State v. Dudas , 2022 Ohio 1637 ( 2022 )

[Cite as State v. Dudas, 2022-Ohio-1637.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NOS. 2021-L-115
2021-L-116
Plaintiff-Appellee,
Criminal Appeals from the
-v- Court of Common Pleas
RONALD DUDAS,
Trial Court Nos. 2006 CR 000560
Defendant-Appellant. 2006 CR 000700
OPINION
Decided: May 16, 2022
Judgment: Affirmed
Michael C. O’Malley, Cuyahoga County Prosecutor, and Brandon A. Piteo, Assistant
Prosecuting Attorney, The Justice Center, 8th Floor, 1200 Ontario Street, Cleveland, OH
44113 (For Plaintiff-Appellee).
Ronald Dudas, pro se, PID# A520-261, Grafton Correctional Institution, 2500 South
Avon Belden Road, Grafton, OH 44044 (Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Ronald Dudas, appeals from the October 19, 2021 order of the
Lake County Court of Common Pleas striking his Jus Necessitatis Motion Due to Sixth
Amendment and Brady Violations. In 2006, appellant pled guilty to and was convicted of,
inter alia, intimidation of and retaliation against a Cuyahoga County Common Pleas Court
judge, intimidation of a police officer, and engaging in a pattern of corrupt activity involving
the theft of money and real estate from numerous victims. This is the nineteenth appeal
that appellant has filed relating to two consolidated 2006 convictions, and specifically, his
third petition for post-conviction relief based on purported fraud. For the reasons set forth
herein, the order of the Lake County Court of Common Pleas is affirmed.
{¶2} The following factual background is derived from this court’s opinions in
previous appeals. On October 19, 2005, Cuyahoga County Common Pleas Judge David
T. Matia sentenced appellant on an unrelated case to 17 months in prison on his guilty
plea to felony theft and for a probation violation.
{¶3} After sentencing, appellant was taken to jail, and he started making calls to
his then-girlfriend discussing sentencing. On October 19, 2005, he told her he was
“gonna visit [North Olmsted Police Detective Simon Cesareo] when ‘I’m out of here.’” He
also said he wanted Detective Cesareo, who had investigated many of the fraud cases
over the past ten years that had resulted in convictions against appellant, sodomized. On
October 21, 2005, appellant said he “was gonna take that gun from the deputy and shoot
the fucker [Judge Matia] in the head.”
{¶4} Appellant also discussed his sentencing with some of his fellow inmates.
He told inmate Daniel Whitehead that because Judge Matia gave him almost the
maximum sentence, he took it personally, wanted Judge Matia to be killed, and wanted
Detective Cesareo to be hurt. He offered to pay Whitehead $10,000 to accomplish this,
but Whitehead declined.
{¶5} Appellant also told his fellow inmate Robert Harmon he hated Judge Matia
and wanted him killed and wanted Detective Cesareo’s legs broken. Appellant told
Harmon he would pay him $500 now, $5,000 when Harmon got out of jail, and a final
$5,000 when Harmon had done it. Harmon contacted Cleveland Police Homicide
Detective Hank Veverka and told him about appellant’s proposition. Harmon agreed to
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wear a recording device. On October 25, 2005, appellant again discussed the murder plot
with Harmon, while the conversation was tape-recorded. Appellant told Harmon how he
would get the money; that he guaranteed Harmon he would be paid; and that he wanted
both jobs done, referring to Judge Matia and Detective Cesareo.
{¶6} Just about a month later, appellant contacted Tom Platzer, one of his theft
victims, and convinced him to give $300 to Harmon, which appellant meant to serve as
the initial deposit for Harmon’s role in the murder plot. Platzer paid the money to a
detective posing as Harmon.
{¶7} Appellant subsequently called his then-girlfriend and told her he had gone
to Harmon’s cell, found a prescription for his medication, and wrote a note on the back
stating, “I, Robert Harmon, hereby state that I falsely tried to set up Ronald Dudas to
enhance myself. I have told several lies to detectives about Ron Dudas. I sign this note
because I was wrong for what I did.” The note was dated November 23, 2005 and bore
the purported signature of Harmon. Appellant said this was his protection in the event
Harmon turned out to be an informant. Appellant mailed this note to his then-girlfriend
and told her with this he had the upper hand. The Lake County Crime Lab eventually
determined that appellant himself had written the note and that Harmon’s signature on
the note was a forgery.
