State v. Daniels , 2019 Ohio 5314 ( 2019 )

[Cite as State v. Daniels, 2019-Ohio-5314.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : MEMORANDUM OPINION
Plaintiff-Appellee, :
CASE NO. 2019-T-0079
- vs - :
RYAN DANIELS, SR., :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2019 CR
00199.
Judgment: Appeal dismissed.
Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, Ohio
44481-1092 (For Plaintiff-Appellee).
Antonio S. Nicholson, The Bradley Building, Suite 203, 1220 West Sixth Street,
Cleveland, Ohio 44113 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Ryan Daniels, Sr., appeals the trial court's November 7, 2019
order overruling retained counsel’s motion to withdraw and Daniels’ motion to continue
the jury trial and permitting new counsel to enter an appearance. We dismiss.
{¶2} On November 5, 2019, Daniels’ retained counsel moved to withdraw and
to continue the jury trial scheduled to commence November 12, 2019. On this same
date, Daniels’ new counsel moved to enter an appearance. Emphasizing the late timing
of the motions and the delay on trial, the court overruled counsel’s motion to withdraw
and continue but permitted Daniels’ new counsel to enter an appearance.
{¶3} Appellee, the state of Ohio moves to dismiss the appeal for lack of final
appealable order. A court of appeals has jurisdiction to hear a criminal appeal from a
“judgment or final order.” R.C. 2953.02.
{¶4} R.C. 2505.02(B) defines the types of orders that constitute final
appealable orders:
{¶5} “(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
{¶6} “(2) An order that affects a substantial right made in a special proceeding
or upon a summary application in an action after judgment;
{¶7} “(3) An order that vacates or sets aside a judgment or grants a new trial;
{¶8} “(4) An order that grants or denies a provisional remedy and to which both
of the following apply:
{¶9} “(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the appealing party
with respect to the provisional remedy.
{¶10} “(b) The appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims, and
parties in the action.
{¶11} “(5) An order that determines that an action may or may not be maintained
as a class action * * *.”
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{¶12} Daniels opposes dismissal arguing that the ruling denies him counsel of
choice and is therefore a final appealable order based on State v. Chambliss, 128 Ohio
St.3d 507, 2011-Ohio-1785, 947 N.E.2d 651.
{¶13} However, Chambliss limits its holding to the removal of retained counsel of
choice. It holds “[a] pretrial ruling removing a criminal defendant's retained counsel of
choice is a final order subject to immediate appeal” because it renders a post-trial
appeal ineffective or meaningless. (Emphasis added.) Id. at syllabus, ¶ 22 citing R.C.
2505.02(B)(4).
{¶14} Unlike Chambliss, the trial court’s decision before us does not remove
retained counsel of choice and allows new counsel to enter an appearance and
participate. Thus, Daniels is not denied counsel of choice.
{¶15} Moreover, Chambliss relies in part on the U.S. Supreme Court’s decision
in United States v. Gonzalez-Lopez, 548 U.S. 140, 152, 126 S. Ct. 2557, 165 L. Ed. 2d
409, (finding the denial of a defendant’s right to counsel of choice constitutes structural
error affecting the framework of the trial). Gonzalez-Lopez emphasizes that its holding
does not detract from a court’s “wide latitude in balancing the right to counsel of choice
against the needs of fairness * * * and against the demands of its calendar * * *.” Id.
Instead, trial courts continue to have the authority to limit a defendant’s right to counsel
of choice when faced with a belated request to change attorneys. Id. at 152 citing
Morris v. Slappy, 461 U.S. 1, 13, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983); accord State
v. Swogger, 5th Dist. Stark No. 2017CA00212, 2018-Ohio-3148, ¶ 59.
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{¶16} Further, the denial of a motion for a continuance is not
a final, appealable order. Miklovic v. Shira, 5th Dist. Knox No. 04-CA-27, 2005-Ohio-
3252, ¶ 25, citing Lamont v. Lamont, Geauga App. No. 2004-G-2591, 2004-Ohio-5515.
{¶17} Appellee's motion to dismiss for lack of a final appealable order is granted.
{¶18} Appeal dismissed.
TIMOTHY P. CANNON, J.,
MATT LYNCH, J.,
concur.
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