State v. Loman , 2014 Ohio 1570 ( 2014 )

[Cite as State v. Loman, 2014-Ohio-1570.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-13-17
v.
ZACCORIA J. LOMAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2012-CR-0169
Judgment Reversed, Sentence Vacated and Cause Remanded
Date of Decision: April 14, 2014
APPEARANCES:
Stephen A. Goldmeier for Appellant
Edwin A. Pierce for Appellee
Case No. 2-13-17
SHAW, J.
{¶1} Defendant-appellant, Zaccoria J. Loman, appeals the Auglaize County
Court of Common Pleas’ “journal entry – orders on sentence” following a
negotiated guilty plea to one charge of breaking and entering in violation of R.C.
2911.13(A) and one charge of drug possession in violation of R.C. 2925.11(A),
(C)(1)(a).
{¶2} Upon accepting the negotiated plea, the trial court released Loman on
bond pending the preparation of an updated presentence investigation report
(“PSI”) for later sentencing. One of the conditions of the bond required Loman to
“contact his attorney once each week.”
{¶3} At the sentencing hearing, the trial court questioned whether Loman
had failed to contact his attorney once each week and thereby violated this
condition of his bond. The trial court then directed Loman’s counsel to provide
the court with the information necessary to answer this question. Relying solely
upon representations of defense counsel, the testimony of defense counsel’s office
receptionist, and Loman, the trial court found that Loman had failed to contact his
attorney once each week and therefore had violated the conditions of his bond.
The trial court then sentenced Loman to a 12-month concurrent prison term on the
two charges.
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{¶4} Pursuant to R.C. 2929.13(B)(1)(a) and (b) in effect at the time, Loman
was required to receive community control for these offenses unless certain
statutory exceptions applied. The only statutory exception applicable here was the
one for violation of “a term of the conditions of bond as set by the court.” R.C.
2929.13(B)(1)(b)(iii). Thus, in this case, the trial court could not have imposed a
prison sentence without finding the bond violation. Because the only evidence in
the record allowing a prison sentence instead of community control was provided
by his own counsel, Loman now appeals. For the reasons that follow, we reverse.
{¶5} This case stems from an August 10, 2012 incident in which Loman
accompanied a friend, Wesley Elam, who broke into a building, stole a generator,
and then sold the generator. (Mar. 13, 2013 Tr. at 15-16). Loman admitted to
receiving at least a “hit” of heroin for his assistance in the theft, and during their
investigation into the incident, authorities located a foil packet in Loman’s wallet
containing methylenedioxypyrovalerone, or MDPV. (Id. at 16).
{¶6} On September 7, 2012, the Auglaize County Grand Jury indicted
Loman on Count One of breaking and entering in violation of R.C. 2911.13(A), a
fifth-degree felony, and Count Two of theft in violation of R.C. 2913.02(A)(1), a
first-degree misdemeanor. (Doc. No. 1).
{¶7} On October 16, 2012, Loman appeared before the trial court for the
purpose of setting bond. (Oct. 16, 2012 Tr. at 6-7); (Doc. Nos. 10, 12). Finding
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Loman indigent, the trial court appointed the public defender to represent him.
(Oct. 16, 2012 Tr. at 5). (See also Doc. Nos. 17-18). The trial court released
Loman on his own recognizance and ordered seven special conditions for bond.
The only condition relevant to this case is condition number four, which provides
as follows:
4. The Defendant shall contact his attorney once each week;
(Doc. No. 10); (Oct. 16, 2012 Tr. at 7).
{¶8} On October 17, 2012 Loman entered pleas of not guilty to both counts
of the indictment. (Oct. 17, 2012 Tr. at 3); (Doc. No. 20). The trial court
continued Loman’s bond. (Id. at 5); (Id.). On November 26, 2012, Loman filed a
motion for intervention in lieu of conviction pursuant to R.C. 2951.041, requesting
that the trial court order an assessment and a PSI to determine his eligibility for
intervention. (Doc. No. 35).
{¶9} On December 7, 2012, the trial court granted Loman’s requests for an
assessment and a PSI. (Doc. No. 36). The trial court ordered that Loman arrange
for the assessment by a mental health professional to be completed and delivered
to the trial court within a month of December 7, 2012. (Id.). The trial court also
ordered that Loman contact the Auglaize County Pre-Sentence Investigator
immediately to arrange for an interview. (Id.).
