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Date: 03-27-2021
Case Style:
STATE OF OHIO v. ANDREW L. SMITH
Case Number: 1-20-23
Judge: William R. Zimmerman
Court: IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
Plaintiff's Attorney: Jana E. Emerick
Defendant's Attorney:
OR
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Description:
Dayton, OH - Criminal defense attorney represented Andrew L. Smith with three criminal counts including: Aggravated Robbery, Carrying a Concealed weapon and Having Weapons While Under Disability charges.
On March 14, 2019, the Allen County Grand Jury indicted Smith on
three criminal counts including: Count One of Aggravated Robbery in violation of
R.C. 2911.01(A)(1), (C), a first-degree felony; Count Two of Carrying a Concealed
Weapon in violation of R.C. 2923.12(A)(2), (F)(1), a fourth-degree felony; and
Count Three of Having Weapons While Under Disability in violation of R.C.
2923.13(A)(2), (B), a third-degree felony. (Doc. No. 5). On March 22, 2019, the
trial court appointed an attorney to represent Smith wherein Smith entered not guilty
pleas to all counts in the indictment. (Doc. Nos. 10, 11).
{¶3} On September 20, 2019, the trial court held a final pre-trial hearing with
the understanding that Smith and the State had reached an agreement whereby Smith
would enter guilty pleas to all counts in the indictment with the State agreeing to
merge Counts Two and Three for sentencing. (Sept. 20, 2019 Tr. at 1-2); (Doc. No.
155). However, at the hearing, Smith denied entering into the plea agreement and
requested a new lawyer on the basis that he and his attorney had reached an impasse
as a result of their working relationship. (Id. at 1-12); (Id.). Thereafter, Smith’s
court-appointed attorney requested leave to withdraw as counsel of record and to Case No. 1-20-23
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continue the trial. (Id.). The trial court granted the requests, and appointed a new
lawyer to represent Smith. (Id. at 15-39); (Doc. Nos. 74, 76, 155).
{¶4} Smith’s new counsel represented him without incident until February
27, 2020, wherein the trial court held a hearing on February 27, 2020 following a
disagreement that arose between Smith and his trial counsel during an attorneyclient conference. (Feb. 27, 2020 Tr.); (Doc. No. 158). After that hearing, Smith’s
counsel continued his representation of Smith.
{¶5} The case proceeded to a jury trial on March 9-10, 2020. (Mar. 9, 2020
Tr.); (Mar. 10, 2020 Tr.); (Doc. Nos. 160, 161). On March 10, 2020, the jury found
Smith guilty of Counts One, Two, and Three. (Doc. Nos. 127, 128, 129). The trial
court filed its judgment entry of conviction on March 11, 2020. (Doc. No. 136).
{¶6} On April 24, 2020, the trial court sentenced Smith to a term of nine
years in prison as to Count One, 12-month prison term as to Count Two, and a 30-
month prison term as to Count Three for an aggregate prison term of 9 years and 30
months. (Apr. 24, 2020 Tr. at 19-20); (Doc. Nos. 136, 162). The trial court ordered
the 12-month (Count Two) and 30-month (Count Three) prison terms to run
concurrently to one another, and consecutive to the 9-year prison term under Count
One. The trial court filed its judgment entry of sentence the same day.1
(Doc. No.
136).
1
The trial court granted Smith 442 days’ jail-time credit. (Apr. 24, 2020 Tr. at 22); (Doc. No. 136). Case No. 1-20-23
-4-
{¶7} Smith filed his notice of appeal on May 26, 2020 raising one assignment
of error for our review. (Doc. No. 142).
Assignment of Error
The trial court erred by failing to appoint new counsel after a
breakdown in communication that threatened the effectiveness of
counsel.
{¶8} In his sole assignment of error, Smith argues that the trial court erred
by failing to permit him to discharge his second court-appointed-trial counsel, and
thus, be appointed a third trial counsel one week before trial. Specifically, Smith
argues that since their relationship suffered a breakdown of such magnitude, it
rendered his trial counsel ineffective.
