State v. Cobb

[Cite as State v. Cobb, 2014-Ohio-1923.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26847
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CHAD J. COBB COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 12 07 1887
DECISION AND JOURNAL ENTRY
Dated: May 7, 2014
BELFANCE, Presiding Judge.
{¶1} Chad Cobb appeals from his convictions in the Summit County Court of Common
Pleas. For the reasons set forth below, we affirm.
I.
{¶2} On July 9, 2012, Mr. Cobb was indicted for aggravated murder and kidnapping.
By way of a supplemental indictment on August 15, 2012, Mr. Cobb was charged with three
counts of aggravated murder, each with two capital specifications, and one count each of
kidnapping, aggravated robbery, felonious assault, retaliation, tampering with evidence, grand
theft, abuse of a corpse, possessing criminal tools, and domestic violence. Following the
supplemental indictment, Mr. Cobb’s retained counsel withdrew, and new counsel was
appointed.
{¶3} Mr. Cobb pleaded guilty to aggravated murder, kidnapping, aggravated robbery,
felonious assault, retaliation, tampering with evidence, grand theft, abuse of a corpse, possessing
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criminal tools, and domestic violence. All of the capital specifications were dismissed along
with the remaining charges, and the trial court sentenced Mr. Cobb to the agreed aggregate term
of life in prison without the possibility of parole. Mr. Cobb has appealed, raising three
assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT DID NOT HAVE SUBJECT MATTER JURISDICTION
TO HEAR THE AGGRAVATED MURDER ISSUE AGAINST APPELLANT
IN VIOLATION OF ARTICLE [I] SECTION 10 OF THE OHIO
CONSTITUTION[.]
{¶4} In Mr. Cobb’s first assignment of error, he argues that the trial court did not have
subject matter jurisdiction over his case because the State “failed to establish that the death
occurred in Summit County.” We disagree.
{¶5} Although Mr. Cobb frames his argument in terms of subject-matter jurisdiction, it
is actually one of venue. Venue and subject-matter jurisdiction are distinct legal concepts. See
State v. Bobinchuck, 9th Dist. Summit No. 19536, 2000 WL 1287296, *1 (Sept. 13, 2000).
“‘Jurisdiction’ means the courts’ statutory or constitutional power to adjudicate the case.”
(Internal quotations and citations omitted.) Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980,
¶ 11. “It is only when the trial court lacks subject matter jurisdiction that its judgment is void[.]”
(Internal quotations and citations omitted.) Id. at ¶ 12. “Because subject-matter jurisdiction goes
to the power of the court to adjudicate the merits of a case, it can never be waived and may be
challenged at any time.” Id. at ¶ 11
{¶6} By contrast, “venue is a fact which must be proved in criminal prosecutions
unless it is waived by the defendant.” State v. Headley, 6 Ohio St.3d 475, 477 (1983). “Section
10, Article I of the Ohio Constitution fixes venue, or the proper place to try a criminal matter[.]”
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Id. Article I, Section 10 of the Ohio Constitution provides, in pertinent part, that “[i]n any trial,
in any court, the party accused shall be allowed * * * a speedy public trial by an impartial jury of
the county in which the offense is alleged to have been committed * * *.” “Generally, this rule is
preserved in R.C. 2901.12, Ohio’s venue statute, although the Committee Comment to that
statute notes that provision is also made for the mobile offender whose course of criminal
conduct affects a number of jurisdictions.” Headley at 477.
{¶7} Mr. Cobb does not challenge the trial court’s statutory or constitutional authority
over this criminal matter. Rather, his argument that the murder did not occur in Summit County
goes to venue, not subject matter jurisdiction. See Pratts at ¶ 11-13; Headley at 477. See also
R.C. 2931.03 (establishing jurisdiction of common pleas courts over criminal offenses
committed by adults subject to certain exceptions). The indictment issued in this case contained
an allegation that all of the crimes occurred in Summit County. Mr. Cobb’s guilty plea
constituted a complete admission of guilt to the crimes charged in the indictment. See Crim.R.
11(B)(1); State v. Pulizzi, 9th Dist. Summit No. 20729, 2002-Ohio-2209, ¶ 29, citing Shie v.
Leonard, 84 Ohio St.3d 160, 161 (1998). Therefore, because the indictment alleged that all the
crimes occurred in Summit County, Mr. Cobb admitted that fact by pleading guilty. See also
State v. Teel, 6th Dist. Sandusky No. S-06-011, 2006-Ohio-5281, ¶ 9 (“[A] guilty plea
constitutes such a waiver [of venue] and precludes a defendant from challenging the factual issue
of venue on appeal.”).
{¶8} Accordingly, Mr. Cobb’s first assignment of error is overruled.
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ASSIGNMENT OF ERROR II
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
WHEN RETAINED COUNSEL FAILED TO SHOW UP AT A MOTION TO
DISMISS HEARING IN VIOLATION OF THE SIXTH AMENDMENT OF
THE UNITED STATES CONSTITUTION AND ARTICLE I SECTION 10 OF
THE OHIO CONSTITUTION[.]
{¶9} Mr. Cobb argues in his second assignment of error that he received ineffective
assistance of counsel. We disagree.
{¶10} In order to prevail on an ineffective assistance of counsel claim, a defendant
“must show (1) deficient performance by counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for
counsel’s errors, the proceeding’s result would have been different.” State v. Mundt, 115 Ohio
St.3d 22, 2007-Ohio-4836, ¶ 62, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694
(1984).
