State v. Williams (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Williams, Slip Opinion No. 2021-Ohio-3152.]
NOTICE
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SLIP OPINION NO. 2021-OHIO-3152THE STATE OF OHIO, APPELLEE, v. WILLIAMS, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Williams, Slip Opinion No. 2021-Ohio-3152.]
Criminal Law—Sixth Amendment—Conflict of interest—Multiple representation of
codefendants—When a trial court does not know, and should not
reasonably have known, of a possible conflict of interest in an attorney’s
representation of two or more codefendants charged with a crime, the trial
court has no affirmative duty to inquire whether a conflict of interest
exists—Court of appeals’ judgment affirmed.
(Nos. 2020-0658 and 2020-0991—Submitted April 13, 2021—Decided
September 15, 2021.)
APPEALS from the Court of Appeals for Cuyahoga County,
No. 108333, 2020-Ohio-1378 and 2020-Ohio-3588.
_________________
STEWART, J.
SUPREME COURT OF OHIO
{¶ 1} In this discretionary appeal, we consider whether a trial court has an
affirmative duty to inquire into the possible conflict of interest created by an
attorney’s dual or multiple representation1 of codefendants in a criminal case.
Although making this inquiry is the better practice, we conclude that absent some
factor which would alert the trial court about a possible conflict of interest created
by such representation, the court has no affirmative duty to do so. We therefore
affirm the judgment of the court of appeals.
I. BACKGROUND
{¶ 2} In December 2018, appellant, Marshall Williams, and his wife,
Shawnte Williams, were indicted on charges related to drug possession and
trafficking. Thereafter, they agreed to a joint plea deal and subsequently pled guilty
to certain charges. Shawnte pled guilty to possession of criminal tools in violation
of R.C. 2923.24(A), a fifth-degree felony with a forfeiture specification. Marshall
pled guilty to one count of drug trafficking in violation of R.C. 2925.03(A)(2), a
first-degree felony with a forfeiture specification, and one count of drug possession
in violation of R.C. 2925.11(A), a fourth-degree felony with a forfeiture
specification. In exchange for their guilty pleas, the state nolled the four remaining
counts on Marshall’s indictment and the two remaining counts on Shawnte’s
indictment. The trial court sentenced Shawnte to five years of probation and
imposed a fine of $2,000. The court stated that the fine would be vacated if she
paid the court costs and probation-supervision fees within three years. The court
sentenced Marshall to nine years in prison for the trafficking offense and 18 months
for the possession offense, to be served concurrently. The court also imposed a fine
of $10,000 and ordered that Marshall forfeit two vehicles, two digital scales, eight
cell phones, and $14,630. The same attorney represented Shawnte and Marshall at
their plea and sentencing hearings. When asked by the trial court if they were
1. The terms “dual representation,” “multiple representation,” and “joint representation,” have the
same meaning throughout this opinion.
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satisfied with the representation they had received from their attorney, both
Marshall and Shawnte responded, “Yes.”
{¶ 3} On appeal to the Eighth District Court of Appeals, Marshall argued in
his third assignment of error that he was denied due process and his right to counsel,
in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States
Constitution and Article I, Section 10 of the Ohio Constitution. He asserted that
his convictions should be vacated because the trial court “failed to assure that [his]
counsel explained the very real conflict posed by joint representation” before
allowing the matter to proceed. The court of appeals overruled Marshall’s conflict-
of-interest claim, finding that “the record does not indicate any special
circumstances by which the trial court knew or reasonably should have known” of
a conflict. State v. Williams, 2020-Ohio-1378, ¶ 34. (“Williams I”). Specifically,
the court noted that Marshall did not object or express reservations about the dual
representation and that the plea deal was beneficial to Marshall and Shawnte. Id.
at ¶ 36-38. Moreover, the court determined that the record did not reveal an actual
conflict that adversely affected his counsel’s performance. Id. at ¶ 40-41.
{¶ 4} On April 20, 2020, Marshall filed a motion for reconsideration in the
court of appeals, and on May 26, 2020, he also filed a notice of appeal with this
court. On July 2, 2020, while Marshall’s memorandum in support of jurisdiction
was pending in this court, and for reasons unrelated to the proposition of law raised
in his appeal to this court,2 the court of appeals vacated its judgment in Williams I
and issued a subsequent opinion, once again affirming Marshall’s convictions.
State v. Williams, 2020-Ohio-3588 (“Williams II”). Since a motion for
reconsideration was pending before the court of appeals and this court had not yet
2. In his motion for reconsideration, Marshall asserted that in Williams I, the court of appeals had
failed to resolve one component of his fourth assignment of error—i.e., that his trial attorney was
ineffective for failing to seek a waiver of a mandatory fine. With the exception of a short additional
discussion of the fine-waiver issue, Williams II effectively mirrors Williams I.
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accepted jurisdiction to hear Williams I, the court of appeals had the authority to
reconsider and vacate its initial decision. See State v. Murphy, 49 Ohio St.3d 293,
296, 551 N.E.2d 1292 (1990) (a court of appeals retains jurisdiction to rule on an
application for reconsideration unless and until this court exercises its discretionary
and exclusive jurisdiction to hear the case). On August 5, 2020, we accepted
jurisdiction on Marshall’s single proposition of law. See 159 Ohio St.3d 1468,
2020-Ohio-3884, 150 N.E.3d 122. On August 12, 2020, Marshall appealed
Williams II, asserting the same proposition of law we accepted in Williams I.
