State v. Haugabrook , 2016 Ohio 5838 ( 2016 )

[Cite as State v. Haugabrook, 2016-Ohio-5838.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103693
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RUSSELL T. HAUGABROOK
DEFENDANT-APPELLANT
JUDGMENT:
VACATED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-589774-A
BEFORE: Kilbane, J., Jones, A.J., and Boyle, J.
RELEASED AND JOURNALIZED: September 15, 2016
ATTORNEYS FOR APPELLANT
John D. Mizanin, Jr.
Harvey B. Bruner
Harvey B. Bruner & Co.
700 W. St. Clair Avenue
Suite 110
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Patrick J. Lavelle
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Russell T. Haugabrook (“Haugabrook”), appeals from
his guilty plea and sentence for drug trafficking, arguing that the trial court breached its
duty to inquire into the conflict of interest in the dual representation of Haugabrook and
his wife, Jada Warmington (“Warmington”). For the reasons set forth below, we vacate
his convictions and remand to the trial court to obtain a voluntary, knowing, and
intelligent waiver of the conflict of interest.
{¶2} In October 2014, Haugabrook and codefendants, Warmington and Jason
Houser (“Houser”), were charged in a four-count indictment.1 Count 1 charged each of
them with the illegal manufacture of drugs or the cultivation of marijuana. Count 2
charged each of them with trafficking marijuana. Count 3 charged each of them with
drug possession. Count 4 charged each of them with possessing criminal tools. Each
count carried several forfeiture specifications, and Counts 1-3 also carried a one-year
firearm specification.
{¶3} Haugabrook and his wife, Warmington, retained the same attorney to
represent them in the matter. In April 2015, the trial court held a hearing at which
Haugabrook and Warmington entered into a package plea agreement with the state of
Ohio. Prior to the plea colloquies, the trial court asked defense counsel about his clients’
waiver of their right to separate counsel. Haugabrook expressed his reservations about
1As of the release date of this opinion, Warmington and Houser have not filed
an appeal.
proceeding with dual representation. The court then took a recess so that Haugabrook
and Warmington could discuss the matter with defense counsel. When the parties
reconvened, both Haugabrook and Warmington stated that they waive any potential
conflict with the dual representation. The trial court then proceeded with the plea
hearing. Haugabrook pled guilty to drug trafficking (Count 2), which was amended to
list the amount of marijuana involved as equaling or exceeding 20,000 grams, but less
than 40,000 grams. The count as originally charge listed the amount of marijuana
involved as equal to or exceeding 40,000 grams. In addition, the one-year firearm
specification was deleted, but the forfeiture specifications remained. In exchange, the
remaining counts and specifications were nolled.
{¶4} Prior to sentencing, Haugabrook and Warmington retained new defense
counsel to represent them both. Defense counsel filed a motion to withdraw
Haugabrook’s guilty plea. The state opposed Haugabrook’s motion. Prior to
sentencing, defense counsel withdrew the motion. The court then proceeded with
sentencing. The court sentenced Haugabrook to the minimum mandatory sentence of
five years in prison.
{¶5} Haugabrook now brings this delayed appeal, raising the following three
assignments of error for review.
Assignment of Error One
The trial court breached its duty to inquire into a conflict of interest in the
dual representation of [Haugabrook] and [Warmington].
Assignment of Error Two
[Haugabrook] received ineffective assistance of counsel due to the conflict.
Assignment of Error Three
[Haugabrook] received ineffective assistance of counsel at sentencing due
to counsel’s withdrawal of the motion to withdraw plea.
Dual Representation
{¶6} In the first assignment of error, Haugabrook argues the trial court breached its
duty to inquire into a conflict of interest in the dual representation of Haugabrook and
Warmington. Specifically, Haugabrook contends the court did not explore whether a
conflict existed after he expressed his reservations with defense counsel.
{¶7} The Ohio Supreme Court has held that: “[w]here 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.” State v. Gillard, 64 Ohio St.3d 304, 311,
1992-Ohio-48, 595 N.E.2d 878. Once the court has ascertained that a potential conflict
exists, the trial court must alert the defendant to the possible consequences of the conflict
and obtain a voluntary, knowing, and intelligent waiver of such a conflict. State v.
