State v. Johnson , 2022 Ohio 1479 ( 2022 )


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  • [Cite as State v. Johnson, 
    2022-Ohio-1479
    .]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    SCIOTO COUNTY
    STATE OF OHIO,                                       :
    Plaintiff-Appellee,                          : CASE NO. 20CA3935
    v.                                           :
    SASHIA JOHNSON,                                      : DECISION AND JUDGMENT ENTRY
    Defendant-Appellant.                         :
    _________________________________________________________________
    APPEARANCES:
    Roger Soroka and Joshua Bedtelyon, Columbus, Ohio, for appellant.
    Shane Tieman, Scioto County Prosecuting Attorney, and Jay Willis,
    Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee.
    ___________________________________________________________________
    CRIMINAL APPEAL FROM COMMON PLEAS COURT
    DATE JOURNALIZED:4-28-22
    ABELE, J.
    {¶1}     Sashia Johnson, defendant below and appellant herein,
    appeals the trial court’s granting of the state’s motion to
    disqualify her attorney.                      Appellant assigns two errors for review:
    FIRST ASSIGNMENT OF ERROR:
    “THE TRIAL COURT ERRED IN DENYING APPELLANT HER
    SIXTH AMENDMENT RIGHT TO COUNSEL BECAUSE THE
    COURT DID NOT HAVE AN AFFIRMATIVE DUTY TO
    INQUIRE INTO POSSIBLE CONFLICTS OF INTEREST
    BETWEEN CODEFENDANTS JORDAN AND JOHNSON.”
    2
    SCIOTO, 20CA3935
    SECOND ASSIGNMENT OF ERROR:
    “THE TRIAL COURT ERRED IN DENYING APPELLANT HER
    SIXTH AMENDMENT RIGHT TO COUNSEL BECAUSE THERE
    WAS NO ACTUAL CONFLICT OF INTEREST BETWEEN
    CODEFENDANTS JORDAN AND JOHNSON.”
    {¶2}   On June 29, 2020, a Scioto County Grand Jury returned an
    indictment that charged appellant with (1) trafficking in cocaine
    in violation of R.C. 2925.03(A)(2) and possession of cocaine in
    violation of R.C. 2925.11(A), both first-degree felonies with major
    drug offender and forfeiture specifications, and (2) possessing
    criminal tools in violation of R.C. 2923.24(A), a fifth-degree
    felony.     On the same date, a Scioto County Grand Jury returned an
    indictment that charged Co-defendant Adrienne Jordan (see State v.
    Jordan, 4th Dist. Scioto No. 20CA3936, 2022-Ohio-XXXX) with
    identical offenses.     The same attorney represented appellant and
    Co-defendant Jordan1.
    {¶3}   After the state raised the issue of conflicting
    representation, at the September 3, 2020 hearing appellant’s
    counsel argued that (1) a criminal defendant has a fundamental
    right to be represented by an attorney of their choice, (2) counsel
    advised his clients of potential conflicts, and (3) counsel
    obtained conflict waivers from each client.     Also, both appellant
    1
    The same attorney represents appellant and Jordan on
    appeal.
    3
    SCIOTO, 20CA3935
    and Jordan told the trial court on the record that they wished to
    have the same attorney represent them both, and provided written
    disclosures of potential conflict.
    {¶4}   At a second hearing, the trial court inquired about the
    particular facts involved in the traffic stop that resulted in the
    indictments, including who drove the vehicle, who owned the vehicle
    and the precise location within the vehicle where officers found
    the drugs.    Concerning the cocaine, the state replied, “in the
    center console, accessible to both Defendants.”    When asked about
    the marijuana, the state replied, “[t]here was residue in the
    driver’s side door panel, and there were baggies of marijuana
    retrieved from Defendant Jordan’s purse.”   The state also indicated
    that the co-defendants’ cell phones were “being downloaded by the
    O.S.P. lab.”    The court then asked defense counsel, “why wouldn’t
    Ms. Johnson at trial want to argue that this is Ms. Jordan’s
    narcotics?”    Counsel answered “they understand that” and indicated
    that he had filed a suppression motion2, “so we don’t necessarily
    get to that trial until we have that suppression hearing. * * *
    They would not have to make that decision, but at this point they
    are aware that that would potentially be a defense available to
    them, and neither of them are interested in that defense.”    At that
    2
    Appellant and Co-defendant Jordan filed a motion to suppress
    evidence on October 2, 2020.