{¶8} On April 18, 2006, appellant was indicted by the Cuyahoga County Grand
Jury in Case No. 09 CR 000560 and charged with 14 counts of intimidation, 15 counts of
retaliation, two counts of conspiracy to commit aggravated murder, attempted aggravated
murder, and attempted felonious assault on a police officer (“the murder conspiracy
case”).
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{¶9} On September 26, 2006, appellant was indicted by the Cuyahoga County
Grand Jury in Case No. 06 CR 000700 and charged, in a 135-count indictment, with
engaging in a pattern of corrupt activity, 30 counts of tampering with records, ten counts
of securing writings by deception, six counts of telecommunications fraud, 46 counts of
forgery, 35 counts of theft by deception, theft beyond the scope of the owner’s consent,
and six counts of money laundering (“the corrupt activity case”).
{¶10} After two days of trial in the murder-conspiracy case, appellant plead guilty
in both cases, which were consolidated in the trial court. In the murder conspiracy case,
appellant pled guilty to four counts of intimidation of Detective Cesareo and Judge Matia,
and one count of retaliation against Judge Matia. In the corrupt activity case, appellant
pled guilty to engaging in a pattern of corrupt activity, tampering with records, forgery,
felony theft, uttering, securing writings by deception, and telecommunications fraud.
{¶11} In the murder conspiracy case, the court sentenced appellant on each of
four counts of intimidation to five years in prison, each term to run concurrently to the
others. The court also sentenced him to five years on the retaliation count, to be served
consecutively with the intimidation counts, for a total of ten years. In the corrupt activity
case, the court sentenced appellant to ten years for engaging in a pattern of corrupt
activity, five years for tampering with records, 18 months for forgery, one year for theft,
18 months for uttering, five years for securing writings by deception, and 18 months for
telecommunications fraud. The prison terms imposed for forgery, theft, uttering, and
telecommunications fraud were to be served concurrently to each other and concurrently
to the terms imposed for engaging in a pattern of corrupt activity, tampering with records,
and securing writings by deception. The terms for engaging in a pattern of corrupt activity,
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tampering with records, and securing writings by deception were to be served
consecutively to each other, for a total of 20 years in prison, and consecutively to the
prison term in the murder conspiracy case, for an aggregate total of 30 years in prison.
{¶12} Appellant filed a direct appeal, and this court affirmed his conviction in State
v. Dudas, 11th Dist. Lake Nos. 2006-L-267 and 2006-L-268, 2007-Ohio-6739,
discretionary appeal not allowed at 118 Ohio St.3d 1409, 2008-Ohio-2340 (“Dudas I ”).
{¶13} Following appellant’s sentence, he filed multiple pro se motions and
appealed their denial by the trial court. In State v. Dudas, 11th Dist. Lake No. 2007-L-074,
2007-Ohio-6731 (“Dudas II ”), this court affirmed the trial court’s denial of appellant’s
motion to require the state to return his laptop computer and his personal and business
files.
{¶14} In State v. Dudas, 11th Dist. Lake Nos. 2007-L-140 and 2007-L-141, 2008-
Ohio-3262 (“Dudas III ”), this court affirmed the trial court’s dismissal of appellant’s first
petition for postconviction relief.
{¶15} In State v. Dudas, 11th Dist. Lake No. 2007-L-169, 2008-Ohio-3261(“Dudas IV ”), this court affirmed the trial court’s denial of appellant’s motion to compel
two victims of his theft scheme to return his property.
{¶16} In State v. Dudas, 11th Dist. Lake Nos. 2007-L-170 and 2007-L-171, 2008-
Ohio-3260 (“Dudas V ”), this court affirmed the trial court’s denial of appellant’s Civ.R. 60
motion for relief from judgment.
