State v. Johnson , 2022 Ohio 1479 ( 2022 )

[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.”
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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.
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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.
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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
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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
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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
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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.
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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
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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
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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.
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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
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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.