{¶ 5} On September 25, 2020, the state filed a motion to dismiss Marshall’s
appeal in Williams I as having been improvidently allowed. In response to the
state’s motion, Marshall acknowledged that his appeal of the appellate court’s
judgment in Williams I was filed prematurely in this court because it was filed while
his application for reconsideration was pending in the court of appeals. And though
Marshall did not oppose the state’s motion, he urged this court to accept jurisdiction
of his proposition of law in Williams II, which was identical to the proposition of
law he raised in Williams I. This court accepted jurisdiction of Williams II, sua
sponte consolidated the cases, and ordered the cases to proceed on Marshall’s single
proposition of law already briefed in Williams I:
A trial court has a duty to inquire into the possible conflict
of interest created by an attorney’s dual or multiple representation
of codefendants in a criminal case.
See 160 Ohio St.3d 1438, 2020-Ohio-4983, 155 N.E.3d 939; 160 Ohio St.3d 1484,
2020-Ohio-5454, 158 N.E.3d 616; 160 Ohio St.3d 1484, 2020-Ohio-5454, 158
N.E.3d 612.
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II. ANALYSIS
{¶ 6} The fundamental right to counsel includes a “correlative right to
representation free from conflicts of interest.” State v. Gillard, 64 Ohio St.3d 304,
311, 595 N.E.2d 878 (1992). “Both defense counsel and the trial court are under
an affirmative duty to ensure that a defendant’s representation is conflict-free.”
State v. Dillon, 74 Ohio St.3d 166, 167-168, 657 N.E.2d 273 (1995). Defense
counsel has a duty to provide effective, conflict-free assistance of counsel under the
Sixth Amendment and its supporting caselaw, see, e.g., Cuyler v. Sullivan, 446 U.S.
335, 345, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and pursuant to the Ohio Rules
of Professional Conduct.3 A trial court’s affirmative duty to inquire into multiple
representation of codefendants arises when the trial court knows or has reason to
know that a possible conflict of interest exists or when a defendant objects to the
multiple representation. State v. Manross, 40 Ohio St.3d 180, 181-182, 532 N.E.2d
735 (1988).
{¶ 7} This court has explained that when reviewing a case in which a trial
court did not inquire into whether an attorney’s representation of multiple
defendants presented a conflict of interest, courts must apply a two-step approach.
Id. at 181. First, the reviewing court must determine whether the trial court’s duty
to inquire arose in the first instance; that is, in the absence of a timely objection,
whether the trial court knew or reasonably should have known that a possible
conflict existed. Id.; see also Gillard at 311-312; Cuyler at 346-347. If the trial
court’s affirmative duty arose but it did not inquire, the case must be remanded to
the trial court with instructions to conduct a hearing to determine whether an actual
conflict of interest existed. Gillard at 311-312; see also State v. Johnson, 185 Ohio
3. Prof.Cond.R. 1.7(c) prohibits an attorney from representing a client, regardless of the client’s
informed consent, if the representation is prohibited by law or when the representation would
involve the assertion of a claim by one client against another client represented by the attorney in
the same proceeding.
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App.3d 654, 2010-Ohio-315, 925 N.E.2d 199, ¶ 6-8 (3d Dist.) (remanding for a
hearing to determine whether an actual conflict existed when a possible conflict
was raised and discussed, but the trial court did not inquire whether an actual
conflict existed and did not advise the defendant of his right to conflict-free
counsel); State v. Haugabrook, 8th Dist. Cuyahoga No. 103693, 2016-Ohio-5838,
¶ 17, 21 (vacating a guilty plea when the defendant expressed reservations about
dual representation with his wife; trial court erred by not explaining the risks of
dual representation and not advising the defendant of his constitutional right to
conflict-free representation). In the absence of an objection or circumstances when
the trial court should reasonably have known about a possible conflict, the trial
court may assume that there is no conflict or that the risk of conflict is known to
and accepted by the codefendants. Cuyler at 346-347.
{¶ 8} Second, if the reviewing court determines that the trial court’s
affirmative duty to inquire into a possible conflict with multiple representation did
not arise, the defendant must show that an actual conflict of interest adversely
affected his lawyer’s performance. Manross at 182; accord Dillon at 169. An
actual conflict of interest exists when “ ‘the defendants’ interests do diverge with
respect to a material factual or legal issue.’ ” Dillon at 169, quoting Cuyler at 356,
fn. 3 (Marshall, J., concurring in part and dissenting in part). Raising the possibility
of a conflict of interest is insufficient. Manross at 182; see also Cleveland v.
Harris, 8th Dist. Cuyahoga No. 105545, 2018-Ohio-1522, ¶ 19 (finding no actual
conflict when the defendant failed to direct the reviewing court to specific instances
in the record demonstrating an actual conflict of interest).
{¶ 9} In Manross, a mother and son, Rose and Russell Manross, were
charged in a ten-count indictment with various offenses related to drug trafficking.
