State v. Corder

[Cite as State v. Corder, 2017-Ohio-6990.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 17AP-24
v. : (C.P.C. No. 15CR-1376)
Steven L. Corder, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on July 27, 2017
On brief: Ron O'Brien, Prosecuting Attorney, and Valerie
B. Swanson, for appellee. Argued: Valerie B. Swanson.
On brief: Blaise G. Baker, for appellant. Argued: Blaise G.
Baker.
APPEAL from the Franklin County Court of Common Pleas
BRUNNER, J.
{¶ 1} Defendant-appellant, Steven L. Corder, appeals a judgment entered by the
Franklin County Court of Common Pleas on January 10, 2017, sentencing him to serve ten
years in prison. Because we find that the trial court failed to make the required inquiry on
Corder's specific complaints regarding his counsel, we reverse and remand to the trial
court so it can make the necessary inquiry. In the event Corder's complaints prove
unfounded, the trial court may re-enter judgment on the previously rendered verdicts.
However, if the court finds that such complaints are well-taken, the court shall hold a new
trial on Counts 1 and 5 (if the prosecution elects to retry the case).
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} A Franklin County Grand Jury indicted Corder on March 20, 2015 for three
counts of gross sexual imposition, one count of rape of a minor less than 13 years of age,
and one count of unlawful sexual conduct with a minor. (Mar. 20, 2015 Indictment.)
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Following a jury trial on the rape count and the three gross sexual imposition counts, the
jury found Corder guilty of the first count of gross sexual imposition and not guilty of all
remaining counts. (Jan. 6, 2017 Verdict Forms.) The unlawful sexual conduct count was
separately tried to the bench and the trial court found Corder guilty of that offense.
(Jan. 6, 2017 Bench Verdict Form.)
{¶ 3} In November 2015, over a year before the case went to trial, the trial court
held a hearing during which Corder decided to reject a plea deal that was to have resulted
in a five-year sentence. That hearing ended as follows:
THE COURT: Okay. Let me tell you how it works in my court
just before you make such a determination. You go to trial and
there's a jury, you're going for life.1 If there's a joint rec. by
counsel, even if I can't stomach it, I agree to it.
So you go back and you think of what they said, five years or
the rest of your life and we'll see you for trial, okay?
THE DEFENDANT: All right.
[DEFENSE COUNSEL]: He also wants to fire me, Judge.
THE COURT: You don't get to fire him.
Next.
[DEFENSE COUNSEL]: Thank you, Judge.
(Tr. at 5-6, filed Apr. 7, 2017.)
{¶ 4} Following that hearing, Corder filed three pro se motions on July 21,
October 21, and December 19, 2016. In the first such motion, Corder sought to have his
appointed counsel removed for alleged deficient performance, specifically: (1) failure to
obtain employment verification, (2) failure to obtain text messages, phone records,
1Although Corder was not ultimately convicted of an offense that would have permitted the trial court to
impose life and this is not raised as an issue in this appeal, we note that the Supreme Court of Ohio has said:
"To punish a person because he has done what the law plainly allows him to do is a due
process violation of the most basic sort * * *." Bordenkircher v. Hayes, 434 U.S. 357, 363,
98 S.Ct. 663, 54 L.Ed.2d 604 (1978), citing North Carolina v. Pearce, 395 U.S. 711, 738, 89
S.Ct. 2072, 23 L.Ed.2d 656 (1969) (Black, J., concurring in part and dissenting in part).
There is no question, then, that a sentence vindictively imposed on a defendant for
exercising his constitutional right to a jury trial is contrary to law. See State v. O'Dell, 45
Ohio St.3d 140, 147, 543 N.E.2d 1220 (1989).
State v. Rahab, __ Ohio St.3d __, 2017-Ohio-1401, ¶ 8 (Slip Opinion)
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(3) failure to obtain parole board violation hearing results from December 2014, and
(4) failure to communicate, failure to answer phone calls and return phone calls, lack of
communication. (July 21, 2016 Mot. to Dismiss Counsel.) In the second motion, Corder
sought to have the same counsel removed on similar grounds: (1) failure to discuss trial
tactics and questions, (2) failure to obtain text messages and or phone records, (3) failure
to communicate, failure to answer phone calls and/or return phone calls, lack of
communication, (4) failure to discuss discovery findings and results, and (5) failure to
obtain parole board violation hearing results from December 2014. (Oct. 21, 2016 Mot. to
Dismiss Counsel.) In the third motion, Corder sought to disqualify Judge Lynch for
failure to consider removing ineffective counsel and substituting different counsel.
(Dec. 19, 2016 Mot. to Disqualify.)
