substitution of counsel. The court

2
According to appellant’s brief, it appears that the delay
between indictment and arraignment is due to appellant’s
incarceration for previous offenses committed in Franklin County.
 3
SCIOTO, 21CA3962

asked, “[s]ince that time that you’ve written me that letter have

you had an opportunity to meet with [appointed counsel] and discuss

your case?” Appellant stated, “Yes, I have.” When asked, “[h]ave

you worked through those issues about your satisfaction with your

counsel,” appellant replied, “[y]es, Your Honor. At this time, you

know, the - - for the interest of the Court, just move it along. I

would like to withdraw that motion.”

{¶5} Subsequently, appellant rejected the state’s plea offer

and, on August 2, 2021, the parties appeared for jury trial. That

morning, with the jury waiting to be seated, appellant informed the

trial court that he wished to raise several issues, including: (1)

the state failed to serve him with a copy of the indictment, (2)

defects exist in the indictment, (3) counsel should have filed a

motion to dismiss based on speedy trial violation, (4) counsel

should have filed a motion to suppress evidence, and (5) appellant

did not receive discovery until 48 hours before trial.

{¶6} At that point, the court served appellant with another

copy of the indictment, informed appellant it found no defects in

the indictment, and observed that the speedy trial deadline had not

yet expired. Trial counsel also informed the court that he did not

file a motion to suppress evidence because it would have been

frivolous, that appellant received discovery “when he first came
 4
SCIOTO, 21CA3962

down here from prison,” and what appellant received 48 hours before

is the “exact same thing as his discovery. So, he’s got to review

the exact same thing.” Counsel further stated that he had

difficulty convincing appellant to review a video of appellant and

his co-defendant, but eventually, counsel “made him watch it.”

{¶7} Although appellant stated he “had issues with this

attorney from the very beginning,” the trial court noted that it

had previously addressed this issue. Appellant then stated that he

did not hear from his attorney since his December arraignment and

he wanted a new attorney. When asked if he hired a new attorney,

appellant replied he had not. Appellant further stated that he

instructed counsel to file a motion to withdraw as counsel. The

court, however, noted, “If you’ve not hired one to be here today

I’m going to find that that’s not timely and we’re going to bring

the jury in and start the trial here in about five minutes.”

{¶8} At that juncture, appellant decided to become enraged and

curse at the trial court. Ultimately, the bailiff and a deputy

sheriff threatened appellant with a taser and restrained him. The

court described the situation:

Mr. Tingler appeared here without restraints per - - I
believe pursuant to a previous order of this Court, even
though he’s currently incarcerated on other charges in the
Department of Corrections. During that he became
dissatisfied with the Courts rulings, dissatisfied with
his counsel. I’d indicated to him that we would be
 5
SCIOTO, 21CA3962

proceeding with the trial here today. During that time he
jumped up from his chair, slung the Defense counsels papers
across the courtroom, began pacing back and forth. The
Bailiff had to pull a taser to get him to sit back down in
his chair, which took some time. He’s now been restrained.
Based on the Defendants conduct here in the court I’m going
to find that he poses a danger to the court participants
and to the jury if he’d remain unrestrained during the
trial, and I’m going to order that he be restrained during
the trial.

Now, Mr. Tingler, I’ll tell you right now we’re not going
to put up with that conduct in front of the jury. If you
do that again, or if you act out, you interrupt these court
proceedings I will remove you from the courtroom and we’ll
proceed with this trial without you present.

When the court asked appellant if he understood the situation,

appellant did not answer. A few minutes later, appellant’s counsel

advised the court that appellant asked him to withdraw from the

case. However, after the court denied the motion and during the

recess, appellant composed himself and discussed a proposed plea

agreement with counsel and for an 18 month concurrent sentence.

The court stated, “I’d indicated in chambers that at this point I’m

not going to agree to any sentence bargaining.” After another

recess, appellant decided to plead guilty to counts one and three.

{¶9} At the change of plea hearing, the trial court advised

appellant of his constitutional rights, reviewed postrelease

control and the maximum penalties. Appellant then pleaded guilty

to (1) possession of cocaine in violation of R.C. 2925.11(A), a
 6
SCIOTO, 21CA3962

fourth-degree felony, and (2) tampering with evidence in violation

of R.C. 2921.12(A)(1), a third-degree felony. At sentencing, the

court acknowledged appellant “did act out before the jury was

brought into the courtroom, but ultimately he complied with the

request of the Court staff and the deputies, so I’m not going to

hold that conduct against him for purposes of sentencing.”