40 Ohio St.3d at 180, 532 N.E.2d 735. Russell was charged with multiple counts
of trafficking and Rose was charged with a single count of aiding and abetting the
sale of cocaine. Id. They hired an attorney to represent them at a joint trial, and a
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jury subsequently found them guilty. Id. at 180-181. On direct appeal, the
Manrosses argued that they were denied the effective assistance of counsel because
they were represented by the same attorney and that the trial court erred by failing
to inquire into the possibility of a conflict of interest inherent in the attorney’s joint
representation. They argued further that an actual conflict existed in their case
because Rose was charged with only one count while Russell was charged with
multiple counts and because Rose testified and Russell did not. Id. at 181.
{¶ 10} The court of appeals reversed their convictions and held that when
“the record does not demonstrate that the trial court advised appellants of the
potential problems or prejudice” that might result from joint representation, it
cannot be determined whether the decision to have joint representation was “both
an informed and voluntary choice.” State v. Manross, 11th Dist. Ashtabula No.
1295, 1987 WL 14175, *3 (July 10, 1987). We reversed the court of appeals and
reinstated the judgment of the trial court. Manross, 40 Ohio St.3d at 183, 532
N.E.2d 735. We acknowledged that while the better practice would be for trial
courts to advise each defendant of his or her right to separate representation, a trial
court’s failure to do so does not necessarily amount to error. Id. at 182. Unless the
trial court knows or has reason to know of a potential conflict, the court does not
have an affirmative duty to inquire about the attorney’s joint representation of
codefendants. Id. Further, if the trial court’s affirmative duty to inquire did not
arise, then the defendant must show that an actual conflict of interest adversely
affected the representation. Id.
{¶ 11} In Manross, neither of the codefendants objected to the dual
representation, and thus, it was their burden on appeal to demonstrate that an actual
conflict existed and that the conflict adversely affected their lawyer’s performance.
Id. We found no actual conflict. The Manrosses’ respective defenses did not result
in one assigning blame to the other and they had a common interest in attacking the
credibility of the state’s witnesses. Id. at 182-183. Furthermore, the fact that Rose
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was charged with a single count, while Russell was charged with nine counts, did
not demonstrate an actual conflict of interest. Id. at 183.
{¶ 12} In Gillard, we again considered the issue of dual representation, this
time finding that the trial court’s affirmative duty to inquire into a possible conflict
of interest did arise. 64 Ohio St.3d at 311-312, 595 N.E.2d 878. In that case, the
same trial counsel represented two brothers, John and William Gillard, at a
preliminary hearing in the municipal court. Id. at 306. Both men had been arrested
in connection with the shooting deaths of two people and the attempted aggravated
murder of a third person. Id. at 305-306. Following the preliminary hearing, the
attempted-aggravated-murder and aggravated-murder charges against William
were dismissed and, on advice of counsel, William pleaded no contest to a
misdemeanor charge of discharging a firearm outside a residence. Id. at 306. John,
however, was indicted on aggravated-murder charges with death-penalty
specifications, and his case proceeded to trial with the same counsel who had
represented both brothers at the preliminary hearing. Id. at 305-306.
{¶ 13} In the fifth week of John’s trial, counsel called William, whose case
had been dismissed by the municipal court, to testify as a defense witness. Id. at
307. The state then informed the trial court that a grand-jury investigation into
William was ongoing and that a potential conflict of interest existed as a result of
the prior dual representation of the brothers. Id. The trial court advised William of
his Fifth Amendment right not to testify in light of the ongoing grand-jury
investigation. Id. at 308. The trial court further stated that there may be conflicts
related to the prior dual representation and appointed independent representation
for William. However, the court made no inquiry into whether John had received
and would continue to receive conflict-free representation. Id. at 308.
{¶ 14} William then testified that the charges against him had been
dismissed after the preliminary hearing, while the charges against John had not
been; he also testified that he had never had a gun on the day in question and had
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not been involved with the shootings. Id. “On cross-examination, over defense
counsel’s objection, the state presented evidence placing William at the scene and
implicating him as a participant in the shootings.” Id. at 308. John was convicted,
and the jury recommended the death penalty. Id. at 305.
{¶ 15} On review, we found that “the trial court knew (or at least should
have known) that a possible conflict of interest existed,” and thus, the trial court
had an affirmative duty to inquire into the possible conflict to determine whether
John “had received, and would receive, the right to conflict-free counsel guaranteed
him by the Sixth Amendment to the United States Constitution.” (Emphasis sic.)
Id. at 311-312. We noted that the state had specifically brought the possible conflict
of interest to the court’s attention. Id. at 307. Moreover, the potential conflict was
apparent in the record. Id. at 307-308. Having found that the trial court’s
affirmative duty to inquire had arisen, we were unable to determine whether there
was an actual conflict of interest. Id. at 312. The trial court’s limited inquiry and
appointment of independent counsel for William was insufficient to satisfy its
constitutionally required duty to inquire into whether John’s right to conflict-free
counsel was protected. Id. Thus, despite “overwhelming evidence” of John’s guilt,
we remanded the case to the trial court with instructions to conduct a hearing to
determine whether an actual conflict of interest existed. Id.