{¶17} In State v. Dudas, 11th Dist. Lake Nos. 2008-L-081 and 2008-L-082, 2008-
Ohio-7043 (“Dudas VI ”), this court affirmed the trial court’s denial of appellant’s first
motion to withdraw his guilty plea.
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{¶18} In State v. Dudas, 11th Dist. Lake Nos. 2007-L-189 and 2007-L-190, 2008-
Ohio-6983 (“Dudas VII ”), this court affirmed the trial court’s denial of appellant’s petition
to return all seized contraband from law enforcement officials.
{¶19} In State v. Dudas, 11th Dist. Lake Nos. 2008-L-078 and 2008-L-079, 2009-
Ohio-1003 (“Dudas VIII ”), this court affirmed the trial court’s denial of appellant’s request
for production of documents pursuant to Civ.R. 34 and his “investigative demand against
state.”
{¶20} In State v. Dudas, 11th Dist. Lake Nos. 2008-L-109 and 2008-L-110, 2009-
Ohio-1001 (“Dudas IX ”), this court affirmed the trial court’s denial of appellant’s motion
to quash the indictment.
{¶21} In State v. Dudas, 11th Dist. Lake Nos. 2009-L-072 and 2009-L-073, 2010-
Ohio-3253 (“Dudas X ”), this court affirmed the trial court’s denial of appellant’s motion to
void judgment and dismiss indictment.
{¶22} In State v. Dudas, 11th Dist. Lake No. 2010-L-002, 2010-Ohio-6442(“Dudas XI ”), this court affirmed the trial court’s denial of appellant’s second motion to
withdraw his guilty plea.
{¶23} In State v. Dudas, 11th Dist. Lake No. 2010-L-003, 2010-Ohio-6576(“Dudas XII ”), this court affirmed the trial court’s denial of appellant’s third motion to
withdraw his guilty plea.
{¶24} In State v. Dudas, 11th Dist. Lake No. 2010-L-092, 2011-Ohio-4883(“Dudas XIII ”), this court affirmed the trial court’s denial of appellant’s “motion to compel
state and trial court to honor legal contract.”
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{¶25} In State v. Dudas, 11th Dist. Lake No. 2010-L-093, 2011-Ohio-5102(“Dudas XIV ”), this court affirmed the trial court’s denial of appellant’s fourth motion to
withdraw his guilty plea.
{¶26} In State v. Dudas, 11th Dist. Lake No. 2011-L-093, 2012-Ohio-2121(“Dudas XV ”) and 2011-L-094, 2012-Ohio-2122 (“Dudas XVI ”), this court affirmed
appellant’s resentencing, which corrected a technical error relating to post-release
control.
{¶27} Appellant’s next appeal, State v. Dudas, 11th Dist. Lake Nos. 2013-L-048
and 2013-L-049, 2014-Ohio-4292 (“Dudas XVII ”), was based on an affidavit allegedly
signed by Harmon in 2012, in which Harmon purportedly recanted previous statement
implicating appellant in the plot to murder Judge Matia. Appellant argued this constituted
newly discovered evidence entitling him to withdraw his plea. Specifically, the affidavit
stated that in September 2005, Harmon attended a meeting with Assistant Cuyahoga
County Prosecutor Dan Kasaris; Cuyahoga County Common Pleas Judges Timothy
McGinty and David Matia; and Cuyahoga County Sheriff’s detectives, and that during this
meeting all in attendance conspired to and ultimately did create a recording of a
conversation between Harmon and another inmate, Daniel Whitehead, in which
Whitehead, impersonating appellant, made incriminating statements that made it appear
as if appellant admitted his involvement in the murder plot. On appeal, this court affirmed
the trial court’s denial of appellant’s fifth motion to withdraw his guilty plea, denied his
second petition for post-conviction relief, and affirmed the trial court’s April 26, 2013 order
warning appellant and his present or future counsel that “the filing of bad faith, frivolous,
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unsubstantiated, and/or repetitious motions will incur disciplinary and/or contempt
sanctions, including financial sanctions.”