Consequently, the court sentenced appellant to serve (1) six months

in prison for possession, and (2) 30 months in prison for

tampering, with the sentences to be served concurrently with each

other and consecutively to appellant’s current prison sentence.

Finally, the court ordered appellant to serve an optional three-

year postrelease control term. This appeal followed.

I.

{¶10} In his first assignment of error, appellant asserts that

the trial court denied him his Sixth Amendment right to counsel

when it refused to permit him “to retain counsel of his choice.”

{¶11} Initially, we point out that appellant entered guilty

pleas to the two offenses. Generally, a guilty plea waives all

appealable errors, including claims of ineffective assistance of

counsel, except to the extent that the alleged errors precluded

appellant from knowingly, intelligently and voluntarily entering

his guilty plea. State v. Colon, 8th Dist. No. 104944, 99 N.E.3d.
 7
SCIOTO, 21CA3962

1197; State v. Geiga, 157 Ohio App.3d 112, 809 N.E.2d 673, 2004-

Ohio-2124. Although appellant in the case at bar expressed general

displeasure with trial counsel, appellant does not provide any

basis or reason for a claim that this guilty plea was less than

knowing, intelligent and voluntary. Nevertheless, in the interest

of justice we will review appellant’s assignments of error.

{¶12} The Sixth Amendment to the United States Constitution,

and Article I, Section 10 of the Ohio Constitution, provides that

defendants in all criminal proceedings shall have the assistance of

counsel for their defense. To establish constitutionally

ineffective assistance of counsel, a defendant must show that (1)

counsel rendered a deficient performance, and (2) the deficient

performance prejudiced the defense and deprived the defendant of a

fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). To establish deficient performance, a

defendant must prove that counsel's performance fell below an

objective level of reasonable representation. State v. Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95.

Additionally, a court need not analyze both Strickland test prongs

if it can resolve the claim under one prong. See State v.

Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000); State v.

Bowling, 4th Dist. Jackson No. 19CA2, 2020-Ohio-813, ¶ 12-13.
 8
SCIOTO, 21CA3962

{¶13} When a court examines whether counsel's representation

amounts to deficient performance, “a court must indulge a strong

presumption that counsel's conduct falls within the wide range of

reasonable professional assistance.” Strickland at 689, 466 U.S.

668, 104 S.Ct. 2052. Moreover, because a properly licensed

attorney is presumed to execute all duties ethically and

competently, State v. Taylor, 4th Dist. Washington No. 07CA11,

2008-Ohio-482, ¶ 10, to establish ineffectiveness, a defendant must

demonstrate that counsel's errors were “so serious” that counsel

failed to function “as the ‘counsel’ guaranteed * * * by the Sixth

Amendment.” Strickland at 687, 466 U.S. 668, 104 S.Ct. 2052.

{¶14} The right to counsel “guarantees a defendant the right to

be represented by an otherwise qualified attorney whom that

defendant can afford to hire, or who is willing to represent the

defendant even though he is without funds.” Caplin & Drysdale,

Chartered v. United States, 491 U.S. 617, 624-25, 109 S.Ct. 2646,

105 L.Ed.2d 528 (1989). Moreover, “[a] criminal defendant who

desires and is financially able to retain his own counsel ‘should

be afforded a fair opportunity to secure counsel of his own

choice.’” Id., quoting Powell v. Alabama, 287 U.S. 45, 53, 53

S.Ct. 55, 77 L.Ed. 158 (1982); State v. Beem, 5th Dist. Licking No.

2019CA00062, 2020-Ohio-2964, ¶ 29.
 9
SCIOTO, 21CA3962

{¶15} Appellant argues that the trial court deprived him of his

right to counsel when it refused to permit him to retain counsel of

his choice. We point out, however, that at any point in the

proceedings, from appellant’s arraignment to his change of plea,

appellant could have retained any counsel, at his expense. We find

nothing in the record to indicate in any manner that the trial

court prohibited or interfered with this endeavor. Thus, because

appellant did not attempt to retain counsel, the issue here appears

to be appellant’s desire to have the court replace his court

appointed counsel.

{¶16} “[W]hile the right to select and be represented by one's

preferred attorney is comprehended by the Sixth Amendment, the

essential aim of the Amendment is to guarantee an effective

advocate * * * rather than to ensure that a defendant will

inexorably be represented by the lawyer whom he prefers.” Wheat v.