{¶ 16} Against this backdrop, we turn to the facts of this case to first
determine whether the trial court’s affirmative duty to inquire into the possibility
of a conflict related to the dual representation arose. We agree with the court of
appeals that it did not. 2020-Ohio-3588 at ¶ 36. The transcript is clear that no
possible conflict was brought to the trial court’s attention. Further, there is nothing
in the record to indicate that the trial court should have reasonably known of a
possible conflict. Marshall was given opportunities to address the court and did not
say anything that would have reasonably put the court on notice of a possible
conflict created by the dual representation. State v. Ingol, 89 Ohio App.3d 45, 49,
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623 N.E.2d 598 (9th Dist.1993) (absent an objection or circumstance showing the
court should have reasonably known of a possible conflict, a trial court may assume
no conflict exists or that the risk is known and accepted); Haugabrook, 2016-Ohio-
5838, at ¶ 17, 21 (vacating appellant’s guilty plea after finding that prior to pleading
guilty, appellant had expressed reservations to the trial court with the dual
representation of him and his wife, claiming that she was innocent and they were
both subject to a package plea deal).
{¶ 17} Here, when the trial court asked Marshall whether he was satisfied
with the representation he received, he replied that he was. And when the trial court
asked if there was anything about his case or the proceedings that he did not
understand, he said no. Unlike in Gillard, where trial testimony demonstrated the
possibility of incompatible interests, there is nothing in the record before us
indicating that the trial court should have been aware of the possibility of a conflict.
Accordingly, we find that the trial court did not have an affirmative duty to inquire
into a possible conflict with the dual representation of Marshall and his wife.
{¶ 18} Having found that the trial court had no affirmative duty to inquire
into the possibility of a conflict of interest, we now examine whether an actual
conflict existed—that is, whether Marshall’s interests diverged from his wife’s
interests with respect to a material legal or factual issue. Dillon, 74 Ohio St.3d at
169, 657 N.E.2d 273. We find no indication that their interests diverged, and
Marshall has not directed us to any instance in his case when his defense diverged
from his wife’s defense on a material legal or factual issue. State v. Smith, 3d Dist.
Hancock No. 5-11-10, 2012-Ohio-5020, ¶ 29-31 (finding an actual conflict based
on the divergence of interests where it appeared that one client’s best interest was
to seriously consider a plea in exchange for her testimony against her codefendant).
When Marshall and his wife addressed the court at the sentencing hearing, his wife
offered an apology for her poor decisions and expressed her intent to focus on her
health and her family. Marshall took responsibility for his actions and explained
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that drugs and the sale of drugs had ravaged his life and the lives of other family
members for decades and that he was looking for a way out. He also explained that
he had sold drugs because he was trying to raise money to pay for surgery that his
wife needed. He requested that the court be as lenient as possible so that he could
get home to his wife and his grandchildren and so that he could demonstrate to the
court that he is a positive and productive citizen.
{¶ 19} The statements made by Marshall do not diverge from his wife’s
statements, and he did not assign blame to her or indicate that he was bearing
criminal culpability that properly belonged to her. Marshall argues that his interests
could have diverged from those of his wife, but absent a showing that the trial court
had the affirmative duty to inquire, asserting the possibility of a conflict of interest
is insufficient to establish “the constitutional predicate for [a] claim of ineffective
assistance of counsel.” Manross, 40 Ohio St.3d at 182, 532 N.E.2d 735. Further,
the fact that his wife was charged with fewer offenses than Marshall was charged
with does not establish an actual conflict, id. at 183; nor does the fact that she
received a more advantageous plea offer, State v. Ermekeil, 8th Dist. Cuyahoga
Nos. 63703 and 63704, 1993 WL 367082, *13 (Sept. 16, 1993).
{¶ 20} The rights Marshall is seeking to protect are his Sixth Amendment
right to conflict-free counsel and his fundamental right to a fair trial. But there is
no indication that either of those rights were violated in his case. Marshall argues
that nothing in the record establishes that he knowingly waived any potential
conflict or that counsel explained the potential conflict. Marshall stops short,
however, of asserting that defense counsel actually failed to provide him with this
explanation. Further, Marshall does not put forth an alternative defense or strategy
that was not undertaken because of the dual representation. See State v. West, 2018-
Ohio-640, 106 N.E.3d 96, ¶ 26 (12th Dist.) (finding that in order to demonstrate
an actual conflict of interest, a defendant must put forth a viable alternative defense
that was not undertaken due to the attorney’s divided loyalties). We agree with the
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court of appeals that the record in this case does not reveal a violation of Marshall’s
right to conflict-free representation. 2020-Ohio-3588 at ¶ 41. Furthermore, we find
no violation of Marshall’s fundamental right to a fair trial.
{¶ 21} Finally, Marshall asks us to hold that judicial inquiry into a potential
conflict of interest is required whenever a trial court is aware that two or more
criminal codefendants are being represented by the same attorney. He argues that
this is a safer, more transparent, and more just rule. Further, Marshall asserts in his
merit brief that judicial advisement into an attorney’s potential conflict of interest
in a case involving multiple representation is an “unmitigated good,” because what
the court loses in a small amount of time it will “regain tenfold in both the
appearance and fact of fairness, transparency, and professionalism.” (Emphasis
sic.) Marshall also calls our attention to a number of jurisdictions that require
judicial inquiry into multiple representation by rule.4
{¶ 22} As we observed in Manross, we agree that the better practice is for
the trial court to make a prompt inquiry and advisement in cases involving joint
representation of codefendants, even if such an inquiry and advisement is not
constitutionally required. 40 Ohio St.3d at 182, 532 N.E.2d 735. We also recognize
that defendants might not know of their right to separate counsel and that there
could be instances in which lawyers may take advantage of this ignorance, in spite
of their duty to provide effective assistance of counsel that is free from any conflict
of interest. But requiring trial courts to promptly inquire about an attorney’s
potential conflict of interest whenever that attorney represents two or more criminal
codefendants should be done by rule or by legislation.