    4
    SCIOTO, 20CA3935
    point, appellee interjected that “any offers that would be
    considered being made by the State would occur before that
    [suppression] hearing.   Once that hearing is underway it will be a
    plead as charged situation or go to trial.”   Defense counsel then
    responded, “which was relayed at the last hearing, Your Honor, and
    then relayed to our clients as well, and they still wish to proceed
    in this manner.”
    {¶5}   On November 9, 2020, the trial court removed Soroka &
    Associates LLC as counsel and ordered appellant to obtain new
    counsel.    The court wrote in part:
    In this matter the State has alleged that Johnson was the
    driver of a vehicle owned by either Jordan, or her family
    member, and Jordan was the passenger when they were
    stopped by the Troopers of the Ohio State Highway Patrol.
    The State further alleges that a large quantity of
    cocaine was found in the center console. Defendants,
    through counsel do not dispute these facts but allege
    that the suppression of evidence will decide the issue
    and the parties will not proceed to trial.
    The trial court cannot foresee what evidence the State
    will present at trial, or what each of the co-defendants
    may wish to explore prior to trial. In reviewing this
    matter this Court finds there is serious potential that
    one defendant will change her position and claim the
    other committed the charged offenses alone. The evidence
    at trial may more strongly incriminate one defendant over
    the other. It is also possible that the evidence could
    more strongly exculpate one defendant over the other.
    Counsel representing both defendants would be precluded
    from arguing those facts to the jury that tend to
    incriminate one defendant but not the other or tend to
    exculpate one defendant but not the other. Additionally,
    one defendant may desire to explore potential plea
    bargains with the State rather than go to trial. This
    5
    SCIOTO, 20CA3935
    Court finds that there is a serious potential for a
    conflict of interest in dual representation of both
    defendants.
    The hearing in this matter also included defendant
    Jordan’s probation violation in 17-CR-733. Since that
    matter is separate and distinct from the issues raised in
    the case in which they are codefendants, this Court finds
    there is no actual or serious potential for conflict in
    defense counsel’s continued representation in that
    matter.
    Therefore, this Court refuses the waiver of conflicts
    offered in this matter and finds a serious potential for
    conflict of interest in the matter in which Johnson and
    Jordan are co-defendants, being case number 20-CR-
    388(A)/(B).
    Wherefore, in case number 20-CR-388(A)/(B) defense
    counsel and the firm Soroka & Associates LLC are hereby
    removed as counsel of record and relieved of further
    responsibilities in this matter. Defendants are ORDERED
    to obtain new counsel within fourteen (14) days of the
    date of this entry. Defense counsel shall continue as
    counsel in the matter of State of Ohio v. Adrienne
    Jordan, 17-CR-733 [the probation violation case].
    This appeal followed.
    I.
    {¶6}   Because appellant’s assignments of error are
    interrelated, we consider them together.    In her first assignment
    of error, appellant asserts that the trial court did not have an
    affirmative duty to inquire into possible conflicts of interest
    between Co-defendants Jordan and Johnson and, thus, the court’s
    order denied appellant her Sixth Amendment right to counsel. In her
    second assignment of error, appellant contends the court’s order
    6
    SCIOTO, 20CA3935
    denied appellant her Sixth Amendment right to counsel because no
    actual conflict of interest exists between Co-defendants Jordan and
    Johnson.