Garcia, 6th Dist. Huron No. H-06-003, 2007-Ohio-1525, ¶ 16, discretionary appeal not
allowed, 115 Ohio St.3d 1410, 2007-Ohio-4884, 873 N.E.2d 1315. The trial court has
substantial latitude in determining the existence and waiver of an actual or potential
conflict of interest. State v. Keenan, 81 Ohio St.3d 133, 137, 1998-Ohio-459, 689
N.E.2d 929. Therefore, “the standard of review for determining whether the court erred
in its pretrial disqualification of defense counsel is whether it abused its broad
discretion.” State ex rel. Keenan v. Calabrese, 69 Ohio St.3d 176, 180, 631 N.E.2d 119(1994). “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.’”
(Citations omitted.) Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983), quoting State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).
{¶8} We note that the Sixth Amendment right to effective assistance of counsel
secures to a criminal defendant both the right to competent representation and the right to
representation that is free from conflicts of interest. Wood v. Georgia, 450 U.S. 261,
271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981); Glasser v. United States, 315 U.S. 60, 70, 62
S.Ct. 457, 86 L.Ed. 680 (1942). Courts 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.” Wheat v. United States, 486 U.S. 153,
160, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).
{¶9} In Glasser, the United States Supreme Court explained:
Upon the trial judge rests the duty of seeing that the trial is conducted with
solicitude for the essential rights of the accused. Speaking of the obligation
of the trial court to preserve the right to jury trial for an accused, Mr. Justice
Sutherland said that such duty “is not to be discharged as a matter of rote,
but with sound and advised discretion, with an eye to avoid unreasonable or
undue departures from that mode of trial or from any of the essential
elements thereof, and with a caution increasing in degree as the offenses
dealt with increase in gravity.” Patton v. United States, 281 U.S. 276,
312-313, [50 S.Ct. 253, 74 L.Ed. 854 (1930)]. The trial court should
protect the right of an accused to have the assistance of counsel. “This
protecting duty imposes the serious and weighty responsibility upon the trial
judge of determining whether there is an intelligent and competent waiver
by the accused. While an accused may waive the right to counsel, whether
there is a proper waiver should be clearly determined by the trial court, and
it would be fitting and appropriate for that determination to appear upon the
record.” Johnson v. Zerbst, 304 U.S. 458, 465, [58 S.Ct. 1019, 82 L.Ed.
1461 (1938)].
Id. at 71.
{¶10} In the instant case, Haugabrook and his wife appeared before the trial court
to proceed with their respective guilty pleas. At this joint plea hearing, the state outlined
the packaged plea deal offered to both Haugabrook and his wife. As part of the
packaged plea, both defendants had to agree to the deal. The state further asked the court
to place on the record the fact that the defendants waived any conflict of interest by
having the same attorney represent them. The trial court then asked defense counsel to
“put on the record your clients’ waiver of their right for separate counsel, that they
acknowledge any potential conflicts and waive those conflicts on the record.” Defense
counsel responded:
We will do that. I’ve been working with the husband and wife on this
particular case since the inception. I believe I arraigned both of them. I
worked with the prosecutor, assistant county prosecutor * * * in the interest
of both of the clients, and it is my understanding that I’ve been representing
these two clients since the inception of trial, inception of the case short of
trial.
{¶11} The following exchange then took place:
THE COURT: Okay. Mr. Haugabrook, Miss Warmington, do you
understand that I want you to say in open court you do waive any potential
conflicts associated with having [defense counsel] represent both of you in
this case?
DEFENDANT HAUGABROOK: No, I don’t.
DEFENDANT WARMINGTON: No. No.
THE COURT: Okay. So you’re not wanting separate counsel then, is that
what you’re telling me?
DEFENDANT HAUGABROOK: I mean could he help her and then I just
find me some new counsel?
THE COURT: You know, [defense counsel], why don’t you talk with your
clients for a moment because it doesn’t sound like — it sounds like we
might have an issue here.
{¶12} At that point, Haugabrook stated that there are “ a lot of issues.”
Haugabrook explained he had a problem with the forfeiture of items “that didn’t have
nothing to do with none of this.” He stated that his “wife had nothing to do with this,”
nor did his truck, car, or his computer. Haugabrook further stated that defense counsel
could represent his wife, but he wanted to find different defense counsel because “I will
stand up here and tell you everything that I did and everything that I’ve done, but
[Warmington] had nothing to do with this. Nothing.”