United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d

140, 148 (1988). Thus, “[a] defendant has only a presumptive right

to employ his own chosen counsel.” State v. Keenan, 81 Ohio St.3d

133, 137, 689 N.E.2d 929, 937 (1998).

{¶17} However, the right to counsel of choice “is not absolute

* * * and courts have ‘wide latitude in balancing the right to

counsel of choice against the needs of fairness and against the
 10
SCIOTO, 21CA3962

demands of its calendar.’” State v. Oliver, 2018-Ohio-602, 106

N.E.3d 300, ¶ 5 (10th Dist.), quoting State v. Frazier, 8th Dist.

Cuyahoga No. 97178, 2012-Ohio-1198, ¶ 26, quoting United States v.

Gonzalez-Lopez, 548 U.S. 140, 152, 126 S.Ct. 2557, 165 L.Ed.2d 409

(2006). Thus, a trial court’s “difficult responsibility of

assembling witnesses, lawyers and jurors for trial ‘counsels

against continuances except for compelling reasons.’” State v.

Howard, 5th Dist. Stark No. 2012CA00061, 2013-Ohio-2884, ¶ 40,

quoting Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75

L.Ed.2d 610 (1983).

{¶18} Factors to consider in deciding whether a trial court

erred in denying a defendant's motion to substitute counsel include

“the timeliness of the motion; the adequacy of the court's inquiry

into the defendant's complaint; and whether the conflict between

the attorney and client was so great that it resulted in a total

lack of communication preventing an adequate defense.” United

States v. Jennings, 83 F.3d 145, 148 (6th Cir.1996). In addition,

courts should “balanc[e] * * * the accused's right to counsel of

his choice and the public's interest in the prompt and efficient

administration of justice.” Id.; State v. Jones, 91 Ohio St.3d

335, 342-43, 744 N.E.2d 1163 (2001).

{¶19} Generally, a defendant bears the burden to demonstrate
 11
SCIOTO, 21CA3962

that substitute counsel is warranted. State v. Carter, 128 Ohio

App.3d 419, 423, 715 N.E.2d 223 (4th Dist.1998). Once an indigent

defendant questions the adequacy of assigned counsel during trial,

a court must inquire into the complaint on the record. Id.

“Decisions relating to the substitution of counsel are within the

sound discretion of the trial court.” Jones, supra, at 343;

Frazier at ¶ 26, citing Wheat at 159. This court has held:

[A]n indigent defendant is entitled to new counsel ‘only
upon 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.’ State v. Edsall (1996), 113 Ohio App.3d 337, 339,
680 N.E.2d 1256; see, also, State v. Blankenship (1995),
102 Ohio App.3d 534, 558, 657 N.E.2d 559; Pruitt, 18 Ohio
App.3d at 57, 480 N.E.2d 499.

State v. Newland, 4th Dist. Ross No. 02CA2666, 2003-Ohio-3230, ¶

11.

{¶20} In addressing the factors courts use to determine whether

a trial court erred in denying a defendant’s motion to substitute

counsel, we first observe that appellant’s morning of trial request

for substitute counsel was not timely. Due to appellant’s

indigence, the trial court appointed counsel at appellant’s

December 14, 2020 arraignment. On June 10, 2021, appellant filed a

pro se motion to substitute counsel and asserted that, since his

arraignment, no communication occurred between appellant and
 12
SCIOTO, 21CA3962

appointed counsel and that counsel “completely failed at his

constitutional obligation to represent [him] adequately and

effectively. Current counsel has been more of an asset to the

prosecution than to the defense, hereby making it impossible to

mount an adequate defense.” However, at the June 22, 2021 pretrial

hearing, appellant opted to withdraw his motion to substitute

counsel.

{¶21} Our review of the record reveals that appellant failed to

seek trial counsel substitution until the morning of his jury

trial, and this fact must weigh heavily against him. See State v.

Spencer, 10th Dist. Franklin No. 16AP-444, 2017-Ohio-1140, ¶ 9

(request for substitute counsel untimely on morning of trial);

State v. McCoy, 188 Ohio App.3d 152, 2010–Ohio–2639, 934 N.E.2d

971, ¶ 48 (2d Dist.)(suggestion of bad faith when motions to

substitute counsel made day of trial, particularly when trial date

set for some time).

