State v. Johnson ( 2010 )

[Cite as State v. Johnson, 185 Ohio App.3d 654, 2010-Ohio-315.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
The STATE OF OHIO,
APPELLEE, CASE NO. 5-09-28
v.
JOHNSON, OPINION
APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2009-CR-0017
Judgment Reversed and Cause Remanded
Date of Decision: February 1, 2010
APPEARANCES:
Mark C. Miller and Drew A. Wortman, for appellee.
Robert E. Searfoss III, for appellant.
Case No. 5-09-28
WILLAMOWSKI, Presiding Judge.
{¶1} Defendant-appellant, Brett Johnson, brings this appeal from the
judgment of the Court of Common Pleas of Hancock County. For the reasons set
forth below, the judgment is reversed.
{¶2} On January 27, 2009, Johnson was indicted on two counts of
trafficking in cocaine, in violation of R.C. 2925.03(A), fifth-degree felonies.
Johnson entered a plea of not guilty on April 8, 2009. On May 12, 2009, a
change-of-plea hearing was held. Johnson’s attorney, Kenneth J. Sass, notified the
court at the hearing that there was a potential conflict of interest because the
confidential informant was a former client of Sass’s. The trial court then engaged
in a dialogue with Johnson concerning the conflict. Johnson indicated that he
wished to waive the conflict and proceeded to change his plea to one of guilty. On
July 13, 2009, the trial court sentenced Johnson to a total prison term of 22
months. Johnson now appeals the judgment and raises the following assignment
of error.
The trial court violated [Johnson’s] right to assistance of
counsel as provided by the Sixth Amendment to the United State[s]
Constitution by failing to either appoint separate counsel or to
inquire into the existence of an actual conflict of interest despite
knowledge of a potential conflict of interest held by [Johnson’s] trial
counsel.
{¶3} The sole assignment of error alleges that the trial court erred by not
appointing different counsel when a conflict-of-interest issue was raised, thus
-2-
Case No. 5-09-28
denying him effective assistance of counsel. The Ohio Supreme Court has dealt
with the issue of conflict of interest by defense counsel in State v. Gillard (1992),
64 Ohio St.3d 304, 595 N.E.2d 878. In Gillard, the defendant was represented by
an attorney who also represented a witness, in a pending matter. Although the
attorney did not believe there was a conflict of interest and the parties expressed a
waiver of any conflict, the Ohio Supreme Court reversed the decision and
remanded for the trial court to hold a hearing to determine whether an actual
conflict of interest existed. In doing so, the Ohio Supreme Court stated as
follows.
In [Holloway v. Arkansas (1978), 435 U.S. 475, 98 S.Ct.
1173, 55 L.Ed.2d 426], the United States Supreme Court concluded
that defense counsel’s repeated objections to the joint
representation, accompanied by his assertions of a risk of conflict of
interest, required the state trial court to either appoint separate
counsel or ascertain whether the risk of conflict was too remote to
warrant the appointment of separate counsel. Id. at 484, 98 S.Ct. at
1178, 55 L.Ed.2d at 434. The court held that the state trial court’s
failure to inquire into the risk of conflict unconstitutionally
endangered the defendants’ Sixth Amendment right to counsel and
required reversal of the defendants’ convictions whether or not an
actual conflict of interest existed, and whether or not prejudice
could be shown. Id. at 487-491, 98 S.Ct. at 1180-1182, 55 L.Ed.2d
at 436-438.
Cuyler v. Sullivan [1980, 446 U.S. 335, 100 S.Ct. 1709, 64
L.Ed.2d 333] is another case involving multiple representation.
Sullivan, supra, stands for the proposition that the duty imposed in
Holloway, supra, for a state trial court to inquire into the possibility
of conflicts of interest posed by multiple representation only arises
in cases where the trial judge knows or reasonably should know that
a possible conflict of interest exists. Id. 446 U.S. at 346-347, 100
-3-
Case No. 5-09-28
S.Ct. at 1717, 64 L.Ed.2d at 345-346. See, also, [Wood v. Georgia
(1981), 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220]. Thus, the
duty to inquire into the possible conflicts of interest posed by joint
representation of codefendants may arise even though no party to
the proceeding specifically objects to the multiple representation.