{¶ 5} The trial court never ruled on these motions before trial in January 2017
and stated during trial, "I don't read your motions. You're represented by counsel, so
when I get something from you, I don't read it, 'cause that's why you have counsel." (Tr.
at 15.) However, the trial court did note, prior to jury selection on the first day of trial:
THE COURT: Mr. Corder, I asked for you to be brought out
early just because I realized you've had some stress over this,
stress between me, stress between your lawyers, stress
between all of this. But you do know that the Disciplinary
Counsel did deny --
THE DEFENDANT: Yes.
THE COURT: -- your case. So we're set to go and I'm going to
be your judge. We're set to go. He's going to be your lawyer.
(Tr. at 7.)
{¶ 6} During the course of the trial, four witnesses testified – Ja.S. (the alleged
victim) who was age 12 to 13 at the time of the alleged crimes and age 15 at the time of
trial, J.S. (Ja.S.'s mother), Corder's girlfriend, and a police detective.
{¶ 7} J.S. testified that she found posters in Ja.S.'s room which said, "I love
Steven Corder." (Tr. at 53.) She also said that Ja.S. frequently followed Corder around
during the Summer and Fall 2014 and would defend him if anyone spoke badly about
him. (Tr. at 58-59.) Following a conversation with her daughter about activities between
her and Corder, J.S. took Ja.S. to Children's Hospital where she was interviewed. (Tr. at
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55.) However, Ja.S. apparently did not disclose anything to Children's Hospital and
declined to be examined. Id. J.S. also testified that in 2014, Ja.S. began having emotional
problems and was cutting herself. (Tr. at 45-46.)
{¶ 8} Ja.S testified that any time she was alone with Corder he would rub her
breasts and butt and stick his fingers in her vagina. (Tr. at 70-72, 165.) She related that
she failed seventh grade twice and was cutting herself because Corder molested her. (Tr.
at 66-67.) She said that on one occasion Corder rubbed his penis in her unclothed vagina.
(Tr. at 76-77, 151-59.) She was more specific about this event when testifying directly to
the bench (regarding the allegations of unlawful sexual conduct) without the jury present.
Id. In that recitation, she even alleged that Corder's girlfriend walked in during this event
and witnessed it, asking Corder something to the effect of "[w]hy are you screwing my
cousin?" (Tr. at 156.)
{¶ 9} However, Ja.S.'s testimony was vague about what Corder allegedly did to
her and when or where he allegedly did it. She denied having posters which said "I love
Steven Corder." (Tr. at 94.) Though she repeatedly insisted her failure to report these
incidents was because she was scared, she admitted that no one blamed her, punished
her, yelled at her, or failed to take her allegations seriously. (Tr. at 95-97.)
{¶ 10} Corder's girlfriend testified that Corder and Ja.S. followed each other
around. (Tr. at 118-19.) Based on Corder being ten years older than the child during the
relevant time period, Corder's girlfriend believed this was inappropriate. (Tr. at 119.) She
did not corroborate Ja.S.'s claim that she had walked in and found Corder with his penis
on or in Ja.S.'s vagina.
{¶ 11} When the detective testified, he stated he had worked as a police officer
since 1990 but that most of that time was as a patrol officer. (Tr. at 122.) In the past three
and one-half to four years, he had begun working in the special victims unit. Id. He was
not formally voir dired or qualified as an expert. Nevertheless, he testified without
objection in the following ways:
A. Well, juveniles, I think what you're trying to get at is mainly
they don't disclose as much as adults do.
Q. Well, just tell me some of your experiences, your personal
experiences as a detective based on your training and
knowledge in investigating these kind of cases.
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A. Yeah. Adults, when something happens, they tend to tell
you right away, not always, for the most part. Juveniles, they
don't disclose -- we have -- a lot of our cases, they don't
disclose sex abuse until weeks, months, years later.
(Tr. at 123.) He also testified that despite not revealing substantially anything to
Children's Hospital, Ja.S. opened up a bit more to him, which is what precipitated charges
being brought. (Tr. at 136-37.) Of particular relevance to this appeal, he testified:
She seemed a little timid, which is only natural for a victim.
She was a little more forthcoming than the initial interview at
the CAC [Children's Advocacy Center at Children's Hospital].
At the CAC she appeared to be holding back a little bit, she
didn't want to tell everything. When I talked to her in my car,
she seemed timid but she seemed to let loose with a little more
information.
(Tr. at 133.) He also testified that he saw a snapshot of Ja.S.'s phone where something
about "love Steven Corder" was written on it. (Tr. at 148.) However, he did not preserve
that evidence. (Tr. at 145-46, 148.) He also admitted there was no physical evidence in
the case. (Tr. at 145.)