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{¶10} On February 13, 2013, after receiving the PSI and a document from
the assessment provider, the trial court held a hearing on Loman’s motion for
intervention in lieu of conviction. (Feb. 13, 2013 Tr. at 3); (Doc. No. 41). After
Loman’s counsel conceded that one of the required factors under R.C. 2951.041
was not present, the trial court denied Loman’s intervention request. (Id. at 3-4);
(Id.). The trial court continued Loman’s bond. (Doc. No. 41).
{¶11} On March 6, 2013, plaintiff-appellee, State of Ohio, filed a bill of
information charging Loman with one count of possession of drugs in violation of
R.C. 2925.11(A), (C)(1)(a), a fifth-degree felony. (Doc. No. 48).
{¶12} On March 15, 2013, the parties filed a negotiated plea agreement.
(Doc. No. 53). As part of the plea agreement, Loman agreed to waive prosecution
by indictment, and he agreed to plead guilty to Count One of the indictment and to
the bill of information. (Id.). The State agreed to ask for leave of the trial court to
enter a nolle prosequi as to Count Two of the indictment. (Id.).
{¶13} The trial court held a change-of-plea hearing on March 13, 2013.
(Mar. 13, 2013 Tr. at 3). At the hearing, Loman pled guilty to Count One of the
indictment, waived prosecution by indictment as to the drug-possession count, and
pled guilty to the bill of information. (Id. at 11, 25); (Doc. No. 54). The trial court
accepted Loman’s pleas and found him guilty of both charges. (Id. at 15, 27);
(Id.). The State requested leave to enter a nolle prosequi as to Count Two of the
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indictment, which the trial court granted. (See id. at 3); (Id.). The trial court
dismissed Count Two of the indictment upon completion of sentencing. (Doc. No.
54). The trial court also sustained Loman’s request for an updated PSI and
ordered the PSI updated by the “Auglaize County PSI Writer” before sentencing.
(Mar. 13, 2013 Tr. at 27, 30-31); (Doc. Nos. 54, 56). The trial court did not
explicitly order Loman to cooperate with the preparation of the updated PSI but
did tell Loman at the change-of-plea hearing, “go talk to [the PSI writer] and
update her on it, everything else including your work, including your work slips,
like your pay stubs, including last year’s income tax.” (Mar. 13, 2013 Tr. at 31).
The trial court continued Loman’s bond pending sentencing. (Id. at 30); (Doc. No.
54).
{¶14} On May 2, 2013, based on a report of the presentence investigator,
the trial court issued a journal entry revoking Loman’s bond and issuing a bench
warrant for his arrest. (Doc. No. 59). Attached to the journal entry was an April
19, 2013 memorandum from the PSI writer to the State, with the trial court judge
copied. (Id.) The memorandum indicated that Loman “has not reported for his
scheduled PSI interview appointments with this writer,” detailed the PSI writer’s
contacts and attempted contacts with Loman, and concluded that “[a]s of
4/19/2013, the offender, Zaccoria Loman, has failed to contact this office to
proceed with his Presentence Investigation.” (Id.). Among the contacts detailed
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by the PSI writer was her notification of Loman’s counsel on April 2, 2013 of his
“non-compliance with the Court’s order.” (Id.). In its bench warrant, the trial
court cited Loman’s failure to cooperate in the completion of the update to his PSI:
“It appearing to the Court this May 1, 2013, that one ZACCORIA J. LOMAN * *
* has failed to complete the Pre-Sentence Investigation.” (Doc. No. 63).
{¶15} The trial court held a sentencing hearing on May 8, 2013. (May 8,
2013 Tr. at 3); (Doc. No. 64). The morning of the hearing, Loman surrendered to
the sheriff’s deputy; however, at the hearing, the trial court noted that Loman
“appeared for sentencing as it had been scheduled” and recalled the bench warrant
as moot. (May 8, 2013 Tr. at 3-4). Loman’s counsel requested that the trial court
continue the sentencing hearing so that the PSI could be updated, with Loman to
remain in custody until he completed his interview with the PSI writer and then to
be released on bond pending completion of the updated PSI. (Id. at 4). In the
alternative, Loman’s counsel requested that the trial court use the February 12,
2013 PSI so that it could consider sentencing Loman to community control. (Id. at
5). The trial court said it would use the February 12, 2013 PSI and proceed to
sentencing. (Id.).