    {¶7}   “‘[T]he standard of review for determining whether the
    court erred in its pretrial disqualification of defense counsel is
    whether it abused its broad discretion.’”    State v. Keenan, 
    81 Ohio St.3d 133
    , 137, 
    689 N.E.2d 929
     (1998), quoting State ex rel. Keenan
    v. Calabrese, 
    69 Ohio St.3d 176
    , 180, 
    631 N.E.2d 119
     (1994).    The
    term ‘abuse of discretion’ implies that a court’s attitude is
    unreasonable, arbitrary or unconscionable.    State v. Adams, 
    62 Ohio St.2d 151
    , 157, 
    404 N.E.2d 144
     (1980).    When reviewing a trial
    court’s decision concerning counsel disqualification, an appellate
    court must be cognizant of the context within which the ruling is
    made and aware that “‘the likelihood and dimensions of nascent
    conflicts of interest are notoriously hard to predict.’”    Wheat v.
    U.S., 
    486 U.S. 153
    , 162, 
    108 S.Ct. 1692
    , 
    100 L.Ed.2d 140
     (1988).
    {¶8}   The Sixth Amendment to the United States Constitution
    guarantees that “[i]n all criminal prosecutions, the accused shall
    enjoy the right . . . to have the Assistance of Counsel for his
    defense.”    “[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 for each criminal defendant rather than to ensure that a
    7
    SCIOTO, 20CA3935
    defendant will inexorably be represented by the lawyer whom he [or
    she] prefers.”   Wheat, 466 U.S. at 159, citing Morris v. Slappy,
    
    461 U.S. 1
    , 13-14, 
    103 S.Ct. 1610
    , 
    75 L.Ed.2d 610
     (1983) and Jones
    v. Barnes, 
    463 U.S. 745
    , 
    103 S.Ct. 3308
    , 
    77 L.Ed.2d 987
     (1983).
    Thus, the Sixth Amendment right to choose one’s counsel “is
    circumscribed in several important respects,”    Wheat, 
    supra, at 159
    , including the right to be free from conflicts of interest.
    State v. Gillard, 
    64 Ohio St.3d 304
    , 312, 
    595 N.E.2d 878
     (1992);
    accord State v. Pickett, 4th Dist. Athens No. 15CA13, 2016-Ohio-
    4593, ¶ 49.
    {¶9}   In general, dual representation does not per se violate
    due process, Holloway v. Arkansas, 
    435 U.S. 475
    , 482, 
    98 S.Ct. 1173
    , 
    55 L.Ed.2d 426
     (1978), and may even benefit clients in cases
    when a common defense may be mounted against charges.    
    Id. at 483
    .
    However, “multiple representation of criminal defendants engenders
    special dangers of which a court must be aware.”    Wheat, 
    supra,
     
    486 U.S. at 159
    , 
    108 S.Ct. 1692
    , 
    100 L.Ed.2d 140
    .   Therefore, both
    defense counsel and the trial court are under an affirmative duty
    to ensure that a defendant's representation is conflict-free.
    State v. Dillon, 
    74 Ohio St.3d 166
    , 167-168, 
    657 N.E.2d 273
     (1995).
    {¶10} “[A] court confronted with and alerted to possible
    conflicts of interest must take adequate steps to ascertain whether
    the conflicts warrant separate counsel.”    Wheat, 
    supra, at 159-160
    .
    8
    SCIOTO, 20CA3935
    The Supreme Court of Ohio has held that a trial court does not have
    a duty to inquire regarding potential conflicts with dual
    representation unless the court knows or reasonably should know
    that a possible conflict of interest exists, or when the defendant
    objects to the multiple representation.   State v. Manross, 
    40 Ohio St.3d 180
    , 181, 
    532 N.E.2d 735
    , (1988); see also State v. Williams,
    __ Ohio St.3d __, 
    2021-Ohio-3152
    , __ N.E.3d __.