{¶ 12} Following the verdicts of the jury and the bench finding Corder guilty of one
count of gross sexual imposition and one count of unlawful sexual conduct with a minor,
the trial court reconvened for sentencing on January 9, 2017. (Tr. at 214-16, 219.) The
trial court imposed consecutive sentences; it imposed two years on the gross sexual
imposition count and eight years on the unlawful sexual conduct count, which together
added up to a total term of ten years in prison. (Tr. at 228; Jan. 10, 2017 Jgmt. Entry at
2.) Corder now appeals.
II. ASSIGNMENTS OF ERROR
{¶ 13} Corder assigns three errors for our review:
[1.] The trial court erred to the prejudice of Defendant-
Appellant by improperly sentencing him to consecutive terms
of incarceration in contravention of Ohio's sentencing
statutes.
[2.] The trial court deprived Defendant-Appellant of his right
to effective counsel as guaranteed by the Sixth Amendment to
the United States Constitution.
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[3.] The trial court committed prejudicial error when it
permitted [the] Detective * * * to testify as to the behavior of
juveniles involved in sexual abuse cases.
III. DISCUSSION
A. Second Assignment of Error – Whether the Trial Court Erred in
Refusing to Consider or Investigate Corder's Request to Dismiss His
Counsel
{¶ 14} The United States Supreme Court has explained that a defendant has a right
to be represented by counsel of his or her choice and that deprivation of this right is
structural error. United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 150 (2006).
However, this right is nonetheless limited in a number of respects. As the Court has
remarked:
[T]he right to counsel of choice does not extend to defendants
who require counsel to be appointed for them. Nor may a
defendant insist on representation by a person who is not a
member of the bar, or demand that a court honor his waiver
of conflict-free representation. We have recognized a trial
court's wide latitude in balancing the right to counsel of choice
against the needs of fairness, and against the demands of its
calendar. The court has, moreover, 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."
(Citations omitted.) Id. at 151-52, quoting Wheat v. United States, 486 U.S. 153, 160
(1988), citing Caplin & Drysdale v. United States, 491 U.S. 617, 624 (1989); Wheat at 159-
60, 163-64; Morris v. Slappy, 461 U.S. 1, 11-12 (1983). Based on these principles, the
Supreme Court of Ohio has explained that:
Factors to consider in deciding whether a trial court erred in
denying a defendant's motion to substitute counsel include
"the timeliness of the motion; the adequacy of the court's
inquiry into the defendant's complaint; and whether the
conflict between the attorney and client was so great that it
resulted in a total lack of communication preventing an
adequate defense." In addition, courts should "balance * * *
the accused's right to counsel of his choice and the public's
interest in the prompt and efficient administration of justice."
Decisions relating to the substitution of counsel are within the
sound discretion of the trial court.
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(Citations omitted.) State v. Jones, 91 Ohio St.3d 335, 342-43 (2001), quoting United
States v. Jennings, 83 F.3d 145, 148 (6th Cir.1996), citing Wheat at 164.
{¶ 15} The Supreme Court of Ohio has also clarified that a trial court's entire
failure to carry out its duty to investigate a defendant's specific objection about his or her
counsel's efficacy is grounds for reversal. State v. Deal, 17 Ohio St.2d 17, 18-20 (1969).
Deal has been interpreted to justify reversal when a defendant makes specific allegations
regarding his counsel's performance and the trial court fails to appropriately inquire:
In the wake of Deal, Ohio's appellate courts have reversed
convictions when trial courts fail to make on-the-record
inquiries into specific objections about the performance of
court-appointed counsel. Notably, however, courts have read
Deal as imposing on a defendant the initial burden of
articulating specific concerns about his appointed counsel.
Absent specific objections to counsel's performance, the trial
court has no duty to investigate anything. See, e.g., State v.
Carter (1998), 128 Ohio App.3d 419, 715 N.E.2d 223 ("The
defendant bears the burden of announcing the grounds for a
motion for appointment of new counsel. If the defendant
alleges facts which, if true, would require relief, the trial court
must inquire into the defendant's complaint and make the
inquiry part of the record * * *. [This] limited judicial duty
arises only if the allegations are sufficiently specific; vague or
general objections do not trigger the duty to investigate
further."); State v. Harris (Nov. 27, 1992), Lucas App. No. L-
92-039, 1992 Ohio App. LEXIS 5982 ("The duty to inquire
described in State v. Deal is not a duty to inquire into the
grounds of the motion. The accused bears the duty of
announcing the grounds of the motion."); State v. Simons
(Nov. 22, 2000), Champaign App. No. 99 CA5, 2000 Ohio
App. LEXIS 5411 (reasoning that "the mere claim of a 'conflict
of interest,' without more, is not a sufficiently specific
allegation to trigger the duty to investigate further"); State v.