{¶28} In State v. Dudas, 11th Dist. Lake No. 2019-L-095, 2020-Ohio-1323 (Dudas
XVIII ), this court affirmed the trial court’s denial of appellant’s seventh motion to withdraw
his guilty pleas.
{¶29} On September 29, 2021, appellant filed a motion entitled “Jus Necessitatis
Motion Due to Sixth Amendment and Brady Violations,” which the trial court struck sua
sponte pursuant to its April 26, 2013 order. It is from that decision that appellant brings
the instant appeal, assigning two errors for our review. The first states:
{¶30} The trial court erred and abused its discretion in sua sponte striking
Appellant’s Jus Necessitatis Motion from the record.
{¶31} The underlying motion in the instant appeal alleged that appellant’s
constitutional right to counsel was violated because Harmon, a fellow inmate, was acting
as an agent of the state to elicit incriminating statements from appellant without his
counsel present. The motion assumes as true the assertions appellant previously made;
namely, that the statements were fraudulently fabricated or elicited. Appellant’s “Jus
Necessitatis” motion requests, inter alia, the trial court hold a hearing in order for him to
further elaborate why the judgment should be “overruled and reversed.”
{¶32} Initially, we must classify appellant’s motion, in order to determine the
standard of review. State v. Goodman, 11th Dist. Trumbull No. 2009-T-0068, 2010-Ohio-
407, ¶13. Appellant’s motion is entitled a Jus Necessitatis motion. Black’s Law Dictionary
defines “jus necessitatis” as “[a] person’s right to do what is required for which no threat
of legal punishment is a dissuasion. This idea implicates the proverb that necessity knows
no law (necessitas non habet legem), so that an act that would be objectively understood
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as necessary is not wrongful even if done with full and deliberate intention.” JUS
NECESSITATIS, Black’s Law Dictionary (11th ed. 2019). The application of this idea to
appellant’s motion is unclear.
{¶33} “Courts may recast irregular motions into whatever category necessary to
identify and establish the criteria by which the motion should be judged.” State v. Schlee,
117 Ohio St.3d 153, 2008-Ohio-545, ¶12. “Where a criminal defendant, subsequent to
his or her direct appeal, files a motion seeking vacation or correction of his or her sentence
on the basis that his or her constitutional rights have been violated, such a motion is a
petition for postconviction relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio
St.3d 158, 160 (1997), syllabus. In fact, “[w]ith the exception of an appeal, a petition for
postconviction relief is ‘the exclusive remedy by which a person may bring a collateral
challenge to the validity of a conviction or sentence in a criminal case.’” State v. Parker,
157 Ohio St.3d 460, 2019-Ohio-3848, ¶15, quoting R.C. 2953.21(K). See also State v.
Lewis, 11th Dist. Lake No. 2021-L-047, 2021-Ohio-4264, ¶16.
{¶34} Similar to the reclassifications of motions in Goodman, supra, and Schlee,
supra, the motion relevant to this appeal was filed subsequent to appellant’s direct appeal;
claimed his constitutional right to counsel was violated; and prayed that the judgment
against him be vacated and reversed. Consequently, we treat this appeal as one from a
petition for postconviction relief pursuant R.C. 2953.21. See Schlee, supra, at ¶12, and
Goodman, supra, at ¶15.
{¶35} An appellate court reviews a trial court’s determination whether to grant or
deny a petition for postconviction relief for abuse of discretion. State v. Appenzeller, 11th
Dist. Lake No. 2007-L-175, 2008-Ohio-6982, ¶19. The term “abuse of discretion” is one
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of art, essentially connoting judgment exercised by a court which neither comports with
reason, nor the record. State v. Ferranto, 112 Ohio St. 667, 676-678 (1925).
{¶36} In Dudas XVII, this court upheld the trial court’s April 26, 2013 order, which
stated in pertinent part:
{¶37} The defendant is hereby placed on notice and warned that he shall
not file any further pro se requests to withdraw his guilty pleas,
petitions for post-conviction relief, * * * or any similar requests by any
other names, or requests for reconsideration of the denial of any
such motions, * * * or any other bad faith, frivolous, unsubstantiated,
and/or repetitious motion or action. The court will, sua sponte, strike
such filing(s) from the record.