{¶22} The second factor in the analysis is the adequacy of the

trial court’s inquiry into the defendant’s request. Here, at the

June 22, 2021 pretrial hearing, the trial court thoroughly inquired

about appellant’s motion to substitute counsel. When asked if he

had “worked through those issues about your satisfaction with your
 13
SCIOTO, 21CA3962

counsel,” appellant replied, “[y]es, Your Honor. At this time, you

know, the - - for the interest of the Court, just move it along. I

would like to withdraw that motion.”

{¶23} On the morning of the jury trial, appellant again raised

the issue and argued that counsel did not spend enough time with

him, did not file a motion to suppress evidence, did not file a

motion to dismiss based on a speedy trial violation, and did not

allow him to review discovery until 48 hours before trial.

Appellant further argued that he did not receive a copy of the

indictment and challenged the indictment as defective. However, as

we noted above, counsel informed the trial court that a motion to

suppress would have been frivolous, appellant received another copy

of the indictment, the court informed appellant that no defects

appear in the indictment and that no speedy trial violation had

occurred. Thus, after the trial court fully discussed this matter

with appellant on the record, the court gave appellant time to

compose himself and move forward.

{¶24} As detailed above, in the case sub judice the trial court

inquired about appellant’s concerns both at a pretrial hearing and

again when the parties appeared for jury trial. Thus, in view of

the fact the trial court adequately inquired about appellant’s

complaint and his request for substitute counsel, this factor
 14
SCIOTO, 21CA3962

weighs against appellant.

{¶25} Another factor courts must consider when evaluating a

request for substitute counsel is whether an alleged conflict

between an attorney and client is so great that it results in a

total lack of communication and prevents an adequate defense.

Jennings, supra, 83 F.3d 145 at 148; see also State v. Cowans, 87

Ohio St.3d 68, 73, 717 N.E.2d 298 (1999); State v. Murphy, 91 Ohio

St.3d 516, 523, 747 N.E.2d 765 (2001). However, whether counsel is

court-appointed or privately retained, the Sixth Amendment

guarantees competent representation but “does not include the right

to develop and share a ‘meaningful attorney-client relationship”

with one’s attorney. State v. Gordon, 149 Ohio App.3d 237, 2002-

Ohio-2761, ¶ 12 (1st Dist.). Moreover, “[h]ostility, tension, or

personal conflicts between an attorney and a client that do not

interfere with the preparation or presentation of a competent

defense are insufficient to justify a change in appointed counsel.”

Newland, supra, 2003-Ohio-3230, at ¶ 11, citing State v. Henness,

79 Ohio St.3d 53, 65-66, 679 N.E.2d 686.

{¶26} In the case at bar, appellant appeared to be dissatisfied

with his representation and argued he did not review discovery

materials until “thirteen minutes, two days before trial.”

Apparently, appellant’s courtroom outburst underscored his
[Cite as State v. Tingler, 2022-Ohio-3792.]

frustration with the situation. However, appellant did not present

evidence of a total breakdown in communication. Further, appointed

counsel informed the court that he met with appellant, encouraged

appellant to view discovery, and prepared to proceed at trial.

{¶27} Finally, as appellee notes, appellant did not present any

evidence of prejudice. In exchange for appellant’s guilty plea to

possession of cocaine and tampering with evidence, the state

dismissed the heroin possession charge, a fourth-degree felony.

Furthermore, the trial court did not impose a maximum sentence.

As such, after our review we conclude that the trial court properly

exercised its discretion to deny appellant’s morning of trial

request for a last-minute substitution of counsel.

{¶28} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

II.

{¶29} In his second assignment of error, appellant asserts that

a particular conflict with appointed counsel denied him his Sixth

Amendment right to effective assistance of counsel. Appellant

supplemented the record with a docket sheet, appointment of

counsel, and motion to withdraw to demonstrate that his appointed

counsel also briefly served as the appointed counsel for

appellant’s co-defendant Rieser, which, appellant contends,
[Cite as State v. Tingler, 2022-Ohio-3792.]

constitutes successive representation. Appellee argues, however,

that appellant failed to show any prejudice.

{¶30} Successive representation occurs when defense counsel has

previously represented a co-defendant or a trial witness. Moss v.