4. Fed.R.Crim.P. 44(c)(2) provides, “The court must promptly inquire about the propriety of joint
representation and must personally advise each defendant of the right to the effective assistance of
counsel, including separate representation.” See also W.Va.R.Crim.P. 44(c); Mich.Ct.R. 6.005(F);
Ky.R.Crim.P. 8.30(1).
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III. CONCLUSION
{¶ 23} There is nothing in the record of this case giving rise to an
affirmative duty of the trial court to inquire about a potential conflict of interest
resulting from the dual representation of Marshall and Shawnte Williams.
Furthermore, the record does not reveal that any actual conflict of interest existed
during trial counsel’s representation of the couple. Accordingly, we hold that when
a trial court does not know, and should not reasonably have known, of a possible
conflict of interest in an attorney’s representation of two or more codefendants
charged with a crime, the trial court has no affirmative duty to inquire whether a
conflict of interest exists. We affirm the judgment of the Eighth District Court of
Appeals.
Judgment affirmed.
O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, and DONNELLY, JJ.,
concur.
BRUNNER, J., dissents, with an opinion.
_________________
BRUNNER, J., dissenting.
{¶ 24} The right to counsel is not protected solely by the Sixth Amendment
to the United States Constitution. Article I, Section 10 of the Ohio Constitution
also guarantees the right to counsel, providing that “[i]n any trial, in any court, the
party accused shall be allowed to appear and defend in person and with counsel.”
The majority decides this case solely on the Sixth Amendment, making no mention
of Article I, Section 10 of the Ohio Constitution, even though defendant-appellant,
Marshall Williams, made clear that he sought to invoke that right in his briefs to
the court of appeals and to this court.
{¶ 25} I believe that the majority opinion’s analysis is incomplete. I would
address the right to counsel in Article I, Section 10 of the Ohio Constitution and
hold that it requires a trial court to make a prompt inquiry into whether a conflict
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exists any time two or more defendants facing charges arising out of the same
matter are represented by the same attorney. Because the trial court in this matter
did not conduct such an inquiry, I would remand this matter to the trial court for it
to determine whether an actual conflict existed. Further, because the majority
opinion indicates that inquiries into multiple representation should be addressed by
a rule or a statute, I note several specific matters any such rule or statute must
address to sufficiently protect the right to counsel.
Article I, Section 10 of the Ohio Constitution
{¶ 26} The Sixth Amendment body of law relied on by the majority opinion
has been well established for over 40 years. The Sixth Amendment guarantees a
criminal defendant the right “to have the Assistance of Counsel for his defence,”
which includes the right to counsel free from conflicts arising from counsel’s
representation of multiple individuals in the same matter, Holloway v. Arkansas,
435 U.S. 475, 489-490, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). That right, however,
requires a trial court to initiate an inquiry into the propriety of multiple
representation only when the court “knows or reasonably should know that a
particular conflict exists.” Cuyler v. Sullivan, 446 U.S. 335, 346-347, 100 S.Ct.
1708, 64 L.Ed.2d 333 (1980). If the trial court did not know and should not
reasonably have known that a conflict existed, then “a defendant who raised no
objection at trial must demonstrate that an actual conflict of interest adversely
affected his lawyer’s performance” in order to establish a Sixth Amendment
violation. Id. at 347-348.
{¶ 27} Between the late 1980s and the mid-1990s, this court applied
Holloway and Cuyler on several occasions. See State v. Manross, 40 Ohio St.3d
180, 181-183, 532 N.E.2d 735 (1988) (holding that the defendants did not show
that an actual conflict existed); State v. Gillard, 64 Ohio St.3d 304, 306-312, 595
N.E.2d 878 (1992) (holding that the trial court knew or should have known that a
potential conflict existed based on the facts of the case and remanding for an inquiry
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into whether an actual conflict that adversely affected counsel’s performance
existed); State v. Dillon, 74 Ohio St.3d 166, 167-170, 657 N.E.2d 273 (1995)
(holding that the facts of the case established that the trial court had no duty to
inquire into the possibility of a conflict and that an actual conflict did not exist).
Those three cases represent this court’s primary decisions applying the Sixth
Amendment right to counsel in the context of multiple representation. The
appellate court in this case applied that well-established law, and today, the
majority opinion does little more than simply affirm.
{¶ 28} Our law caselaw applying Article I, Section 10, however, is sparse.
We have held that the provision is “comparable to but independent of similar
guarantees provided by the Sixth Amendment to the United States Constitution.”