Standard of Review
{¶9} The United States Constitution guarantees a criminal defendant the
right to assistance of counsel for his defense under the Sixth Amendment. State v.
Lane, 3d Dist. Union No. 14-20-04, 2020-Ohio-6798, ¶ 13, citing Ohio Constitution,
Article I, Section 10. The Supreme Court of Ohio has held that in order to discharge
court-appointed counsel, a defendant must show “‘“a breakdown in the attorneyclient relationship of such magnitude as to jeopardize the defendant’s right to
effective assistance of counsel.”’” Id., quoting State v. Coleman, 37 Ohio St.3d 286,
292 (1988), quoting People v. Robles, 2 Cal.3d 205, 215, 85 Cal.Rptr. 166, 466 P.2d
710, 717 (1970). We review a trial court’s decision as to the discharge of court-Case No. 1-20-23
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appointed counsel under an abuse-of-discretion standard. Id., citing State v. Cook,
3d Dist. Union No. 14-10-05, 2010-Ohio-4814, ¶ 12; Coleman at 292; State v.
Cowans, 87 Ohio St.3d 68, 73 (1999), citing United States v. Iles, 906 F.2d 1122
(6th Cir.1990), fn. 8.
{¶10} “‘“[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.”’” Id. at
¶ 14, quoting State v. Jones, 91 Ohio St.3d 335, 342 (2001), quoting Wheat v. United
States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1698 (1988). The Supreme Court of
Ohio has recognized that “‘“[a]n indigent defendant has no right to have a particular
attorney represent him and therefore must demonstrate ‘good cause’ to warrant
substitution of counsel.”’” Id., quoting Cowans at 72, quoting Iles at 1130. If the
defendant’s request for substitution of counsel is unreasonable, a trial judge may
deny the request. Id., citing State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791,
¶ 148, citing State v. Deal, 17 Ohio St.2d 17 (1969), syllabus.
‘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.”’ Case No. 1-20-23
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Id., quoting Jones at 342, quoting United States v. Jennings, 83 F.3d 145, 148 (6th
Cir.1996). “‘In evaluating a request for substitute counsel, the court must balance
“the accused’s right to counsel of his choice [against] the public’s interest in the
prompt and efficient administration of justice.”’” Id., quoting State v. Clemons, 6th
Dist. Lucas No. L-01-1445, 2002-Ohio-5906, ¶ 10, quoting Jennings at 148. We
apply an abuse-of-discretion standard to the trial court’s decision regarding the
substitution of counsel. Id., citing Jones at 343, citing Deal at syllabus. The abuseof-discretion standard implies that the court acted unreasonably, arbitrarily, or
unconscionably. State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
Analysis
{¶11} Importantly, Smith never requested the trial court to discharge his
second trial counsel or to appoint him new counsel prior to trial. (Feb. 27, 2020
Tr.); (Mar. 2, 2020 Tr.); (Doc. Nos. 158, 159). Further, even if we assume without
deciding that Smith requested new counsel at the hearing on February 27, 2020,
Smith’s argument fails.
{¶12} At the February 27, 2020 hearing, Smith never informed the trial court
that his trial counsel failed to meet with him to discuss his case or to keep him
apprised of the proceedings. On the contrary, disagreements occurred over
discussions regarding strategy and trial preparation (while viewing video evidence Case No. 1-20-23
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at the courthouse) that escalated into Smith’s verbal abuse of his trial counsel.2
(Feb. 27, 2020 Tr. at 1-9). After an unrelated hearing was disrupted by Smith’s
behavior (in a courtroom adjacent to the attorney-client conference room and
holding cell), the trial court was alerted of the situation, and convened an impromptu
hearing to address these circumstances. (Id. at 1-2). Upon inquiry by the trial court,
trial counsel expressed his frustration over Smith’s obstructionist conduct (exhibited
exclusively during discussions related to trial strategy), which thwarted trial
counsel’s ability to collaboratively strategize with Smith. (Id. at 13-15).