{¶38} In upholding this order, this court noted that the order did not prohibit
appellant from making any future pro se filings, but ordered him not to make any more
repetitious, unsubstantiated, frivolous, and/or bad faith motions. This court further noted
that “[w]hile appellant has the right to access the courts of this states, ‘[t]his right of access
* * * does not include the right to abuse the judicial processes and we believe it is within
the inherent authority of this court to prevent such abuses * * *. Further, in light of
appellant’s history of frivolous filings, the trial court had the authority to caution attorneys
representing him to refrain from involving themselves in such activity.” Dudas XVII, supra,
at ¶112-113, quoting State ex rel. Richard v. Cuyahoga Cty. Bd. of Commrs., 100 Ohio
App.3d 592, 600 (8th Dist.1995).
{¶39} At issue in the appeal at bar is whether the trial court abused its discretion
in striking this motion as violative of the April 26, 2013 warning against filing “repetitious,
unsubstantiated, frivolous, and/or bad faith motions.” We conclude the trial court did not
err.
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{¶40} This is appellant’s third petition for post-conviction relief following his direct
appeal. Appellant’s latest motion reiterates arguments made in previous motions and
appeals, particularly Dudas III and Dudas XVII; to wit: that he is innocent, was coerced
into pleading guilty, and that Harmon and others fraudulently fabricated or elicited
incriminating statements that he put a hit on Judge Matia. This motion repackages these
concepts as a violation of his Sixth Amendment right to counsel.
{¶41} In addition to reiterating arguments previously made, appellant’s third
petition for post-conviction relief was not timely made. R.C. 2953.21(A)(2)(a) provides in
pertinent part:
{¶42} [e]xcept as otherwise provided in section 2953.23 of the Revised
Code, a petition * * * shall be filed no later than one hundred eighty
days after the date on which the trial transcript is filed in the court of
appeals in the direct appeal of the judgment of conviction * * * [.]
{¶43} R.C. 2953.23 provides two exceptions to the 180-day time period for filing.
Subsection (A)(1) provides the first exception and states that in order to entertain a
petition filed after the expiration of the 180-day time period or a second or successive
petition for similar relief, both of the following must apply:
{¶44} (a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must
rely to present the claim for relief, or, subsequent to the period
prescribed in division (A)(2) of section 2953.21 of the Revised Code
* * *, the United States Supreme Court recognized a new federal or
state right that applies retroactively to persons in the petitioner’s
situation, and the petition asserts a claim based on that right.
{¶45} (b) The petitioner shows by clear and convincing evidence that, but
for constitutional error at trial, no reasonable factfinder would have
found the petitioner guilty of the offense of which the petitioner was
convicted * * *[.]
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{¶46} The second exception, R.C. 2953.23(A)(2), relates to a DNA testing
exception not applicable in the subject appeal.
{¶47} In Dudas XVII, this court denied his second petition for post-conviction relief,
in large part because it was untimely made. This court determined:
{¶48} [t]he record shows appellant failed to meet the two-prong test of R.C.
2953.23 in order to obtain relief under his successive petition. First,
the record shows he was not unavoidably prevented from
discovering the information contained in Harmon’s 2012 affidavit. In
fact, appellant has repeated the same story contained in that affidavit
in support of numerous motions he has filed since 2006.
{¶49} * * *
{¶50} Further, appellant failed to prove the second prong of the R.C.
2953.23 test, namely, that, but for constitutional error at trial, no
reasonable jury would have found him guilty. Appellant did not go to
trial and did not prove any constitutional error; instead, he pled guilty.
Dudas XVII at ¶60, 66.
{¶51} This court also noted that the record reflects that during his guilty plea
hearing and colloquy, appellant admitted as true the facts the prosecutor stated would be
proved at trial in both the murder conspiracy case and the corrupt activity case. This court
concluded that “[t]he evidence thus supported the trial court’s finding that appellant failed
to meet the test in R.C. 2953.23 and thus was not entitled to post-conviction relief.” Duas
XVII, supra, at ¶74.