{¶16} At the sentencing hearing, pursuant to the plea agreement, the State
recommended that Loman be sentenced to community control. (Id. at 6). The trial
court then questioned the parties concerning whether the stolen generator was
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recovered and returned to the owner. (Id. at 6-9). When it turned to Loman’s
counsel for mitigation, the trial court said that, from its understanding, Loman
failed to contact his attorney once each week and that it “wanted to sort of invite *
* * litigation and/or commentary” on that issue and “want[ed] it presented as to
what dates of contact” Loman had with his attorney’s office. (Id. at 9-10).
Because no one seemed to be able to provide the precise information the trial court
was requesting, Loman’s counsel had his office receptionist come to court and
testify concerning the extent to which Loman contacted the office. (Id. at 11-15).
Loman then also addressed the trial court. (Id. at 15-24).
{¶17} Finding that Loman had violated his bond by failing to contact his
attorney, the trial court sentenced Loman to 12 months imprisonment for Count
One of the indictment, breaking and entering, and 12 months imprisonment for the
bill of information, possession of drugs. (Id. at 27); (Doc. No. 64). The trial court
ordered that Loman serve both sentences of imprisonment concurrently. (Id.);
(Id.). The trial court ordered that Loman pay restitution of $60.00 to a victim in a
separate case that the State agreed to dismiss as part of the negotiated plea
agreement, and that he pay court costs and a $200 fine reflecting a portion of the
sale price of the stolen generator. (Id. at 28); (Id.). Finally, the trial court
suspended Loman’s operator’s license for three years and ordered him to provide a
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DNA sample. (Id. at 29, 34); (Id.). The trial court filed its “journal entry – orders
on sentence” the afternoon of the sentencing hearing. (Doc. No. 64).
{¶18} The trial court appointed the state public defender for purposes of
appeal of Loman’s sentence. (May 8, 2013 Tr. at 30). Loman’s new counsel filed
a notice of appearance on May 23, 2013. (Doc. No. 80).
{¶19} Loman filed a notice of appeal on May 23, 2013. (Doc. No. 81). He
raises one assignment of error for our review.
Assignment of Error
Zaccoria Loman received ineffective assistance of counsel when,
but for his counsel’s having acted in direct contravention of his
interests, Mr. Loman would have been subject to a community
control sanction under R.C. 2929.13. (May 8, 2013 Sentencing
Hearing Transcript, pp. 11, 27; May 8, 2013 Journal Entry).
{¶20} In his assignment of error, Loman argues that he was denied
effective assistance of counsel when his trial counsel called trial counsel’s
receptionist to testify at the sentencing hearing. The receptionist, who was not
cross-examined, testified to only two known contacts that Loman made with trial
counsel’s office in the eight weeks between the change-of-plea and sentencing
hearings. Loman argues that the receptionist’s testimony, which established that
Loman violated a condition of his bond, allowed the trial court to impose a
sentence of imprisonment pursuant to R.C. 2929.13(B)(1)(b)(iii), when without
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the bond violation, the trial court would have been required to sentence Loman to
community control pursuant to R.C. 2929.13(B)(1)(a).
{¶21} A defendant asserting a claim of ineffective assistance of counsel
must establish: (1) the counsel’s performance was deficient or unreasonable under
the circumstances; and (2) the deficient performance prejudiced the defendant.
State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052 (1984).
{¶22} In order to show counsel’s conduct was deficient or unreasonable,
the defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies
prompted by reasonable professional judgment. Strickland, 466 U.S. at 687.
Counsel is entitled to a strong presumption that all decisions fall within the wide
range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673,
675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not
generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558
(1995). Rather, the errors complained of must amount to a substantial violation of
counsel’s essential duties to his client. See State v. Bradley, 42 Ohio St.3d 136,
141-142 (1989), quoting State v. Lytle, 48 Ohio St.2d 391, 396 (1976).
{¶23} Prejudice results when “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
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different.” Id. at 142, citing Strickland, 466 U.S. at 691. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Id.; Strickland, 466 U.S. at 694.
{¶24} In United States v. Cronic, “the United States Supreme Court created
a narrow exception to the Strickland requirements, when it determined that
prejudice should be presumed in ‘circumstances that are so likely to prejudice the
accused that the cost of litigating their effect in a particular case is unjustified.’”
(Emphasis added.) State v. Drake, 8th Dist. Cuyahoga No. 93761, 2010-Ohio-
1065, ¶ 8, quoting United States v. Cronic, 466 U.S. 648, 658 (1984). “These
circumstances include ‘the complete denial of counsel * * * at a critical stage of
[the accused’s] trial.’” State v. Harris, 6th Dist. Erie No. E-02-019, 2003-Ohio-
5190, ¶ 32, quoting Cronic at 659. Other circumstances include when “counsel
entirely fails to subject the prosecution’s case to meaningful adversarial testing”
and when the accused has been “denied the right of effective cross-examination.”
