State v. Franklin , 2022 Ohio 2405 ( 2022 )

[Cite as State v. Franklin, 2022-Ohio-2405.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Earle E. Wise, Jr., P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
TE'QUAN FRANKLIN : Case No. 2021-AP-11-0028
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2021-CR-03-0108
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 12, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KRISTINE W. BEARD DAN GUINN
125 E. High Avenue 232 West 3rd Street
New Philadelphia, OH 44663 Suite 312
Dover, OH 44622
Tuscarawas County, Case No. 2021-AP-11-0028 2
Wise, Earle, P.J.
{¶ 1} Defendant-Appellant, Te'Quan Franklin, appeals his October 15, 2021
conviction by the Court of Common Pleas of Tuscarawas County, Ohio. Plaintiff-Appellee
is state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On April 23, 2021, the Tuscarawas County Grand Jury indicted appellant
with one count of murder, one count of aggravated murder and two counts of aggravated
robbery. Each count of the indictment contained a 3-year, 5-year, and 6-year firearm
specification.
{¶ 3} Appellant was appointed counsel on April 29, 2021. In a letter to the trial
court filed September 17, 2021, appellant requested new trial counsel because his
attorney was not suitable to his standards and ineffective. The trial court addressed
appellant's motion at a pretrial hearing on September 21, 2021. Counsel for appellant
stated he had been to the jail numerous times to go over discovery with appellant and to
explain legal concepts relevant to the charges against him. Counsel explained that while
there had been no disagreements between he and appellant, appellant nonetheless had
expressed his opinion that counsel was not fighting for him. Specifically, appellant
requested counsel file motions which counsel believed were frivolous.
{¶ 4} Under questioning by the court, appellant agreed his counsel had
adequately assisted him in every way except for filing the motions he requested. The trial
court denied appellant's motion for new appointed counsel, but advised he was certainly
free to hire counsel of his choice.
Tuscarawas County, Case No. 2021-AP-11-0028 3
{¶ 5} On October 1, 2021, following negotiations with the state, in exchange for
appellant's pleas the state agreed to dismiss the 5 and 6-year firearm specifications and
recommend a sentence of life with parole eligibility after 20 years and 3 years on the
firearm specification.
{¶ 6} Relevant to this matter, during the plea colloquy the trial court inquired:
THE COURT: I know earlier in this case, [appellant], we had a discussion where
you had reservations about [counsel for appellant] and you had asked at that time
of, of me to appoint a different attorney for you in this case. And I denied that, that
request [appellant]. Do you have any, you know, concerns in light of the fact that
we've had that discussion? Have you, have you been able to further communicate
with [counsel for appellant] since you made that request of me?
[APPELLANT]: Yes.
THE COURT: And have you, have your reservations about [counsel for appellant]
been satisfied and are you happy with the representation you've received?
[APPELLANT]: Yes.
{¶ 7} Transcript of plea, October 1, 2021, 17-18.
{¶ 8} Appellant further acknowledged in his written Acknowledgement of Guilty
Plea signed by appellant the same day he entered his pleas, that he had an opportunity
to discuss all matters related to his case with his counsel, had confidence in his counsel,
and accepted counsel's representation. Record at 116.
Tuscarawas County, Case No. 2021-AP-11-0028 4
{¶ 9} The trial court sentenced appellant to life in prison with the possibility of
parole after 23 years.
{¶ 10} Appellant filed this appeal and the matter is now before this court for
consideration. He raises one assignment of error for our consideration as follows:
I
{¶ 11} "WHETHER OR NOT THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING THE APPELLANT'S REQUEST FOR NEW COUNSEL."
{¶ 12} In his sole assignment of error, appellant argues the trial court abused its
discretion in denying his request for new counsel because the trial court should have
made a specific inquiry as to what motions appellant wanted counsel to file. He further
argues counsel provided ineffective assistance. We disagree.
Applicable Law
{¶ 13} The decision whether to discharge court-appointed counsel is within the trial
court's sound discretion. State v. Dukes, 34 Ohio App.3d 263, 518 N.E.2d 28 (8th
Dist.1986). In order to find an abuse of discretion, we must determine the trial court's
decision was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 14} As explained by our colleagues from the Third District in State v. Bowman,
3d Dist. Crawford No. 3-89-18, 1990 WL209806, *2 (Dec. 21, 1990):
The right to counsel guaranteed by the Sixth Amendment of the United
States Constitution and Section 10 Article I of the Ohio Constitution does
not always mean counsel of one's own choosing. State v. Marinchek (1983),
Tuscarawas County, Case No. 2021-AP-11-0028 5
9 Ohio App.3d 22, 23. The right to counsel must be balanced against the
public's right to prompt, orderly and efficient administration of justice.
Moreover, the right of a defendant to select his own counsel is inherent only
in the cases where the accused is employing counsel himself. Thurston v.
Maxwell (1965), 3 Ohio St.2d 92, 93. Therefore, the right to have counsel
assigned by the court does not impose a duty on the court to allow the
defendant to choose his own counsel. In fact, to discharge a court-
appointed attorney, the defendant must show a breakdown in the attorney-
client relationship of such magnitude as to jeopardize the defendant's right
to effective assistance of counsel. State v. Coleman (1988), 37 Ohio St.3d
286, paragraph four of the syllabus, certiorari denied (1988), 102 L.Ed.2d
238.
{¶ 15} To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell
below an objective standard of reasonable representation, and (2) that counsel's errors
prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the
result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–
688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. "Reasonable
probability" is "probability sufficient to undermine confidence in the outcome." Strickland
at 694, 104 S.Ct. 2052.
Analysis
Tuscarawas County, Case No. 2021-AP-11-0028 6
{¶ 16} We first note that appellant entered negotiated pleas of guilty. As explained
by our colleagues from the Eighth District in State v. Williams, 8th Dist. Cuyahoga No.
100459, 2014-Ohio-3415, ¶ 11:
A defendant who pleads guilty waives all appealable issues,
including the right to assert an ineffective assistance of counsel
claim, except the defendant may claim ineffective assistance of
counsel on the basis that the counsel's deficient performance caused
the plea to be less than knowing, intelligent, and voluntary. In such
cases, a defendant can prevail only by demonstrating that there is a
reasonable probability that, but for counsel's deficient performance,
he would not have pleaded guilty and would have insisted on going
to trial. (Citations omitted.)
{¶ 17} Appellant has not argued that his plea was anything other than knowingly,
intelligently, and voluntarily made. Moreover, we note appellant bases his claim of
ineffective assistance on an undated, self-serving letter written by himself to his current
appellate counsel. The letter is not part of the trial court record. A claim requiring proof
that exists outside of the trial record cannot appropriately be considered on a direct
appeal. State v. Hartman, 93 Ohio St.3d 274, 299, 754 N.E.2d 1150 (2001). We may not
therefore consider appellant's letter.
{¶ 18} Because appellant has waived the issues raised in this appeal by virtue of
his guilty pleas, the sole assignment of error is overruled.
Tuscarawas County, Case No. 2021-AP-11-0028 7
{¶ 19} The judgment of the Tuscarawas County Court of Common Pleas is
affirmed.
By Wise, Earle, P.J.
Gwin, J. and
Baldwin, J. concur.
EEW/rw