State v. Milligan, 40 Ohio St.3d 341, 533 N.E.2d 724 (1988), paragraph one of the
syllabus. The similarity between the two provisions perhaps stems from the fact
that both provide fundamental rights. On this point, the United States Supreme
Court’s discussion of the Sixth Amendment right to counsel also describes
Article I, Section 10 well:
[The right to counsel] embodies a realistic recognition of the
obvious truth that the average defendant does not have the
professional legal skill to protect himself when brought before a
tribunal with power to take his life or liberty, wherein the
prosecution is presented by experienced and learned counsel. That
which is simple, orderly, and necessary to the lawyer—to the
untrained layman—may appear intricate, complex, and mysterious.
***
* * * “Even the intelligent and educated layman has small
and sometimes no skill in the science of law. * * * He is unfamiliar
with the rules of evidence. Left without the aid of counsel he may
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be put on trial without a proper charge, and convicted upon
incompetent evidence, or evidence irrelevant to the issue or
otherwise inadmissible. He lacks both the skill and knowledge
adequately to prepare his defence, even though he have a perfect
one. He requires the guiding hand of counsel at every step in the
proceedings against him.” The Sixth Amendment withholds from
federal courts, in all criminal proceedings, the power and authority
to deprive an accused of his life or liberty unless he has or waives
the assistance of counsel.
Johnson v. Zerbst, 304 U.S. 458, 462-463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938),
quoting Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
{¶ 29} A second similarity between the right to counsel under Article I,
Section 10 and the comparable right under the Sixth Amendment is that they both
include the right to effective counsel free from conflicts, including conflicts arising
from multiple representation. The right to counsel under Article I, Section 10
would mean little in this context if “the advocate’s conflicting obligations have
effectively sealed his lips on crucial matters,” Holloway, 435 U.S. at 490, 98 S.Ct.
1173, 55 L.Ed.2d 426. Finally, a third similarity between the two guarantees is the
important role of the trial court in protecting the right to counsel: “ ‘Upon the trial
judge rests the duty of seeing that the trial is conducted with solicitude for the
essential rights of the accused. * * * The trial court should protect the right of an
accused to have the assistance of counsel.’ ” (Ellipsis added in Holloway.) Id. at
484, quoting Glasser v. United States, 315 U.S. 60, 71, 62 S.Ct. 457, 86 L.Ed. 680(1942), superseded by rule on other grounds, Bourjaily v. United States, 483 U.S.
171, 181, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987).
{¶ 30} When considering how Article I, Section 10 may differ from the
Sixth Amendment, we have stated that we look for “compelling reasons why Ohio
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constitutional law should differ from the federal law on [the] issue.” State v.
Wogenstahl, 75 Ohio St.3d 344, 363, 662 N.E.2d 311 (1996). And we have found
that the right to counsel under the Ohio Constitution is broader than its federal
counterpart in at least one case. See State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-
1519, 41 N.E.3d 1156, ¶ 23-27 (holding that the right to counsel in the Ohio
Constitution provides greater protection than the right to counsel protected by the
Due Process Clause of the Fourteenth Amendment with respect to certain juvenile
delinquency adjudications). In my view, Williams has identified compelling
reasons why the right to counsel under Article I, Section 10 provides greater
protection than the Sixth Amendment in this case. Thus, I would hold that Article I,
Section 10 requires a trial court to inquire into the propriety of multiple
representation when an attorney represents two or more individuals charged with
related crimes.
{¶ 31} We have previously acknowledged that the trial court plays an
important role in a defendant’s waiver of the right to counsel. “In order to establish
an effective waiver of [the] right to counsel, the trial court must make sufficient
inquiry to determine whether [the] defendant fully understands and intelligently
relinquishes that right.” State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976),
paragraph two of the syllabus. A defendant’s decision to accept multiple
representation must also be knowing and intelligent. See Cuyler, 446 U.S. at 351,
100 S.Ct. 1708, 64 L.Ed.2d 333 (Brennan, J., concurring in part and in the result).
The trial court, “therefore, must play a positive role in ensuring that the choice was
made intelligently.” Id.{¶ 32} One reason for this is that although multiple representation can be
beneficial to each defendant involved, see Glasser, 315 U.S. at 92, 62 S.Ct. 457, 86
L.Ed. 680 (Frankfurter, J., dissenting) (“A common defense often gives strength
against a common attack”), it can also lead to conflicts of interest that undermine
the right to counsel and the administration of justice more generally. As the United
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States Supreme Court has acknowledged, “[j]oint representation of conflicting
interests is suspect because of what it tends to prevent the attorney from doing.”
Holloway, 435 U.S. at 489-490, 98 S.Ct. 1173, 55 L.Ed.2d 426. For example, it
can prevent an attorney from fully exploring the possibility that one client might
enter into a plea agreement requiring him to testify against the attorney’s other
client in exchange for the opportunity to plead guilty to a lesser offense. Id. at 490.
Multiple representation “may also prevent an attorney from challenging the
admission of evidence prejudicial to one client but perhaps favorable to another, or
from arguing at the sentencing hearing the relative involvement and culpability of
his clients in order to minimize the culpability of one by emphasizing that of
another.” Id. Given this, when a defendant accepts an attorney’s representation
that involves multiple clients in related matters, the trial court must take these
dangers into account if it is to fulfill its duty to conduct the trial “ ‘with solicitude
for the essential rights of the accused,’ ” Cuyler at 351 (Brennan, J., concurring in
part and in the result), quoting Glasser at 71.