Cronic at 659. The Supreme Court explained that even a fully competent attorney
cannot provide effective representation in circumstances like those:
Circumstances of that magnitude may be present on some
occasions when although counsel is available to assist the
accused during trial, the likelihood that any lawyer, even a fully
competent one, could provide effective assistance is so small that
a presumption of prejudice is appropriate without inquiry into
the actual conduct of the trial.
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Id. at 659-660. See also State v. Jackson, 8th Dist. Cuyahoga No. 92365, 2009-
Ohio-4995, ¶ 2.
{¶25} Loman argues that by calling trial counsel’s receptionist at the
sentencing hearing, trial counsel ceased functioning as Loman’s counsel. Loman
argues that this resulted in him being denied cross-examination of the receptionist.
For these reasons, Loman argues he was denied effective assistance of counsel.
Although he does not say so explicitly, Loman appears to argue that his case falls
under the narrow circumstances outlined by the Court in Cronic, effectively
establishing a presumption of prejudice under the second prong of Strickland’s
two-part test. For the reasons that follow, we agree that this case should be
governed by the Cronic decision.
{¶26} Key to our application of Cronic is what took place at the sentencing
hearing. Because it is critical to the unique circumstances of this case, we first
note the statute under which the trial court sentenced Loman. Loman pled guilty
to two fifth-degree felonies. The version of R.C. 2929.13 in effect at the time of
Loman’s offenses,1 therefore, required that the trial court sentence Loman to “a
community control sanction of at least one year’s duration” so long as the three
factors found in R.C. 2929.13(B)(1)(a) applied and so long as one of the four
1
While R.C. 2929.13(B)(1) has been amended since Loman’s offenses, the amendments are not subject to
application under R.C. 1.58 because they do not reduce the sentence to which Loman is subject; therefore,
we apply the version of R.C. 2929.13 in effect at the time of Loman’s offenses. See R.C. 1.58(B); State v.
Rose, 3d Dist. Marion No. 9-05-43, 2006-Ohio-3071, ¶ 9, fn. 1, citing State v. Brooks, 163 Ohio App.3d
241, 2005-Ohio-4728, ¶ 15 (4th Dist.). Loman makes no argument to the contrary.
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factors found in R.C. 2929.13(B)(1)(b) did not apply. R.C. 2929.13(B), as
amended by Am.Sub.H.B. No. 262 (2012).2 See also State v. Spencer, 3d Dist.
Hardin Nos. 6-12-15 and 6-12-16, 2013-Ohio-137, ¶ 21. If one of the factors
found in R.C. 2929.13(B)(1)(b) did apply, the trial court had “discretion to impose
a prison term.” R.C. 2929.13(B)(1)(b). See also Spencer at ¶ 21. One of the
factors under R.C. 2929.13(B)(1)(b), and the only factor applicable to this case,
is: “[t]he offender violated a term of the conditions of bond as set by the court.”
R.C. 2929.13(B)(1)(b)(iii). See also Spencer at ¶ 21.3
{¶27} Although it is not entirely clear from the record how the trial court
became aware of this possibility, a review of the transcript from the sentencing
hearing reveals that the trial court suspected Loman had violated his bond by not
contacting his attorney once each week between the March 13, 2013 change-of-
plea hearing and the May 8, 2013 sentencing hearing. In any event, the trial court
directed Loman’s counsel to provide the court with whatever information was
necessary to answer the question:
[Trial Court]: [Trial counsel], in mitigation of the imposition
of sentence and then I do have a question for
the Defendant and I’ll let you know what it’s
gonna be in advance, [trial counsel], so you
might advise it. The Defendant, from my
2
Subsequent references to R.C. 2929.13 in this opinion are to the version as amended by Am.Sub.H.B. No.
262 (2012).
3
For clarification, we note that while it was clear that Loman also failed to properly keep in contact with
those responsible for preparing his PSI, cooperation with the PSI process was never made a specific
condition of bond. As a result, Loman’s failure to cooperate with the PSI process did not constitute a bond
violation rendering Loman eligible for prison in this case pursuant to R.C. 2929.13(B)(1)(b)(iii).