    {¶11} Thus, the right to counsel of choice is not unqualified,
    but is “only a presumptive right to employ * * * chosen counsel.”
    Keenan, 
    81 Ohio St.3d 133
    , 137, 
    689 N.E.2d 929
    .   “‘[T]hat
    presumption may be overcome not only by a demonstration of actual
    conflict but by a showing of a serious potential for conflict.’”
    
    Id.,
     quoting Wheat, 
    486 U.S. at 164
    . While an essential element of
    the Sixth Amendment right to counsel is to have counsel of one’s
    choice, and the “erroneous deprivation of the right to counsel of
    choice, ‘with consequences that are necessarily unquantifiable and
    indeterminate, unquestionably qualifies as ‘structural error,’”
    (internal citations omitted), a defendant may not “demand that a
    court honor his waiver of conflict-free counsel.”   United States v.
    Gonzalez-Lopez, 
    126 U.S. 140
    , 147, 150-152, 
    126 S.Ct. 2557
    , 
    165 L.Ed.2d 409
     (2006).
    {¶12} The Supreme Court of Ohio has stated that “[a] lawyer
    represents conflicting interests when on behalf of one client, it
    9
    SCIOTO, 20CA3935
    is his duty to contend for that which duty to another client
    requires him to oppose.”   Manross, 40 Ohio St.3d at 182, citing
    Columbus Bar Ass’n. v. Grelle, 
    14 Ohio St.2d 208
    , 
    237 N.E.2d 298
    (1968).   “Joint representation of conflicting interests is suspect
    because of what it tends to prevent the attorney from doing. * * *
    [A] conflict may * * * prevent an attorney from challenging the
    admission of evidence prejudicial to one client but perhaps
    favorable to another, or from arguing at the sentencing hearing the
    relative involvement and culpability of his clients in order to
    minimize the culpability of one by emphasizing that of another.”
    Holloway, 
    435 U.S. at 489-490
    , 
    98 S.Ct. 1173
    , 
    55 L.Ed.2d 426
    .
    {¶13} The Fifth District has considered this issue in State v.
    Kish, 5th Dist. Fairfield No. 17-CA-22, 
    2017-Ohio-7551
     and State v.
    Cook, 5th Dist. Fairfield No. 17-CA-23, 
    2017-Ohio-7552
    .   In Kish
    and Cook, after a weekend visitation, authorities charged the co-
    defendants, presumably boyfriend and girlfriend, with domestic
    violence, endangering children and assault.   When the same attorney
    represented both co-defendants, the state moved to disqualify and
    explained that a plea offer had been extended to Kish for testimony
    against Cook.   Both co-defendants, however, expressed satisfaction
    with joint representation and provided written disclosures of any
    potential conflict.   After the trial court disqualified defense
    counsel from representing both defendants, the Fifth District
    10
    SCIOTO, 20CA3935
    concluded “there is clearly a potential conflict of interest
    inherent in counsel’s simultaneous representation of [Cook and
    Kish] in litigation stemming from the same set of facts.”    Cook at
    ¶ 30, Kish at ¶ 32.   The court wrote:
    Neither the trial court, nor this court can foresee what
    evidence the state will present at trial, or what each of
    the co-defendants may wish to explore prior to trial.
    For instance, it is possible that Kish will change his
    position and claim Appellant committed the charged
    offenses alone. The evidence at trial may more strongly
    incriminate one defendant over the other. It is also
    possible that the evidence could more strongly exculpate
    one defendant over the other. Counsel representing both
    defendants would be precluded from arguing those facts to
    the jury that tend to incriminate one defendant but not
    the other or tend to exculpate one defendant but not the
    other. Additionally, while Kish rejected a plea bargain,
    Appellant may desire to explore potential plea bargains
    with the state rather than go to trial.
    
    Id.