{¶ 33} The state argues that the protection of Article I, Section 10 is equal
to the protection of the Sixth Amendment on this point and that an inquiry is only
required when the court knows or should reasonably know of a potential conflict or
if the defendant objects to multiple representation. But that would require a trial
court to inquire into the propriety of multiple representation only when the potential
for a conflict is apparent from the record. Placing such heavy reliance on concerns
apparent from the record is counterintuitive in the face of multiple representation
since that very status often prevents an attorney from making that record, depending
on the interests of their multiple clients. See Holloway at 489-490. Declining to
recommend that one client pursue a plea agreement because it would require
testimony against another client, is hardly something that would be preserved in the
record. See id. at 490; see also Cuyler at 358 (Marshall, J., concurring in part and
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dissenting in part) (“in many cases the effects of the conflict on the attorney’s
performance will not be discernible from the record”).
{¶ 34} Nor is it sufficient to rely on the attorney engaged in multiple
representation to notify the court of a potential conflict. “[E]ven the most diligent
attorney may be unaware of facts giving rise to a potential conflict.”
Fed.R.Crim.P. 44, Advisory Committee Notes to 1979 Amendment. “Often
‘counsel must operate somewhat in the dark and feel their way uncertainly to an
understanding of what their clients may be called upon to meet upon a trial’ and
consequently ‘are frequently unable to foresee developments which may require
changes in strategy.’ ” Id., quoting United States v. Carrigan, 543 F.2d 1053, 1058
(2d Cir.1976) (Lumbard, J., concurring).
{¶ 35} We likewise should not ignore the potential that, for one reason or
another, an attorney may not correctly assess his or her ability to fully represent the
interests of multiple clients simultaneously. See Cuyler, 446 U.S. at 351, 100 S.Ct.
1708, 64 L.Ed.2d 333 (Brennan, J., concurring in part and concurring in the result)
(“[T]he Constitution also protects defendants whose attorneys fail to consider, or
choose to ignore potential conflict problems”). In Gillard, for example, when the
prosecution informed the court of a potential conflict arising from the defense
attorney’s representation of the defendant and of his brother, who was still under
investigation for related offenses, the defendant’s attorney insisted that he could
fairly represent both. See Gillard, 64 Ohio St.3d at 307-308, 595 N.E.2d 878. We
observed that the trial court had correctly rejected the defense attorney’s optimism
when it appointed a new attorney to represent the defendant’s brother; however, we
held that the court erred when it failed to inquire into whether the attorney’s
continued representation of the defendant was permissible, finding that “there [was]
a clear possibility of [a] conflict of interest on the facts of [the] case.” Id. at 308,
311-312.
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{¶ 36} Similarly, in Cuyler, the conflict was established only in a
postconviction hearing, at which one of the defendant’s attorneys candidly admitted
that he had wanted the defendant not to present any evidence after the prosecution
rested its case because doing so would have exposed witnesses he planned to
present in defense of two other clients in their upcoming trials on related offenses.
Cuyler at 338. But that sort of admission is unusual. One would normally “expect
the attorney to be unwilling to give such supportive testimony, thereby impugning
his professional efforts.” Id. at 358 (Marshall, J., concurring in part and dissenting
in part).
{¶ 37} We also cannot ignore that multiple representation may result in
greater compensation for an attorney. Unfortunately, that financial incentive may
influence counsel’s judgment of his or her ability to represent the interests of both
clients simultaneously.
{¶ 38} Together, these concerns envisage the fair conclusion that Article I,
Section 10 requires a trial court to inquire into the propriety of multiple
representation in any case in which two or more defendants charged with crimes
arising out of the same matter are represented by the same attorney. See Colon v.
Fogg, 603 F.2d 403, 407 (2d Cir.1979) (“Such an inquiry is usually the only
practical method of ascertaining whether the joint representation may prejudice the
defendant and, if so, whether he nevertheless desires to make an informed waiver
of his right to independent representation”). I would therefore hold that such an
inquiry was required in this case. I would also hold that because an inquiry was not
conducted in this case, the appropriate remedy is to remand the case to the trial
court to determine whether an actual conflict existed.
Principles to consider in a rule or statute concerning multiple representation
{¶ 39} Because the majority does not address the right to counsel under
Article I, Section 10 of the Ohio Constitution, it remains an open question in future
cases whether that provision requires a trial court to inquire into the propriety of
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multiple representation any time an attorney represents two or more individuals
charged with related crimes. Instead, the majority concludes that “requiring trial
courts to promptly inquire about an attorney’s potential conflict of interest
whenever that attorney represents two or more criminal codefendants should be
done by rule or by legislation.” Majority opinion at ¶ 22. That being the case, I
suggest that there are several key points that any such rule or legislation should
address.
{¶ 40} The text of Fed.R.Crim.P. 44 is a good starting point. It delineates
the court’s responsibilities as follows:
(c) Inquiry Into Joint Representation.
(1) Joint Representation. Joint representation occurs when:
(A) two or more defendants have been charged jointly under
Rule 8(b) or have been joined for trial under Rule 13; and
(B) the defendants are represented by the same counsel, or
counsel who are associated in law practice.