{¶13} Defense counsel then stated, “In retrospect, judge, because of her less
involvement in this case, she is getting a plea deal.” The court replied:
And I can see that from what’s been offered on the record. I think we have
a problem here. I think we have a problem here. I’m not going to go
forward if you guys are telling me that you aren’t going to waive a potential
conflict with having one attorney represent both of you.
The court asked Haugabrook if he could afford a new attorney. Haugabrook replied,
“[n]o, but my family said they will try and help me. I mean I’m trying. I mean at this
point I’m indigent, judge. I don’t have any money.”
{¶14} The court then stated:
You know my issue is this case has been going on since October, and my
bailiff is telling me every time you come in for a pretrial, there was no issue
with the dual representation. Now three, four, five days before trial, we
have an issue.
Well, I’m not real comfortable about that. This case has been going on for
a long time now, and I understand. If we have an issue, we have to take
care of it but obviously we’re not going to go forward with this plea hearing
today unless something changes.
We have a trial date. We have a trial date of April 27th. It’s been set
since February.
{¶15} Haugabrook requested a continuance because “they’re saying I’m getting a
whole bunch of conflict and things going on.” He also expressed his desire to reweigh
the confiscated marijuana. The trial court then explained to Haugabrook and his wife
that the trial date would remain set for April 27, 2015. The court stated:
Your trial date will remain set. You have until then to get a new lawyer if
you want to who can then file an appearance, but this all has to be done on
your behalf.
Now Miss Warmington, I don’t know what to do with you here. We seem
to have an issue this is a packaged plea deal. We can’t do one without the
other. You need to talk with your attorney * * *, both of you do[,] to figure
out what you want to do, but the trial date is going to remain set.
***
You know, you’re not telling me [“]I have a new lawyer[”.] You are just
telling me right now you don’t want to share this lawyer and that you don’t
want to enter this plea, and that is absolutely fine.
If we need to go to trial, this Court is happy to do so but I’m not moving
that date so you need to act quickly. Have a very frank discussion with
[defense counsel] with your wife. Figure out what’s best for both of you,
and if you need to hire another attorney, or ask the Court to appoint counsel,
file an affidavit of indigency and we will move forward from that point.
{¶16} The trial court then took a recess so that Haugabrook and Warmington
could discuss the matter with defense counsel. When they reconvened before the trial
court, the court explained that it would continue the plea hearing where it left off, which
was at the point where it had asked defendants to waive any potential conflict on the
record. Both Haugabrook and his wife replied, “I waive.” The court then noted that the
parties were “pretty nervous.” The court asked Haugabrook’s wife, “are you okay?
You’re visibly shaken.” Haugabrook’s wife responded, “[n]o.” The court told her to
“take a couple of deep breaths,” and to let the court know if she needed “a minute.” The
court then proceeded to conduct the Crim.R. 11 plea hearing, where both parties plead
guilty to the amended indictment.
{¶17} Under the circumstances of the instant case, where Haugabrook
represented to the court that he had reservations with defense counsel representing both
him and his wife because his wife was innocent and they were both subject to a package
deal, the trial court erred by not explaining to Haugabrook the risks of dual
representation, as well as the fact that he had a constitutional right to effective
representation free of conflicts. If it had done so, the court could have ensured that
Haugabrook fully understood his rights, and that Haugabrook was waiving the potential
conflict of interest voluntarily, knowingly, and intelligently.
{¶18} Accordingly, the first assignment of error is sustained.
Ineffective Assistance of Counsel
{¶19} In the second and third assignments of error, Haugabrook contends that both
his initially retained defense counsel and subsequent defense counsel were ineffective.
{¶20} Based on our disposition of the first assignment of error, however, we
overrule the second and third assignments of error as moot. App.R. 12.
{¶21} Accordingly, the judgment is vacated and the matter is remanded for the
trial court to fulfill its affirmative duty to obtain a voluntary, knowing, and intelligent
waiver of the conflict of interest.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
LARRY A. JONES, SR., A.J., and
MARY J. BOYLE, J., CONCUR