{¶52} Likewise, appellant’s latest motion fails to meet the two-prong test of R.C.
2953.23. First, appellant could have raised the argument that his Sixth Amendment right
to counsel was violated in a prior motion or appeal. Second, he has failed to prove that
“no reasonable factfinder” would have found him guilty but for a constitutional error. Thus,
appellant’s third petition for post-conviction relief was not timely made and the trial court
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was not required to consider the petition or hold a hearing on the issues raised. R.C.
2953.21(D) and (F).
{¶53} Furthermore, even if appellant’s motion was not repetitive and was timely
made, appellant’s arguments are nevertheless barred by res judicata. Under this
doctrine, “a defendant is precluded from ‘raising and litigating in any proceeding, except
an appeal from that judgment, any defense or any claimed lack of due process that was
raised or could have been raised by the defendant at the trial’ or on direct appeal.” State
v. Lett, 11th Dist. Lake No. 2017-L-169, 2018-Ohio-2351, ¶19, quoting State v. Hobbs,
11th Dist. Lake No. 2010-L-064, 2011-Ohio-1298, ¶39. “‘Constitutional issues that have
been or could have been litigated before conviction or on direct appeal * * * cannot be
considered in postconviction proceedings under the doctrine of res judicata.’” State v.
Mike, 11th Dist. Trumbull No. 2007-T-0116, 2008-Ohio-2754, ¶5, quoting State v. Gegia,
11th Dist. Portage No. 2003-P-0026, 2004-Ohio-1441, ¶34.
{¶54} Accordingly, we find the trial court did not abuse its discretion in finding that
appellant’s arguments in his latest motion were repetitious, unsubstantiated, frivolous,
and/or made in bad faith. As such, the trial court did not err by sua sponte striking the
motion from the record.
{¶55} Appellant’s first assigned error is without merit.
{¶56} His second states:
{¶57} The use of a state agent to elicit incriminating statements from a
defendant who has invoked his right to counsel, and failure to
disclose the actor’s status as a state agent, violates the defendant’s
right to counsel, and right to due process of law, rendering any
resultant conviction constitutionally infirm.
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{¶58} Because the instant appeal is from the decision to strike the motion, not
from a decision of the merits of the motion, appellant’s second assigned error, which asks
this court to reach the merits of the stricken motion, is overruled. See State v.
Gontmakher, 11th Dist. Lake No. 12-182, 1988 WL 55457, *3, citing Kalish v. Trans World
Airlines, 50 Ohio St.2d 73 (1977) (An appellate court “will not consider a question not
presented, considered or decided by a lower court.”). See also State v. Ware, 6th Dist.
Huron No. H-99-025, 2000 WL 426209, *1; State v. Hess, 8th Dist. Cuyahoga No. 109603,
2021-Ohio-579, ¶5.
{¶59} However, even if we were to review the merits of appellant’s motion, he
would not prevail. “The right to counsel under the Sixth Amendment is violated when the
state’s agent engages the accused in conversation designed to uncover incriminating
information about the charges pending against him.” (Emphasis added.) State v.
Conway, 108 Ohio St.3d 214, 2006-Ohio-791, ¶77.
{¶60} Even assuming as true that Harmon was acting as a state agent, at the time
appellant and Harmon spoke in 2005, the record shows that no charges pertaining to the
threats made against Judge Matia and others had yet been filed, thus no right to counsel
had yet attached in what would become the murder conspiracy or corrupt activity cases.
See State v. Mills, 62 Ohio St.3d 357, 370 (1992), quoting State v. Broom, 40 Ohio St.3d
277, 293-294 (“‘The Sixth Amendment right to counsel attaches only when adversarial
proceedings are initiated against an individual for a particular incident by way of
indictment, information, arraignment, or preliminary hearing.’”); State v. Tench, 156 Ohio
St.3d 85, 2018-Ohio-5205, citing McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (“The
Sixth Amendment right to counsel is offense specific * * *.).
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{¶61} For the reasons set forth herein, the judgment of the Lake County Court of
Common Pleas is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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