    The Fifth District further noted that, although appellants
    explicitly waived any potential conflict, the trial court could
    properly refuse to accept their waiver.   Cook at ¶ 31, Kish at ¶
    33.   “As in Keenan, nothing in the record suggests that the trial
    court’s decision to refuse the waiver and remove retained counsel
    was unreasonable, arbitrary or unconscionable.   Instead, it is
    clear the court based its decision on the potential for conflict
    and the court’s decision to protect both of the Appellants’
    constitutional rights.”   
    Id.
    11
    SCIOTO, 20CA3935
    {¶14} In another joint representation case, State v. Rivera,
    
    2017-Ohio-8514
    ,3 multiple co-defendants indicated they wanted the
    same attorney to represent them, but the trial court expressed
    concern “about the codefendants’ interests diverging once further
    discovery, plea discussions, and trial preparation began.”      
    Id.
    The Ninth District observed that “neither the trial court nor the
    appellate court can foresee what evidence will be presented at
    trial or what plea deals may be offered by the State and accepted
    by one or more of these individuals.”    Id. at ¶ 12.   Joint
    representation could: (1) preclude counsel from exploring plea
    negotiations and agreements to testify favorable to one and
    prejudicial to another, (2) prevent counsel from challenging the
    admission of evidence prejudicial to one, but perhaps favorable to
    another, and (3) cause counsel to refrain from arguing at
    sentencing the relative involvement and culpability of one by
    minimizing the involvement of another.   Rivera at ¶ 12.
    {¶15} In U.S. v. Brock, 
    501 F.3d 762
     (6th Cir.2007), after the
    government asked about the appropriateness of joint representation,
    the co-defendants sought to waive any conflict.   The district court
    disqualified counsel because the situation was “rife with potential
    3
    The complete citation for Rivera is State v. Rivera, 9th Dist.
    Lorain No. 16CA011057, 16CA011059, 16CA011060, 16CA011061,
    16CA011063, 16CA0011073 and 16CA011075, 
    2017-Ohio-8514
    .
    12
    SCIOTO, 20CA3935
    conflicts of interest.”   Brock at 766.   Although the Sixth Circuit
    noted that the co-defendants’ waivers did not adequately
    acknowledge potential conflicts, the court agreed with the district
    court’s observation that it may be in one client’s best interest to
    plead guilty and testify against the other.   Also, if both
    defendants are found guilty, counsel may be in a position to
    contend that one or the other should receive a lesser sentence.
    
    Id.
       See, also, Serra v. Michigan Dept. of Corrections, 
    4 F.3d 1348
    , 1354 (6th Cir.1994), (defenses of each defendant
    “intrinsically antagonistic.”   
    Id. at 1350-1351
    ). United States v.
    Curcio, 
    680 F.2d 881
    , 887 (2d Cir. 1982)(conflict implications
    include whether to present a defense that helps one defendant more
    than the other; whether to have one defendant testify while other
    remains silent; whether neither defendant testify because one poor
    or vulnerable witness; whether emphasize in summation that certain
    evidence admitted only against (or less compelling against) one
    defendant rather than other); U.S. v. Garner, E.D.Kentucky No. 12-
    CR-65-JMH, 
    2013 WL 99396
     (Jan.7, 2013), fn. 2 (difficulties
    inherent in dual representation because attorney’s ability to give
    best representation to both clients compromised when one defendant
    acts in own best interest and may hurt the other defendant’s
    interests -   also, the defendants desire for solidarity can be
    achieved with separate counsel, and court’s conclusion does not
    13
    SCIOTO, 20CA3935
    foreclose co-defendants opportunity to present a “unified” or
    “united” defense).
    {¶16} Additionally, the Fifth District in Cook described
    conflicts in this manner:
    Potential conflicts that can arise where the same
    attorney represents codefendants can include where both
    of the defendants wish to testify but they have differing
    explanations as to how the relevant events transpired.