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understanding, failed to keep in contact with
your office at least each week and sort of
disappeared off the face of the earth for
awhile, from the time of his plea change until
now. And there was a document filed which
lead [sic] to the bench warrant. And I say that
because it’s my understanding based upon that
activity of the Defendant from date of the plea
change until now that in various ways and
including his failure to contact your office and
failure to participate in the PSI process, that
he violated conditions of his bond. So I
encourage you to address that at some point in
time and so I wanted to sort of invite that
litigation and/or commentary.
[Trial Counsel]: Well, Your Honor, again my observation is the
fact that he did not keep his appointment with
the PSI investigator would not constitute a
violation of his bond.
[Trial Court]: Well, his failure to contact you once a week
would.
[Trial Counsel]: That could be and I guess that puts me in an
interesting position then. Maybe I need to call
my staff up here to give testimony.
[Trial Court]: No.
[Trial Counsel]: Can I have an adjournment and I’ll bring my
office manager up to do that.
[Trial Court]: The report from the PSI writer, which was
attached to the motion you had in front of
you?
[Trial Counsel]: Yes. And I don’t see nothing in there that
specifically says that he failed to contact us, if
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you’re referring to the memorandum of [the
PSI writer], at least the way I read it.
[Trial Court]: Notified your office on April 2, 2013. I’m
going to want it presented as to what dates of
contact he had with your office? [sic]
[Trial Counsel]: Well, I won’t be able to provide the Court
that. My office manager might. I need an
adjournment to have her come up.
[Trial Court]: Court will be in brief recess. Let me know
when you’re ready.
(Emphasis added.) (May 8, 2013 Tr. at 9-10).
{¶28} The trial court reconvened, and trial counsel called his office
receptionist, who was sworn in and testified that she had reviewed Loman’s entire
case file before testifying. (Id. at 11-12). She identified one exhibit during her
testimony—a pink “while you were out” slip of paper documenting a message that
Loman left with the receptionist for his counsel on April 29, 2013. (Id. at 13, D’s
Ex. A). She testified that this one slip was the only “while you were out” slip in
Loman’s file postdating March 13, 2013; however, she testified that Loman had
also contacted the office that morning, and that contact was not documented on a
“while you were out” slip. (Id. at 12-14). The receptionist testified that, in all,
Loman contacted the office twice between March 13, 2013 and May 8, 2013. (Id.
at 11-15). During the receptionist’s testimony, much of the questioning was
conducted by the trial court. (See id.).
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{¶29} After Loman’s trial counsel’s office receptionist testified, Loman’s
trial counsel allowed Loman to testify, ostensibly in order to identify at least one
more contact with trial counsel’s office:
[Trial Counsel]: Mr. Loman, you heard the testimony from [the
receptionist]. Were you in contact with our
office at any other times?
[Loman]: I’m not saying,– I don’t know. I think one (1)
more time because [the PSI writer] had gotten
a hold of your office about the PSI and you
guys contacted me like a week, the week before
that pink slip was made or maybe two (2)
weeks before. It was either a week or two (2)
weeks. There was one (1) other time. I don’t
know whether I got a record of it, but I’m
pretty sure I deleted the voice mail that you
guys left me because I returned you guys’ [sic]
call.
[Trial Counsel]: So it would be your position that there was at
least one (1) more time?
[Loman]: Yeah.
(Id. at 16).
{¶30} Loman also testified that he was unable to assist in the completion of
his updated PSI because of childcare issues, his work schedule, and his cell phone
service being discontinued because he did not pay his bill. (Id. at 16-21).
Loman’s trial counsel asked him to explain to the trial court why he thought he
was a good candidate for community control. (Id. at 23). Loman said that he was
sorry for not cooperating in the completion of his updated PSI; he had been an
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upstanding citizen before he turned 25 two years ago; he had a son and shared
parenting time; and, he had been trying to work full time. (Id. at 23-24). The trial
court then questioned Loman about his criminal history. (Id. at 24-27).
{¶31} After hearing from Loman, the trial court sentenced him to, among
other things, 12 months imprisonment for Count One of the indictment, breaking
and entering, and 12 months imprisonment for the bill of information, possession
of drugs, to be run concurrently. (Id. at 27). Notably, the trial court specifically
stated that its sentence in this regard was “based upon the Defendant’s violation
of his bond and noncompliance with conditions * * *.” (Emphasis added.) (Id.).