United States, 323 F.3d 445, 459 (6th Cir.2003). Successive

representation “differs materially” from simultaneous

representation because “the attorney is no longer beholden to the

former client.” State v. Jones, 5th Dist. Stark Nos. 2007-CA-

00041, 2007-Ohio-00077, 2008-Ohio-1068, ¶ 77. “The fear in

successive representation cases is that the lawyer will fail to

cross-examine the former client rigorously for fear of revealing or

misusing privileged information.” Moss at 460. The attorney could

be “tempted to use confidential information to impeach the former

client; or * * * may fail to conduct a rigorous cross-examination

for fear of misusing his confidential information.” State v.

Stephenson, 10th Dist. Franklin No. 13AP–609, 2014-Ohio-670, ¶ 16,

citing U.S. v. Agosto, 675 F.2d 965, 971 (8th Cir.1982).

{¶31} “[W]here a trial court knows or reasonably should know of

an attorney’s possible conflict of interest in the representation

of a person charged with a crime, the trial court has an

affirmative duty to inquire whether a conflict of interest actually

exists.” State v. Gillard, 64 Ohio St.3d 304, 311, 595 N.E.2d 878
[Cite as State v. Tingler, 2022-Ohio-3792.]

(1992). “Where a trial court breaches its affirmative duty to

inquire, a criminal defendant’s rights to counsel and to a fair

trial are impermissibly imperiled and prejudice or ‘adverse effect’

will be presumed.” Id. at 312. However, “a trial court’s failure

to inquire into a possible conflict of interest does not transform

a possible conflict into an actual one nor does it automatically

require a retrial, for such retrial would be premature.” State v.

Beamon, 12th Dist. Butler No. CA2018-04-065, 2019-Ohio-443, ¶ 26,

citing State v. Gillard, 78 Ohio St.3d 548, 552, 679 N.E.2d 276

(1997)(Gillard II).

{¶32} To establish that an actual conflict of interest existed,

an appellant must demonstrate two elements. State v. Laghaoui,

2018-Ohio-2261, 114 N.E.3d 249, ¶ 22 (12th Dist.). First, the

appellant must show that “ ‘some plausible alternative defense

strategy or tactic might have been pursued.’ ” Gillard II at 552,

quoting United States v. Fahey, 769 F.2d 829, 836 (1st Cir.1985).

Second, the appellant must “ ‘establish that the alternative

defense was inherently in conflict with or not undertaken due to

the attorney’s loyalties or interests.’” Id., quoting Fahey at

836.

{¶33} An “actual conflict of interest,” for purposes of the

Sixth Amendment, is “a conflict of interest that adversely affects
[Cite as State v. Tingler, 2022-Ohio-3792.]

counsel’s performance.” Mickens v. Taylor, 535 U.S. 162, 172, 122

S.Ct. 1237, 152 L.Ed.2d 291 (2002), fn. 5. To prove an “actual

conflict of interest,” the defendant must show that his counsel

“actively represented conflicting interests,” and that the conflict

“actually affected the adequacy of his representation.” Id.,

quoting Cuyler v. Sullivan, 446 U.S. 335, 349-350, 100 S.Ct. 1708,

64 L.Ed.2d 333 (1980).

{¶34} In State v. McDonald, 4th Dist. Lawrence No. 09CA4, 2009-

Ohio-5132, trial counsel previously represented one of the state’s

witnesses against the defendant. We observed that Ohio courts have

generally required defendants, who claim a successive conflict of

interest, to demonstrate an actual conflict. Id. at ¶ 13, Jones,

supra, 2008-Ohio-1068, at ¶ 71-78; State v. McGhee, 4th Dist.

Lawrence No. 04CA15, 2005-Ohio-1585, at ¶ 19-24; State v. Peoples,

10th Dist. Franklin No. 02AP-945, 2003-Ohio-4680, at ¶ 36-41.

{¶35} “ ‘ The term of art ‘actual conflict’ refers not to a

personality conflict but to a conflict of interest.’ ” State v.

Henness, 79 Ohio St.3d 53, 65, 679 N.E.2d 686 (1997), citing

Strickland v. Washington, 466 U.S. 668, 692; State v. Dunn, 4th

Dist. Pickaway No. 97CA26, 1998 WL 337079 (June 17, 1998). A

possible conflict of interest exists where the “interests of the

defendants may diverge at some point so as to place the attorney
[Cite as State v. Tingler, 2022-Ohio-3792.]

under inconsistent duties.” State v. Dillon, 74 Ohio St.3d 166,

168, 657 N.E.2d 273 (1995), quoting Cuyler, 446 U.S. at 356, 100

S.Ct. At 1722, 64 L.Ed.2d at 351, 352, fn. 3. “[A]n actual

conflict of interest exists if, during the course of the

representation, the defendants’ interests do diverge with respect

to a material factual or legal issue or to a course of action.”