    Where one of the defendants wishes to testify while the
    other does not and the silence of one might suggest to
    the jury that he alone is guilty of the crime.
    Additionally, the evidence against one of the defendants
    may be stronger than the evidence against the other and
    comparison of the respective strengths of the evidence
    against the two during plea bargaining or examination of
    witnesses or closing argument would be helpful to the
    defendant faced with the weaker evidence but would be
    harmful to the defendant faced with the stronger
    evidence.
    State v. Cook, 5th Dist. Fairfield No. 17-CA-23, 
    2017-Ohio-7552
    , ¶
    24.
    {¶17} The United States Supreme Court also spoke at length to
    the minefield that trial courts must navigate to predict possible
    conflicts:
    Unfortunately for all concerned, a * * * court must pass
    on the issue whether or not to allow a waiver of a
    conflict of interest by a criminal defendant not with the
    wisdom of hindsight after the trial has taken place, but
    in the murkier pre-trial context when relationships
    between parties are seen through a glass, darkly. * * *
    It is the rare attorney who will be fortunate enough to
    learn the entire truth from his own client, much less be
    fully apprised before trial of what each of the
    Government’s witnesses will say on the stand. A few bits
    [Cite as State v. Johnson, 
    2022-Ohio-1479
    .]
    of unforseen testimony or a single previously unknown or
    unnoticed document may significantly alter the
    relationship between multiple defendants. These
    imponderables are difficult enough for a lawyer to
    assess, and even more difficult to convey by way of
    explanation to a criminal defendant untutored in the
    niceties of legal ethics. * * *
    For these reasons we think the district courts must be
    allowed substantial latitude in refusing waivers of
    conflicts of interest not only in those rare cases where
    an actual conflict may be demonstrated before trial, but
    in the more common cases where a potential for conflict
    exists which may or may not burgeon into an actual
    conflict as the trial progresses.
    Wheat, supra, 
    486 U.S. at 162-163
    , 
    108 S.Ct. 1692
    , 
    100 L.Ed.2d 140
    .
    {¶18} “The United States Supreme Court has definitely
    recognized the authority of a federal district court to disqualify
    chosen defense counsel, over objection and despite waivers of
    conflict of interest, because of actual conflicts of interest or
    serious potential conflicts of interest.”              United States v. Lamar,
    E.D. Kentucky No. 09-82-DLB, 
    2013 WL 12221618
    , (Sept. 20, 2013)
    *10.      “Such discretion is warranted, moreover, because of the
    ‘whipsaw’ nature of waiver of conflict-free representation: ‘If a
    trial court disqualifies counsel, defendant will argue * * * a
    violation of his Sixth Amendment right to counsel of his choice.
    If a trial court refuses to disqualify an attorney, a defendant may
    later attempt to raise an ineffective assistance of counsel claim
    based on conflict of interest, asserting that his waiver was not
    knowingly or voluntarily made.’”              U.S. v. Swafford, 
    512 F.3d 833
    ,
    [Cite as State v. Johnson, 
    2022-Ohio-1479
    .]
    840 (2008), quoting Serra at 1353-1354, citing Wheat, 
    486 U.S. at 161-162
    , 
    108 S.Ct. 1692
    . U.S. v. Mays, 
    69 F.3d 116
    , 121 (6th
    Cir.1995)(district courts given wide latitude to make such
    determinations and decision                   upheld unless ‘arbitrary’ or ‘without
    adequate reasons’).                But see U.S. v. Gebbie, 
    185 F.R.D. 516
     (S.D.
    Ohio 1999) (disqualification not warranted because (1) co-
    defendants voluntarily, knowingly and intelligently waived Sixth
    Amendment right to conflict-free representation, (2) attorney
    steadfastly maintained no conflict exists, (3) attorney invested
    significant time and effort in lengthy and complex case and has a
    high level of knowledge that uniquely qualifies him, and (4) united
    defense is best for co-conspirators.)