***
In Wood, supra, former employees of an adult movie theater
and bookstore were convicted for distributing obscene materials in
violation of a Georgia statute. The employees received fines and
jail sentences for their activities, but were placed on probation with
the condition that they make regular installment payments toward
satisfaction of the fines. When the employees failed to make the
required payments, the matter proceeded to a probation revocation
hearing where the employees offered evidence that they were unable
to pay the fines and expected that their former employer would do
so. At this hearing, the state raised the issue that the employees’
attorney was hired by the former employer and, therefore, a possible
conflict of interest existed. The trial court did not inquire into the
alleged conflict and ordered revocation of the probations if
arrearages were not paid within five days. Unable to make such
payments, the employees moved to modify the conditions of their
probation. The trial court denied this motion and ordered the
employees to serve the remaining portions of their jail sentences.
The Georgia Court of Appeals affirmed and the United States
Supreme Court granted certiorari to determine whether the
imprisonment of the employees solely because of their inability to
make the installment payments violated equal protection guarantees.
In Wood, supra, the United States Supreme Court, sua sponte,
raised the issue concerning the possibility of a conflict of interest,
stating that “[w]here, as here, a possible due process violation is
apparent on the particular facts of a case, we are empowered to
consider the due process issue.” Id. at 450 U.S. at 264-265, 101
S.Ct. at 1100, 67 L.Ed.2d at 226. Based upon a review of the
record, the court was unable to conclude whether the employees’
attorney labored under an actual conflict of interest, but the court
nevertheless held that “* * * the record does demonstrate that the
possibility of a conflict of interest was sufficiently apparent at the
-4-
Case No. 5-09-28
time of the [probation] revocation hearing to impose upon the [trial]
court a duty to inquire further.” Id. at 272, 101 S.Ct. at 1104, 67
L.Ed.2d at 230-231. The court also found that any doubt as to
whether the trial court should have been aware of the conflict-of-
interest problem was dispelled by the fact that the state explicitly
raised the issue at the probation revocation hearing and requested
that the trial court look into it. Id. at 272-273, 101 S.Ct. at 1104, 67
L.Ed.2d at 231. Accordingly, the Wood majority vacated the
judgment of the Georgia appellate court and remanded the cause for
a determination by the state trial court whether an actual conflict of
interest existed. Id. at 273-274, 101 S.Ct. at 1104, 67 L.Ed.2d at
231. The court further ordered that if the state trial court
determined, upon remand, that an actual conflict existed (and that
there was no valid waiver of the right to independent counsel), the
trial court must conduct a new revocation hearing free from
conflicts of interest. Id.A review of Holloway, Sullivan and Wood, supra, clearly
demonstrates that where a trial court knows or reasonably should
know of an attorney’s possible conflict of interest in the
representation of a person charged with a crime, the trial court has
an affirmative duty to inquire whether a conflict of interest actually
exists. The duty to inquire arises not only from the general
principles of fundamental fairness, but from the principle that where
there is a right to counsel, there is a correlative right to
representation free from conflicts of interest. See, generally, Wood,
supra. Where a trial court breaches its affirmative duty to inquire, a
criminal defendant’s rights to counsel and to a fair trial are
impermissibly imperiled and prejudice or “adverse effect” will be
presumed. See, e.g., Holloway, Sullivan and Wood, supra.Although we cannot be sure that an actual conflict of interest
existed, there is a clear possibility of conflict of interest on the facts
of this case. * * * The trial court was constitutionally required to
conduct an inquiry into the possible conflict of interest to determine
whether appellant had received, and would receive, the right to
conflict free counsel guaranteed him by the Sixth Amendment to the
United States Constitution.
-5-
Case No. 5-09-28
The argument has been raised herein that our review of the
conflict-of-interest issue is limited to the plain error analysis of
Crim.R. 52(B). This may be true but if a conflict of interest
affecting appellant actually existed in this case, it would be clearly
improper for us to speculate that the outcome of appellant’s trial
would not have been different had appellant received representation
free from conflicts of interest. We are keenly aware of the
overwhelming evidence of appellant’s guilt, but it is our job to
ensure that even this appellant receive the protections to which he is
entitled.
