State v. Rivera , 2017 Ohio 8514 ( 2017 )

[Cite as State v. Rivera, 2017-Ohio-8514.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. Nos. 16CA011057
16CA011059
Appellee 16CA011060
16CA011061
v. 16CA011063
16CA011073
ANGEL RIVERA 16CA011075
ELIEZER CLAUDIO
DAVID PENA
RUTH ROJAS-AVELO
RAFAEL ESQUILIN APPEAL FROM JUDGMENT
ROLANDO CARTER ENTERED IN THE
JONATHON BARNETTE COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Appellants CASE Nos. 16-CR-093520
16-CR-093559
16-CR-093831
16-CR-093558
16-CR-093557
16-CR-093675
16-CR-093560
DECISION AND JOURNAL ENTRY
Dated: November 13, 2017
TEODOSIO, Judge.
{¶1} Appellants, Angel Rivera, Eliezer Claudio, David Pena, Ruth Rojas-Avelo, Rafael
Esquilin, Rolando Carter, and Jonathon Barnette (“Clients”) appeal from an order disqualifying
their retained counsel, attorneys Jack Bradley and Michael Stepanik, in the Lorain County Court
of Common Pleas. We affirm.
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I.
{¶2} Following an investigation into a drug distribution network, thirteen individuals
were charged with multiple felonies, including engaging in a pattern of corrupt activity and
conspiracy to commit drug trafficking, felonies of the first degree. Ten of those individuals
retained the services of Bradley & Stepanik Co., LPA, for legal representation. The State filed a
motion to disqualify counsel based on Prof.Cond.R. 1.7, which governs conflicts of interest
involving current clients. The trial court held at least two hearings on the matter and
subsequently granted the State’s motion. Clients appealed the trial court’s order and filed nearly
identical merit briefs. This Court consolidated their appeals because they arose from the same
order.
{¶3} Clients now appeal from the trial court’s order disqualifying trial counsel and
raise one assignment of error for this Court’s review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT DISQUALIFIED DEFENDANT[S’]
COUNSEL OF CHOICE, IN VIOLATION OF THE SIXTH AMENDMENT OF
THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10, OF
THE OHIO CONSTITUTION.
{¶4} In their sole assignment of error, Clients argue that the trial court erred in
disqualifying attorneys Jack Bradley and Michael Stepanik as their trial counsel in this case. We
disagree.
{¶5} We first note that a pretrial ruling removing a criminal defendant’s retained
counsel of choice is a final appealable order. State v. Chambliss, 128 Ohio St.3d 507, 2011-
Ohio-1785, ¶ 27.
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{¶6} The Sixth Amendment to the United States Constitution and Article I, Section 10,
of the Ohio Constitution guarantee a criminal defendant the right to counsel for his defense.
State v. Miller, 9th Dist. Summit No. 27048, 2015-Ohio-279, ¶ 8. “‘[A]n element of this right is
the right of a defendant who does not require appointed counsel to choose who will represent
him.’” Id., quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006). The right to
counsel also includes “a correlative right to representation that is free from conflicts of interest.”
Wood v. Georgia, 450 U.S. 261, 271 (1981). Joint representation is not a per se violation of the
constitutional right to counsel, and multiple defendants may enjoy certain advantages from joint
representation, as mounting a common defense often gives strength against a common attack.
Holloway v. Arkansas, 435 U.S. 475, 482-483 (1978). “A court commits structural error when it
wrongfully denies a defendant his counsel of choice, so a defendant need not demonstrate further
prejudice.” Miller at ¶ 8. “‘[T]he erroneous deprivation of a defendant’s choice of counsel
entitles him to an automatic reversal of his conviction.’” Id., quoting Chambliss at ¶ 18.
{¶7} A defendant’s constitutional right to the counsel of his choice, however, is not
unqualified, but is “circumscribed in several important respects.” Miller at ¶ 9, quoting Wheat v.
United States, 486 U.S. 153, 159 (1988). “‘A defendant does not have the right to be represented
by (1) an attorney he cannot afford; (2) an attorney who is not willing to represent the defendant;
(3) an attorney with a conflict of interest; or (4) an advocate (other than himself) who is not a
member of the bar.’” Miller at ¶ 9, quoting State v. Howard, 5th Dist. Stark No. 2012CA00061,
2013-Ohio-2884, ¶ 39. Therefore, the constitutional right to counsel of choice is “only a
presumptive right to employ * * * chosen counsel.” (Emphasis sic.) State v. Keenan, 81 Ohio
St.3d 133, 137 (1998). “‘That presumption may be overcome not only by a demonstration of
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actual conflict but by a showing of a serious potential for conflict.’” (Emphasis added.) Id.,quoting Wheat at 164.
{¶8} Trial courts retain a “‘wide latitude in balancing the right to counsel of choice
against the needs of fairness * * * and against the demands of [their] calendar[s].’” Miller at ¶ 9,
quoting Gonzalez-Lopez at 152. They have an “‘independent interest in ensuring that criminal
trials are conducted within the ethical standards of the profession and that legal proceedings
appear fair to all who observe them.’” Gonzalez-Lopez at 152, quoting Wheat at 160. Thus,
“[t]rial courts have the inherent authority to regulate the conduct of attorneys, including the
disqualification of attorneys in accordance with the Ohio Rules of Professional Conduct.”
Harold Pollock Co., LPA v. Bishop, 9th Dist. Lorain No. 12CA010233, 2014-Ohio-1132, ¶ 7.