{¶32} After the trial court sentenced Loman, the following exchange took
place between the trial court and Loman’s trial counsel. In the exchange, Loman’s
trial counsel expressed concerns over his perceived involvement in the trial court’s
sentencing Loman to imprisonment rather than community control:
[Trial Court]: Now, do you have a request with respect to
appointed counsel for an appeal?
[Trial Counsel]: I have a conflict of interest since my office was
involved in the sentencing and led to the basis
for the Court being allowed to send him to
prison.
***
Well, Your Honor, I have a highly problematic
position you’re putting me in because the way
I interpret what happened this morning, the
Court to be able to find the Defendant is
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eligible to be sent to prison had to find that he
violated conditions of bond, and our office was
instrumental in making that finding, and I
believe, therefore, I have a direct conflict of
interest. And the fact that he now is in prison
and I then will be asking the Court to release
him from prison would further involve that
conflict. So I don’t think in any shape or form
we should be involved in this case from this
point on.
[Trial Court]: Well, I disagree on the following basis: I
allowed you to put on whatever you wanted to
put on from your office. But all I had to do
was ask the Defendant, which was what I was
gonna do, was ask the Defendant what dates
he contacted you and he would have told me
because he doesn’t have the Fifth Amendment
right at that point in terms of sentencing. He
would have told me the dates that he contacted
you, which were basically two (2) or three (3)
over the eight (8) weeks necessary.
(Id. at 30-32).
{¶33} In sum, it is clear that the trial court directed Loman’s trial counsel to
present information, evidence, or testimony at the sentencing hearing that was
adverse to Loman. Specifically, the adverse testimony confirmed that Loman
violated the condition of his bond requiring that he contact his attorney once each
week, which satisfied one of the factors under R.C. 2929.13(B)(1)(b) that
triggered the trial court’s discretion to impose prison rather than community
control. See R.C. 2929.13(B)(1)(b)(iii). These circumstances are like those
described in Cronic, in which “the likelihood that any lawyer, even a fully
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competent one, could provide effective assistance is so small that a presumption of
prejudice is appropriate without inquiry into the actual conduct of the trial.” 466
U.S. at 658-659. Even Loman’s trial counsel recognized the “highly problematic
position” in which the trial court put him. (May 8, 2013 Tr. at 31).
{¶34} Specifically, we conclude that two of the circumstances described in
Cronic were present in this case. First, Cronic applies to the complete denial of
counsel at a “critical stage.” Cronic at 659. “Sentencing is a ‘critical stage’ of a
criminal proceeding.” Jackson, 2009-Ohio-4995, at ¶ 2, citing Gardner v.
Florida, 430 U.S. 349, 358, 97 S.Ct. 1197 (1977). At the moment Loman’s
defense counsel presented testimony adverse to his client, he ceased functioning as
Loman’s counsel. Therefore, Loman was denied counsel at sentencing—a
“critical stage” of his criminal proceeding.
{¶35} Second, Loman was left without an advocate to cross-examine
Loman’s counsel’s office receptionist, and the denial of “the right of effective
cross-examination” is a circumstance warranting application of Cronic. Cronic at
659. Moreover, in choosing to perhaps mitigate the situation by having Loman
testify to additional efforts to contact him—only after the damaging testimony
from the office receptionist—Loman’s trial counsel’s actions at the sentencing
hearing cannot be chalked up as mere trial strategy. As a result of these
circumstances, Loman was undoubtedly prejudiced by being exposed to and
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receiving a prison sentence rather than merely community control. See id. at 658-
660; State v. Oliver, 9th Dist. Summit No. 26446, 2013-Ohio-1977, ¶ 15.
{¶36} Based on the foregoing, we conclude that these circumstances, which
were created from the inception by the trial court in setting this particular
condition of bond and which were then pursued under the continued direction of
the trial court in conducting the sentencing hearing, resulted in Loman being
denied the effective assistance of his counsel under Cronic and Strickland. See
Oliver at ¶ 19.
{¶37} Our conclusion is supported by and similar to the Ninth District
Court of Appeals’ decision in Oliver, relied on by Loman. In that case, after the
trial court imposed its sentence, Oliver, through counsel, informed the trial court
that he wished to withdraw his guilty plea. Oliver at ¶ 6. Oliver’s counsel and the
trial court then questioned Oliver as to his request, and Oliver explained that his
attorney coerced him into pleading guilty, “that his attorney would not give him a
chance to speak or ask questions, and that his attorney accused him of ‘acting like
a kid’ and asked him if he wanted a ‘lollipop.’” Id. The trial court then swore in
Oliver’s counsel who testified to conversations he had with Oliver and refuted
Oliver’s contention that he had coerced Oliver into pleading guilty. Id. at ¶ 7. The
trial court ultimately denied Oliver’s motion to withdraw his guilty plea. Id. at ¶ 8.