Gillard, 64 Ohio St.3d at 309-312, 595 N.E.2d 878.
{¶4} This court has addressed the duty of the trial court to inquire into
potential conflicts of interest in State v. McDuffie (May 23, 2001), 3d Dist. No. 9-
2000-92, 2001 WL 542114, and in State v. Myles (May 23, 2001), 3d Dist. No. 9-
2000-93, 2001 WL 542115. Both of these cases involved codefendants
represented by one attorney. In those cases, this court affirmed the judgment
because the trial court explained to the defendants that there was a conflict of
interest, what this conflict could potentially mean to each of them, and that they
both had the right to have separate counsel appointed for them. The trial court
also advised the defendants that they had the right to change their minds and
request separate counsel at any time. After being given this information, the
defendants made an informed decision to waive the conflict of interest.
{¶5} The duty to inquire, as set forth in Gillard, has been explained as
follows.
-6-
Case No. 5-09-28
“When reviewing a claim of conflict of interest, this court
must resolve two distinct issues. The first issue is whether the trial
court had a duty to investigate the potential conflict of interest. See
[Gillard, 64 Ohio St.3d 304, 595 N.E.2d 878]. If the answer to that
inquiry is affirmative and the trial court did not make such an
inquiry, then the case must be remanded to the trial court for its
inquiry as to whether an actual conflict of interest existed. Id. at
312, 595 N.E.2d at 883. If the answer to that inquiry is negative,
then this court must determine whether an actual conflict of interest
adversely affected the attorney’s performance. State v. Manross
(1988), 40 Ohio St.3d 180, 532 N.E.2d 735, syllabus, certiorari
denied (1989), 490 U.S. 1083, 109 S.Ct. 2106, 104 L.Ed.2d 667.”
State v. Walker (1998), 130 Ohio App.3d 247, 251, 719 N.E.2d 1042, quoting
State v. Ingol (1993), 89 Ohio App.3d 45, 48, 623 N.E.2d 598.
{¶6} In this case, the question of a potential conflict of interest was raised
by defense counsel to the trial court, so the trial court and defense counsel were
aware of the potential conflict. Thus, pursuant to Gillard, 64 Ohio St.3d 304, 595
N.E.2d 878, the trial court had an affirmative duty to inquire as to whether an
actual conflict of interest was present. A review of the record indicates that the
trial court extensively discussed the effect of a waiver on the potential conflict of
interest, but did not inquire as to whether an actual conflict of interest was
present. The trial court also did not inform Johnson that he could have a new
attorney if he so wished. Without more information concerning the circumstances
of the conflict, this court cannot ascertain whether the waiver was sufficient. This
is especially true with regard to whether or not it was necessary to advise Johnson
-7-
Case No. 5-09-28
that another attorney would be appointed for him if Johnson was not comfortable
with the potential conflict as laid out by the court.
{¶7} For example, if the representation of the informant was several
years earlier and on a matter entirely unrelated to the present case, there might
well be no actual conflict of interest and hence no need for any admonishment.
On the other hand, if the representation of the informant was related to matters
that led to the current charges against the defendant, there might be a conflict
significant enough to override even the most thorough of admonishments. Thus,
the trial court, in this case, needed to inquire into the prior representation of the
confidential informant to determine the required scope of the waiver, or whether
new counsel was required. Having failed to conduct this inquiry in this case, the
trial court did not comply with the requirements of Gillard, 64 Ohio St.3d 304,
595 N.E.2d 878.
{¶8} Pursuant to Gillard, the matter must be reversed and remanded for
the trial court to hold a hearing to determine whether an actual conflict of interest
existed. Id. at 312. If a conflict of interest is found, the trial court must then
conduct a new trial free from conflicts of interest. Id. However, if no actual
conflict of interest is found, then no new trial is necessary. Id. For the reasons set
forth above, the assignment of error is sustained.
-8-
Case No. 5-09-28
{¶9} The judgment of the Court of Common Pleas of Hancock County is
reversed, and the matter is remanded for further proceedings.
Judgment reversed
and cause remanded.
SHAW and PRESTON, JJ., concur.
__________________
-9-