{¶13} Here, the record reveals that Smith did not have a legitimate reason for
his lack of confidence in his trial counsel. Rather, the record reveals that Smith had
a propensity for combative behavior towards trial counsel (in general) when
strategies diverged from the direction Smith believed his case should proceed. (Feb.
27, 2020 Tr. at 21); (Mar. 2, 2020 Tr. at 6-8); (Doc. Nos. 158, 159). (See Sept. 20,
2019 Tr. at 3-25); (Doc. No. 155). State v. Evans, 153 Ohio App.3d 226, 2003-
Ohio-3475, ¶ 31 (7th Dist.) (“There must be a legitimate reason for the defendant’s
lack of confidence in the attorney because good cause for dismissal cannot be
determined solely according to the subjective standard of what the defendant
perceives.”), citing State v. Julious, 4th Dist. Scioto No. 96CA2409, 1996 WL
2
Smith’s trial counsel also expressed a concern that Smith posed a physical threat to him; however, after the
trial court conferred with the State (who was present when the allegedly threating behavior occurred), the
trial court determined that Smith’s behavior was subject to multiple interpretations. (Feb. 27, 2020 Tr. at 8-
11); (Doc. No. 158). Case No. 1-20-23
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718262, *2 (Dec. 5, 1996). Indeed, “[m]erely because appointed counsel’s trial
tactics or approach may vary from that which appellant views as prudent is not
sufficient to warrant the substitution of counsel.” State v. Glasure, 132 Ohio App.3d
227, 239 (7th Dist.1999). See also State v. Stein, 3d Dist. Mercer No. 10-17-13,
2018-Ohio-2345, ¶ 29 (“‘Defendant and trial counsel’s failure to ‘see eye to eye’
regarding trial strategy is an insufficient basis for removal of appointed counsel.’”),
quoting State v. Hill, 8th Dist. Cuyahoga No. 105554, 2018-Ohio-279, ¶ 11, and
citing State v. Crew, 8th Dist. Cuyahoga No. 86943, 2006-Ohio-4102, ¶ 17
(“Hostility, tension, or personal conflict between an attorney and a client that do not
interfere with the preparation or presentation of a competent defense are insufficient
to justify the withdrawal of appointed counsel.”).
“‘A lawyer has a duty to give the accused an honest appraisal of his
case. * * * Counsel has a duty to be candid; he has no duty to be
optimistic when the facts do not warrant optimism.’” Brown v. United
States (C.A.D.C.1959), 264 F.2d 363, 369 (en banc), quoted in McKee
v. Harris (C.A.2, 1981), 649 F.2d 927, 932. “‘If the rule were
otherwise, appointed counsel could be replaced for doing little more
than giving their clients honest advice.’” McKee, 649 F.2d at 932,
quoting McKee v. Harris (S.D.N.Y.1980), 485 F.Supp. 866, 869.
Cowans, 87 Ohio St.3d at 73. The record reveals that any barrier in communication
between Smith and his attorney was self-imposed as a result of Smith’s hostility and
tension when presented with an honest appraisal of his case by counsel. (Feb. 27,
2020 Tr. at 21); (Mar. 2, 2020 Tr. at 6-8); (Doc. Nos. 158, 159). (See Sept. 20, 2019
Tr. at 3-25); (Doc. No. 155). Moreover, there is no evidence in the record that Case No. 1-20-23
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Smith’s behavior interfered with the preparation and presentation of a competent
defense at trial. (See March 9, 2020 Tr.); (March 10, 2020 Tr.); (Doc. Nos. 160,
161).
{¶14} Based on our review of the record and considering the Jennings
factors, we cannot conclude that there was a complete breakdown in communication
(necessitating discharge), but rather, a trial-strategy disagreement between Smith
and his trial counsel. Accordingly, Smith has failed to demonstrate the “good cause”
warranting substitution of trial counsel. Consequently, based upon the facts
presented, we cannot conclude that the trial court abused its discretion by declining
to discharge and substitute Smith’s court-appointed attorney one week before trial.
{¶15} Accordingly, Smith’s sole assignment of error is overruled.
Outcome: Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
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Defendant's Experts:
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