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{¶38} Oliver appealed to the Ninth District, arguing that the trial court
denied him effective assistance of counsel when it allowed his counsel to testify,
without the opportunity for cross-examination, and to rebut many of Oliver’s
reasons for requesting the withdrawal of his guilty plea. Id. at ¶ 9-10. The Ninth
District framed the question this way: “whether the trial court completely denied
Mr. Oliver his right to the effective assistance of counsel when it caused his
attorney to testify against him, without first allowing Mr. Oliver time to obtain
new counsel for purposes of representation and cross-examination.” Id. at ¶ 13.
Relying on Cronic, the Ninth District concluded, “In directing defense counsel to
testify against his client’s interests, without the opportunity for cross-examination,
the trial court completely denied Mr. Oliver the assistance of his counsel.” Id. at ¶
19. It reversed and remanded for Oliver to be appointed new counsel and for a
rehearing on Oliver’s motion to withdraw his guilty plea. Id. at ¶ 20.
{¶39} Although it was Oliver’s trial counsel who testified and not his trial
counsel’s receptionist, and although it was the trial court in Oliver that called
Oliver’s trial counsel as a witness, we find persuasive the Ninth District’s
conclusion of law in Oliver. Indeed, in both Oliver and this case, the defendants
were left without counsel and denied the right of cross-examination when their
attorneys presented testimony against their interests. Moreover, in both cases, the
trial courts’ directions led to the defendants being left without effective assistance
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Case No. 2-13-17
of counsel. Also in both cases, there was a “‘breakdown of the adversarial
process’” because the defendants’ attorneys offered testimony “directly and
indisputably against the interests of” their clients, and neither defendant had the
opportunity for cross-examination. (Emphasis sic.) Id. at ¶ 18, quoting Cronic,
466 U.S. at 657. For those reasons, we find Oliver’s holding persuasive and
worthy of application in this case.
{¶40} Finally, we must respectfully disagree with the trial court’s comment
at sentencing that the court would have obtained the information necessary to
violate Loman’s bond directly from Loman anyway, without any assistance from
Loman’s counsel, because Loman had no Fifth Amendment rights at sentencing.
Contrary to the trial court’s statement at the sentencing hearing, the U.S.
Constitution’s Fifth Amendment generally applies at sentencing.
{¶41} “A defendant retains the right to invoke his Fifth Amendment
privilege against compelled self-incrimination when he has pled guilty but
sentence is yet to be imposed. * * * Thus, a guilty plea is not a waiver of the
privilege at sentencing.” State v. Hobbs, 8th Dist. Cuyahoga No. 84146, 2005-
Ohio-3416, ¶ 39, citing Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307(1999). See also State v. Clunen, 7th Dist. Columbiana No. 12 CO 30, 2013-Ohio-
5525, ¶ 14 (“A defendant has a right to remain silent at sentencing even after a
guilty plea * * *.”), citing State v. Donald, 7th Dist. Mahoning No. 08 MA 154,
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Case No. 2-13-17
2009-Ohio-4638, ¶ 11 and Mitchell at 321. However, “where there can be no
further incrimination, there is no basis for the assertion of the [Fifth Amendment]
privilege.” Mitchell at 326. “[T]hat principle applies to cases in which the
sentence has been fixed and the judgment of conviction has become final.” Id. “If
no adverse consequences can be visited upon the convicted person by reason of
further testimony, then there is no further incrimination to be feared.” Id.{¶42} This case was one where adverse consequences could have been—
and were—visited upon the defendant by reason of further testimony at the
sentencing hearing. In other words, this was not a case where, before sentencing,
the sentence had been fixed. To the contrary, Loman faced sentences of either
community control or prison. Absent application of one of the factors found in
R.C. 2929.13(B)(1)(b), the trial court was required to sentence Loman to
community control, assuming the factors of R.C. 2929.13(B)(1)(a) applied. See
R.C. 2929.13(B)(1)(a). The State recommended a sentence of community control,
and Loman appeared to be in line for a sentence of community control until the
trial court instructed Loman’s trial counsel, “I’m going to want it presented as to
what dates of contact he had with your office? [sic].”4 (May 8, 2013 Tr. at 10).