    {¶19} In the case sub judice, appellant asserts that because
    both co-defendants have been apprised of potential conflicts and
    have formally waived any conflict, the trial court should have
    denied appellee’s request for disqualification.                   However, as we
    point out above, Wheat “rejected the claim that waivers by all
    affected defendants cure any problems created by the multiple
    representation, noting that courts have an independent interest to
    ensuring that criminal trials are conducted within the ethical
    standards of the profession and that legal proceedings appear fair
    to all who observe them and that various rules of ethics and
    professional conduct impose limitations on multiple representation
    [Cite as State v. Johnson, 
    2022-Ohio-1479
    .]
    of clients.”           State v. Keenan, 8th Dist. Cuyahoga No. 89554, 2008-
    Ohio-807, ¶ 27.             Thus, courts must look beyond a waiver to
    determine if dual representation is appropriate.              Here, we agree
    with the trial court’s conclusion that potential conflicts of
    interest exist with the dual representation of appellant and her
    co-defendant.            A trial court must be allowed “substantial latitude
    in refusing waivers of conflicts of interest not only * * * where
    an actual conflict may be demonstrated before trial, but in the
    more common cases [such as the case at bar] where a potential for
    conflict exists which may or may not burgeon into an actual
    conflict * * *.”              Wheat, 486 U.S at 163, 108 S.Ct.1692, 
    100 L.Ed.2d 140
    .      Here, the trial court observed that, although the co-
    defendants argue that the eventual suppression of evidence would
    result in this matter not proceeding to trial, this outcome is not
    a certainty.           Furthermore, unforeseen events, including
    unanticipated testimony or other evidence, could unexpectedly and
    quickly shift the relationship between the co-defendants.               The
    trial court is also properly concerned about the possibility that
    one defendant may contend that her co-defendant alone committed the
    charged offenses.               As the trial court pointed out: (1) the evidence
    adduced at trial could more strongly exculpate or inculpate one or
    the other co-defendant, and could place counsel in the position of
    arguing one client may have greater culpability than the other
    [Cite as State v. Johnson, 
    2022-Ohio-1479
    .]
    client, and (2) the plea agreement process, including the reduction
    of the seriousness of an offense in exchange for testimony, could
    invite a potential conflict of interest in the dual representation
    of both defendants.4                As the Wheat court pointed out, trial courts
    should have substantial latitude to refuse waivers of conflicts of
    interest, not only in cases when an actual conflict can be
    demonstrated prior to trial, but also in situations when the
    potential for conflict exists that may result in an actual conflict
    once a trial begins.                 Here, in light of the nature of the traffic
    stop and discovery of controlled substances, we believe that it is
    certainly foreseeable that conflicts between the co-defendants may
    arise throughout this proceeding.
    {¶20} Accordingly, in the case at bar we do not believe that
    the trial court’s disqualification of counsel constitutes an abuse
    of discretion.             Therefore, we hereby overrule appellant’s
    assignments of error and affirm the trial court’s judgment.
    JUDGMENT AFFIRMED.
    4
    Additionally, a comment to the Ohio Rules of Professional
    Conduct is particularly salient in the case sub judice: “The
    potential for conflict of interest in representing multiple
    defendants in a criminal matter is so grave that ordinarily a
    lawyer should decline to represent more than one co-defendant.”
    Prof.Cond.R. 1.7, Comment 15.
    [Cite as State v. Johnson, 
    2022-Ohio-1479
    .]
    JUDGMENT ENTRY
    It is ordered that the judgment be affirmed.           Appellee shall
    recover of appellant the costs herein taxed.
    The Court finds there were reasonable grounds for this appeal.
    [Cite as State v. Johnson, 
    2022-Ohio-1479
    .]
    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.
    A certified copy of this entry shall constitute that mandate
    pursuant to Rule 27 of the Rules of Appellate Procedure.
    Smith, P.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
    commences from the date of filing with the clerk.