See also Avon Lake Mun. Util. Dept. v. Pfizenmayer, 9th Dist. Lorain No. 07CA009174, 2008-
Ohio-344, ¶ 13. They enjoy broad discretion when considering motions to disqualify counsel
and, therefore, “‘[w]e review a trial court’s determination regarding a motion to disqualify
counsel for an abuse of discretion.’” In re E.M.J., 9th Dist. Medina No. 15CA0098-M, 2017-
Ohio-1090, ¶ 5, quoting Pfizenmayer at ¶ 13. “The term ‘abuse of discretion’ connotes more
than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an
abuse of discretion standard, a reviewing court is precluded from simply substituting its own
judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶9} In the case sub judice, the State filed a motion to disqualify attorneys Bradley and
Stepanik from representing ten defendants in the same criminal case, pursuant to Prof.Cond.R.
1.7. Prof.Cond.R. 1.7(a) provides that representation of a client creates a conflict of interest if
either:
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(1) the representation of that client will be directly adverse to another current
client; [or]
(2) there is a substantial risk that the lawyer’s ability to consider, recommend, or
carry out an appropriate course of action for that client will be materially limited
by the lawyer’s responsibilities to another client * * *.
(Emphasis sic.) The State argued at the second hearing that it intended to make a plea offer to at
least one of the Clients. Discovery also appeared to be substantial, as the prosecutor stated that it
took three hours to download all of the discovery onto a single flash drive. Attorney Bradley
stated during the first hearing: “[W]e’ve got thousands, if not close to five thousand, [phone]
calls that have to be gone through and reviewed with clients.” Clients argued at the hearings that
they had no intention to testify at trial or engage in plea negotiations with the State.
{¶10} The parties and the trial court all agreed that no actual conflict existed prior to the
court’s ruling on this matter. An actual conflict is “‘a conflict of interest that adversely affects
counsel’s performance.’” State v. Sibley, 9th Dist. Lorain No. 16CA010908, 2017-Ohio-7015, ¶
9, quoting Mickens v. Taylor, 535 U.S. 162, 172, fn. 5 (2002). However, the trial court stated in
its entry that “the potential for a conflict to arise * * * is of great concern * * *.” A possible
conflict exists if the “‘interests of the defendants may diverge at some point so as to place the
attorney under inconsistent duties.’” Sibley at ¶ 8, quoting State v. Dillon, 74 Ohio St.3d 166,
168 (1995), quoting Cuyler v. Sullivan, 446 U.S. 335, 356, fn. 3 (1980) (Marshall, J., concurring
in part and dissenting in part). “[A] lawyer represents conflicting interests ‘when, on behalf of
one client, it is his duty to contend for that which duty to another client requires him to oppose.’”
Sibley at ¶ 8, quoting State v. Gillard, 78 Ohio St. 3d 548, 553 (1997), quoting State v. Manross,
40 Ohio St.3d 180, 182 (1988).
{¶11} The trial court inquired of Clients in open court as to the potential conflicts of
interest in this case, but Clients nonetheless still wished to be represented by attorneys Bradley
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and Stepanik. Although Clients represented to the court that they were unified and had no
interest in testifying or engaging in plea negotiations, the court stated in its entry that it was
concerned about Clients’ interests diverging once further discovery, plea discussions, and trial
preparation began. The court specifically quoted Prof.Cond.R. 1.7, Comment 15, which states:
“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.”
{¶12} Neither the trial court nor this 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. See State v. Kish, 5th Dist. Fairfield No. 17-CA-22, 2017-Ohio-7551, ¶ 32. See also
State v. Cook, 5th Dist. Fairfield No. 17-CA-23, 2017-Ohio-7552, ¶ 30. Although Clients
asserted that they will not engage in plea negotiations or testify at trial, any one or more of them
could certainly change their minds at a later date, and the evidence could potentially incriminate
or exculpate certain individuals more than others. See id. The State asserted that plea offers
were forthcoming to one or more of Clients and the evidence provided in discovery appeared to
be quite substantial. Joint representation of these ten Clients could possibly preclude counsel
from exploring plea negotiations and agreements to testify that would be favorable to some
Clients and prejudicial to others. See Holloway, 435 U.S. at 490. Joint representation could also
prevent counsel from challenging the admission of evidence that is prejudicial to some Clients
but perhaps favorable to others. See id. Counsel could also refrain from arguing the relative
involvement and culpability of some Clients at sentencing by minimizing the involvement of
some and emphasizing the involvement of others. See id. Examples of possible conflicts like
this can be readily multiplied. See id. Furthermore, as attorneys Bradley and Stepanik were
representing ten different defendants in the same litigation, the risk of a possible conflict arising
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is undoubtedly more serious and substantial in this case than in other cases involving a far fewer
number of defendants represented by the same counsel.
{¶13} After a review of the record, we conclude that the trial court did not abuse its
discretion in granting the State’s motion to disqualify attorneys Bradley and Stepanik in this
matter, as there existed a substantial risk of the attorneys’ ability to consider, recommend, or
carry out an appropriate course of action for all ten defendants being materially limited by their
responsibilities to their remaining clients in this case.
{¶14} Accordingly, Clients’ sole assignment of error is overruled.
III.
{¶15} Clients’ sole assignment of error is overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellants.
THOMAS A. TEODOSIO
FOR THE COURT
SCHAFER, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
JACK W. BRADLEY and MICHAEL E. STEPANIK, Attorney at Law, for Appellants.
DENNIS P. WILL, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.