4
It is unclear from the record how the trial court came to believe that Loman may have violated the
condition of his bond requiring him to contact his attorney once each week. Neither the February 12, 2013
PSI nor the PSI writer’s April 19, 2013 memorandum mentioned a failure on Loman’s part to contact his
attorney once each week. The PSI writer did mention in the February 12, 2013 PSI, however, that she “was
advised by the Auglaize County Public Defender’s Office that the offender had failed to continue signing in
at the Auglaize County Sheriff’s Office as mandated by the conditions of Loman’s Own Recognizance
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Case No. 2-13-17
Therefore, Loman still had something to lose at the sentencing hearing, and he
retained his Fifth Amendment privilege there.
{¶43} Nor are we persuaded by the State’s argument that Loman’s
admission at the sentencing hearing that he contacted his attorney fewer than one
time each week served as an independent basis for the bond-violation finding for
purposes of R.C. 2929.13(B)(1)(b)(iii). By the time Loman made that admission,
the breakdown in the adversarial process and the circumstances described in
Cronic had already occurred.
{¶44} For the reasons above, we hold that, under the specific circumstances
of this case, by setting this particular condition of bond and then directing
Loman’s trial counsel to provide the information, evidence, or testimony necessary
to establish the violation of that bond condition against Loman’s interests, the trial
court denied Loman the effective assistance of his counsel.
{¶45} In conclusion, we are compelled to take this opportunity to express
our concerns about the troubling consequences that a bond condition such as the
one in this case can have. Generally, “‘Placing conditions on bond is a power
specifically granted to the trial court under Crim.R. 46,’” and a trial court “may
determine what the conditions of a bond are.” State v. Sutton, 6th Dist. Lucas No.
L-03-1104, 2004-Ohio-2679, ¶ 18, quoting State v. Shearer, 6th Dist. Wood No.
bond in the Instant Offense.” The trial court, however, did not revoke Loman’s bond based on that separate
condition. (See Doc. Nos. 59, 63); (PSI).
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Case No. 2-13-17
WD-98-078, 1999 WL 1203785, *3 (Dec. 17, 1999). Trial courts, such as the trial
court in this case, sometimes impose bond conditions requiring that defendants
contact their attorneys regularly. See, e.g., State v. Lewis, 11th Dist. Lake No.
2012-L-074, 2013-Ohio-3974, ¶ 51.
{¶46} At the outset, we question the extent to which requiring a defendant
to contact his own attorney as a condition of bond is directly relevant to either the
public safety or the assurance that the defendant will properly appear in court as
scheduled, particularly where, as here, another condition of bond requires the
defendant to “check in with the * * * Sheriff’s Office, IN PERSON, once each
week.” (Emphasis sic.) (Doc. No. 10). Nevertheless, we understand that there
may be other useful reasons advancing the effective administration of a hearing
docket where all parties are present with counsel and prepared to proceed. For
these reasons, we decline at this time to make any broad and restrictive holding
regarding the constitutional validity of such a requirement.
{¶47} Notwithstanding this restraint, it seems to us that this case certainly
highlights the inherently problematic nature of such a condition which
automatically places the defense attorney in the position of being a potential
witness and perhaps the only source of information necessary to establish any
alleged violation of the condition. Needless to say, as noted by Loman’s trial
counsel in this case, such a bond condition also carries a high probability for
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Case No. 2-13-17
placing any defense attorney in an untenable ethical situation under the
disciplinary rules. Accordingly, we would suggest that a trial court find better
ways to ensure public safety and the defendant’s appearance in compliance with
prior court orders at any scheduled hearings. See Crim.R. 46(B).
{¶48} For the reasons above, we sustain Loman’s assignment of error. We
reverse the judgment of the trial court, vacate Loman’s sentence, and remand for
the appointment of new trial counsel and for a resentencing hearing conducted in
conformity with the holding of this opinion and with R.C. 2929.13. At the
resentencing hearing, the trial court may not consider information, evidence, or
testimony obtained at the original, May 8, 2013 sentencing hearing in
contravention of Loman’s right to effective assistance of counsel or his Fifth
Amendment privilege, including Loman’s statements and the testimony of
Loman’s counsel’s office receptionist.
{¶49} Having found error prejudicial to the appellant herein in the
particulars assigned and argued, we reverse the judgment and vacate the sentence
of the trial court and remand for further proceedings consistent with this opinion.
Judgment Reversed, Sentence
Vacated and Cause Remanded
WILLAMOWSKI, P.J. and PRESTON, J., concur.
/jlr
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