Dillon at 169, quoting Cuyler, 446 U.S. at 356, fn.3. “[W]hether

an actual conflict of interest existed is a mixed question of law

and fact, subject to de novo review on appeal.” Cuyler at 342.

{¶36} In McDonald, supra, 2009-Ohio-5132, the defendant “merely

stated that his counsel was ‘affiliated’ with the state’s witness.”

Further, the defendant stated that his counsel had “previously

represented” the witness. Id. at ¶ 16. This court held that

“[p]rior representation of a witness or victim is by itself

insufficient to demonstrate an actual conflict of interest,” id.,

and concluded that McDonald had, at best, demonstrated a potential

conflict and pointed to no specific legal, factual or motivational

issues that rose to the level of an actual conflict. Id.

{¶37} In State v. Beamon, supra, 2019-Ohio-443, the defense

attorney had represented the victim in an unrelated criminal matter

and Beamon waived any potential conflict of interest. However, on
[Cite as State v. Tingler, 2022-Ohio-3792.]

appeal appellant challenged the successive representation. The

Twelfth District noted that successive representation did not give

rise to the same presumption of prejudice as simultaneous

representation, and held it is more difficult for a defendant to

show that defense counsel actively represented conflicting

interests in cases of successive, rather than simultaneous,

representation. Id. at ¶ 24, citing State v. Buck, 1st Dist.

Hamilton No. C-160320, 2017-Ohio-8242, ¶ 91. Thus, the court

concluded that Beamon failed to demonstrate that an actual conflict

of interest existed. Id. at ¶ 28. Moreover, the court determined

that Beamon failed to demonstrate that he suffered prejudice as a

result of the defense counsel’s representation of the victim eight

years earlier. Id. at ¶ 29.

{¶38} In the case sub judice, co-defendant Rieser’s docket

summary indicates that, on August 31, 2016, the trial court

arraigned Rieser, found him indigent, and appointed Attorney

Stratton, appellant’s trial attorney in the case sub judice. On

September 2, 2016, Stratton filed a request for a bill of

particulars, a request for notice of intent to use evidence, a

request for disclosure of evidence, and a motion to preserve

evidence. On September 19, 2016, Stratton filed a motion to

withdraw and stated, “Attorney Shawn Stratton has represented the

codefendant, Robert S. Tingler, on a prior criminal case.” The
[Cite as State v. Tingler, 2022-Ohio-3792.]

trial court granted the motion to withdraw on September 21, 2016.

Thus, it appears that Stratton represented co-defendant Rieser for

less than thirty days, and some four years before appellant’s plea

in the case at bar. By contrast, the trial court appointed

Attorney Stratton to represent appellant on December 17, 2020,

after the court arraigned appellant and found him indigent.

Stratton represented appellant in this case from December 17, 2020,

until his August 6, 2021 guilty plea.

{¶39} Other than demonstrating that appellant’s appointed

counsel very briefly represented appellant’s co-defendant four

years before he represented appellant, appellant did not provide

any evidence of actual conflict. In this case, trial counsel’s

brief representation of appellant’s co-defendant did not prejudice

appellant or create an actual conflict, and appellant has not

established an ineffective assistance of counsel claim because he

did not demonstrate an actual conflict of interest. Further,

appellant did not explain how his interests diverged from, or are

adverse to, the co-defendant’s interests on any factual or legal

issue. Moreover, the record does not indicate that defense

counsel’s prior brief representation of Rieser created any

conflict.
[Cite as State v. Tingler, 2022-Ohio-3792.]

{¶40} Therefore, after our review in the case sub judice, we

believe that appellant merely asserts that trial counsel had

conflicting obligations, but provides no specific and credible

evidence to link his conviction to the alleged conflict of

interest. As such, appellant failed to demonstrate that trial

counsel’s alleged conflict of interest deprived him of his

constitutional right to the effective assistance of counsel.

{¶41} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED.
[Cite as State v. Tingler, 2022-Ohio-3792.]
SCIOTO, 21CA3962

24

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellee
recover of appellant the 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 Scioto County Common Pleas Court to carry this
judgment into execution.

If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.

A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:_____________________________
Peter B. Abele, Judge

NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
SCIOTO, 21CA3962

25
commences from the date of filing with the clerk.