{¶11} Prior to his indictment by the grand jury in this case, Mr. Cobb was held on a
complaint filed with the Barberton Municipal Court. Mr. Cobb’s attorney filed a motion for his
immediate release because more than ten days had passed since his arraignment without a
preliminary hearing. See Crim.R. 5(B)(1). A hearing was scheduled on his motion, but his
counsel did not attend the hearing. The trial court subsequently denied Mr. Cobb’s motion.
{¶12} Mr. Cobb argues that his counsel’s failure to appear at the hearing on his motion
constituted ineffective assistance. However, because he pleaded guilty, Mr. Cobb must be able
to show that there is a reasonable probability that he would not have pleaded guilty but for his
counsel’s performance in order to prevail on a claim of ineffective assistance. State v. Taylor,
6th Dist. Lucas No. L-10-1302, 2011-Ohio-5462, ¶ 19. See also Hill v. Lockhart, 474 U.S. 52,
58-59 (1985) (“[I]n order to satisfy the ‘prejudice’ requirement, the defendant must show that
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there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty
and would have insisted on going to trial.”). Thus, assuming that his counsel’s performance fell
below an objective standard of reasonableness, Mr. Cobb has not explained how his counsel’s
failure to appear at a hearing more than six months prior to his pleading guilty affected his
decision to plead guilty, and we will not develop an argument for him.1 See App.R. 16(A)(7);
State v. Harmon, 9th Dist. Summit. No. 26426, 2013-Ohio-2319, ¶ 6. See also State v. Spates,
64 Ohio St.3d 269 (1992), paragraph two of the syllabus (“A defendant’s plea of guilty entered
into knowingly, intelligently and voluntarily after a preliminary hearing waives defendant’s right
to challenge a claimed deprivation of the constitutional right to counsel at the preliminary
hearing stage of a criminal proceeding.”).
{¶13} Accordingly, Mr. Cobb’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
APPELLANT’S TRIAL COUNSEL WAS IMPROPERLY ALLOWED TO
WITHDRAW THUS DENYING APPELLANT THE RIGHT TO RETAINED
COUNSEL OF HIS CHOICE IN VIOLATION OF THE SIXTH AMENDMENT
OF THE UNITED STATES CONSTITUTION AND ARTICLE I SECTION 10
OF THE OHIO CONSTITUTION[.]
{¶14} Mr. Cobb argues that the trial court violated his right to counsel by permitting his
original counsel to withdraw. We disagree.
{¶15} Following Mr. Cobb’s supplemental indictment, his retained counsel moved to
withdraw as retained counsel, which the trial court permitted. Counsel then asked the court to
appoint him as counsel, noting that he had represented Mr. Cobb throughout the two months of
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We also note that Mr. Cobb does not develop an argument as to how his counsel’s
failure to appear at the hearing affected the outcome of the motion at issue in that hearing. See
App.R. 16(A)(7); State v. Harmon, 9th Dist. Summit. No. 26426, 2013-Ohio-2319, ¶ 6. He does
not discuss the merits of the motion, only that the trial court mentioned in its order denying it
that his counsel did not appear.
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the case and that he had not been paid in relation to his representation. The trial court found Mr.
Cobb to be indigent and indicated that it would take counsel’s request to be appointed under
advisement. Ultimately, the trial court appointed different counsel to represent Mr. Cobb.
{¶16} We initially note that Mr. Cobb’s entire argument focuses on the trial court’s
decision to allow his original counsel to withdraw as retained counsel, arguing that the trial court
failed to enforce the Rules of Professional Conduct. However, Mr. Cobb has not cited any
authority that a trial court permitting counsel to withdraw upon request interferes with a
defendant’s right to counsel of his or her choice, nor has he developed any argument tying a
failure to precisely follow the Rules of Professional Conduct to a deprivation of his Sixth
Amendment right to counsel. See App.R. 16(A)(7). In any case, even assuming that the trial
court’s decision to permit counsel to withdraw did affect Mr. Cobb’s Sixth Amendment rights,
that decision was a final, appealable order and, therefore, outside the scope of this appeal. See
State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785, syllabus (“A pretrial ruling removing a
criminal defendant’s retained counsel of choice is a final order subject to immediate appeal.”);
App.R. 4(A) (Notice of appeal must be filed within 30 days of the entry of judgment or order
appealed.).
{¶17} We also note that “[t]he right to counsel of choice does not extend to defendants
who require counsel to be appointed for them.” United States v. Gonzalez-Lopez, 548 U.S. 140,
151 (2006). During the hearing at which Mr. Cobb’s retained counsel withdrew, Mr. Cobb told
the trial court that he was indigent, and Mr. Cobb’s retained counsel told the trial court that Mr.
Cobb had not paid him for his representation in the case. Mr. Cobb does not dispute on appeal
that he was indigent or that he required the appointment of counsel. Because Mr. Cobb required
the appointment of counsel, he was not constitutionally entitled to counsel of his choice. See id.7
See also State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶ 64 (“In general, an indigent
defendant does not have a constitutional right to choose the attorney who will represent him or
her at state expense. [T]hose who do not have the means to hire their own lawyers have no
cognizable complaint so long as they are adequately represented by attorneys appointed by the
courts.”) (Internal quotations and citations omitted.).
{¶18} Mr. Cobb’s third assignment of error is overruled.
III.
{¶19} Mr. Cobb’s assignments of error are overruled, and the judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
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Costs taxed to Appellant.
EVE V. BELFANCE
FOR THE COURT
WHITMORE, J.
MOORE, J.
CONCUR.
APPEARANCES:
WESLEY C. BUCHANAN, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.