(2) Court’s Responsibilities in Cases of Joint
Representation.
The court must promptly inquire about the propriety of joint
representation and must personally advise each defendant of the
right to the effective assistance of counsel, including separate
representation. Unless there is good cause to believe that no conflict
of interest is likely to arise, the court must take appropriate measures
to protect each defendant’s right to counsel.
(Boldface and italics sic.) Fed.R.Crim.P. 44(c). Notably, a general advisement
given to a group of defendants would not suffice under this rule. The requirement
that the trial court take “appropriate measures” except where there is “good cause
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to believe that no conflict of interest is likely to arise” also ensures that the inquiry
and advisement is not a mere formality. Because every case is different, the court
should specifically consider what “additional measures” may be appropriate in each
case.
{¶ 41} Any rule or statute concerning the dangers of multiple representation
should also address several other matters. For example, the inquiry and advisement
by the trial court should be placed on the record. See, e.g., Mich.Ct.R. 6.005(F)(1)
through (3) (requiring statements on the record from the attorney(s) engaged in
multiple representation and the defendants and findings on the record by the court
“that joint representation in all probability will not cause a conflict of interest”).
Without a record of what was said, an appellate court will be unable to conduct a
meaningful review. The inquiry and advisement should also be conducted outside
the presence of a jury, and “[w]henever it is necessary to make a more particularized
inquiry into the nature of the contemplated defense, the court should ‘pursue the
inquiry with defendants and their counsel on the record but in chambers’ so as ‘to
avoid the possibility of prejudicial disclosures to the prosecution.’ ”
Fed.R.Crim.P. 44, Advisory Committee Notes to 1979 Amendment, quoting
United States v. Foster, 469 F.2d 1, 5 (1st Cir.1972).
{¶ 42} A rule or statute should also make clear that the obligation of the
court to ensure that multiple representation does not result in a conflict of interest
is continuing. This is important because some conflicts may not clearly arise until
later in the case. See Cuyler, 446 U.S. at 354, 100 S.Ct. 1708, 64 L.Ed.2d, fn. 1
(Marshall, J., concurring in part and dissenting in part) (observing that when an
inquiry occurs at an early stage of the case, “not all possible conflicts might be
anticipated”); Fryar v. United States, 404 F.2d 1071, 1073 (10th Cir.1968) (“able
counsel [cannot] anticipate with complete accuracy the course that a criminal trial
may take” with respect to potential conflicts or prejudice from joint representation).
When new developments indicate a new or increased potential for a conflict, the
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court must therefore inquire and advise again. See, e.g., Mich.Ct.R. 6.005(G)
(requiring courts to inquire into “any potential conflict that becomes apparent” “at
any time, including trial,” and to “take such action as the interests of justice
require”); see also Fed.R.Crim.P. 44, Advisory Committee Notes to 1979
Amendment (“The obligation placed upon the court by rule 44(c) is a continuing
one, and thus in a particular case further inquiry may be necessary on a later
occasion because of new developments suggesting a potential conflict of interest”).
{¶ 43} Finally, when a defendant seeks to waive the right to separate
counsel free from conflicts, the waiver must be provided after any potential conflict
has been clearly identified and explained on the record. See, e.g.,
Ky.R.Crim.P. 8.30(1) (requiring a defendant seeking to waive the right to separate
representation to “execute[] and cause[] to be entered in the record a statement that
the possibility of a conflict of interests on the part of the attorney has been explained
to the defendant by the court and that the defendant nevertheless desires to be
represented by the same attorney”). The waiver should be provided in “ ‘clear,
unequivocal, and unambiguous language.’ ” United States v. Garcia, 517 F.2d 272,
278 (5th Cir.1975), quoting Natl. Equip. Rental, Ltd. v. Szukhent, 375 U.S. 311,
332, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964) (Black, J., dissenting).
{¶ 44} Not only would requiring an inquiry into the propriety of multiple
representation in all cases provide greater protection of the right to counsel, it would
also have a positive effect on the cost of administering justice. The small
investment that is required for a trial court to conduct an inquiry is far outweighed
by the time and resources that are preserved by way of obviating the need for (1)
trial continuances for related defendants who would need new counsel and then
new counsel’s need to become familiar with the case and the evidence, (2) the
appellate review of alleged conflicts and conflict allegations, and (3) postconviction
proceedings concerning new evidence of a conflict. See United States v. Mari, 526
F.2d 117, 121 (2d Cir.1975) (Oakes, J., concurring) (discussing post-trial
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proceedings that can be avoided when a trial court inquires into the potential for a
conflict due to multiple representation). These savings would similarly serve the
government’s interests. See Garcia at 278 (“Recordation of the waiver colloquy
between defendant and judge will also serve the government’s interest by assisting
in shielding any potential conviction from collateral attack, either on Sixth
Amendment grounds or on a Fifth or Fourteenth Amendment ‘fundamental
fairness’ basis”). I suggest that any rule or statute concerning the responsibilities
of courts and counsel in multiple-representation situations encompass these
matters.
Conclusion
{¶ 45} For these reasons, I respectfully dissent.
_________________
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Frank
Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and Robert B.
McCaleb, Assistant Public Defender, for appellant.
_________________
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