Davis (May 18, 1998), Franklin App. Nos. 97 APA08-1020, 97
APA08-1021, 1998 Ohio App. LEXIS 2210 ("When * * * a
defendant fails to raise specific concerns about his appointed
counsel with the court during trial, we have held that the
requirements of Deal are not implicated."); State v. Smith
(Sept. 14, 2000), Cuyahoga App. No. 76998, 2000 Ohio App.
LEXIS 4183 ("In order to necessitate [a Deal] inquiry, the
defendant must announce grounds for appointment of new
counsel which are sufficiently specific to trigger the duty of
further investigation."); State v. King (1995), 104 Ohio App.3d
434, 438, 662 N.E.2d 389 (acknowledging the Deal court's
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requirement that "allegations of ineffective assistance had to
be 'specific, not vague or general' "); State v. Washington
(Aug. 17, 2001), Hamilton App. Nos. C-000754, B-0005453,
2001 Ohio App. LEXIS 3604 (reasoning that "the better rule
requires the defendant to raise concerns about his appointed
counsel with sufficient specificity to warrant further
investigation," and noting that "a trial court, without more,
does not abuse its discretion in finding that a general
allegation of unhappiness with appointed counsel is so vague
that it does not require additional investigation").
State v. Hibbler, 2d Dist. No. 2001-CA-43, 2002-Ohio-4464, ¶ 15. This Court also has
recognized that it is "reversible error" for a trial court to not inquire about and make part
of the record a defendant’s complaints concerning the efficacy of his or her counsel. State
v. Washington, 10th Dist. No. 94APA11-1653, 1995 WL 373531, 1995 Ohio App. LEXIS
2586, *4-5 (June 20, 1995).
{¶ 16} In this case, Corder's counsel informed the trial court that Corder wished to
discharge him on November 12, 2015. (Tr. at 6.) The trial date set at that time was
January 11, 2016 but the trial did not begin until almost a year later, on January 4, 2017.
(Nov. 12, 2015 Continuance Entry; Tr. at 7.) The trial court responded to that request that
his counsel be removed as follows:
[DEFENSE COUNSEL]: He also wants to fire me, Judge.
THE COURT: You don't get to fire him.
Next.
[DEFENSE COUNSEL]: Thank you, Judge.
(Tr. at 6.)
{¶ 17} In the intervening time between the initial rejection of his request and trial
over one year later, Corder set forth his complaints about counsel in two pro se motions,
on July 21, and October 21, 2016. Common to both motions was the bullet-pointed
allegation of counsel's "[f]ailure to communicate, failure to answer phone calls, and return
phone calls, lack of communication." (July 21, 2016 Mot. to Dismiss Counsel; Oct. 21,
2016 Mot. to Dismiss Counsel.) In other words, Corder alleged, in the language of Jones,
a "total lack of communication preventing an adequate defense." Jones at 342. Yet the
trial court did not inquire into, substantively address, or even read the motions. As the
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court put it, "I don't read your motions. You're represented by counsel, so when I get
something from you, I don't read it, 'cause that's why you have counsel." (Tr. at 15.) The
court's only acknowledgment that it was even aware that Corder had repeatedly asked for
an attorney many months before trial was the following comment on the morning of jury
selection:
THE COURT: Mr. Corder, I asked for you to be brought out
early just because I realized you've had some stress over this,
stress between me, stress between your lawyers, stress
between all of this. But you do know that the Disciplinary
Counsel did deny --
THE DEFENDANT: Yes.
THE COURT: -- your case. So we're set to go and I'm going to
be your judge. We're set to go. He's going to be your lawyer.
(Tr. at 7.)
{¶ 18} Decisions which address the substance of a substitution of counsel request
are matters within the discretion of the trial court. State v. Murphy, 91 Ohio St.3d 516,
523 (2001). But, as discussed at length above, trial courts are legally obliged to inquire
into specific allegations of inefficacy and make that inquiry part of the record. The failure
to do so is an error of law and both we and the Supreme Court of Ohio in Deal have
previously recognized that reversal is appropriate in such circumstances. Deal at 18-20;
Washington at *4-5.
{¶ 19} Plaintiff-appellee, State of Ohio, argues that the issue is waived because
Corder did not assert the issue at trial. (State Brief at 26-32.) However, Corder's counsel
raised it in a hearing on November 12, 2015, which was a scheduled trial date before the
court elected to continue the trial. (Tr. at 4, 6; Nov. 12, 2015 Continuance Entry; Tr. at 7.)
Then Corder raised it in two pro se motions, and he filed a pro se motion to disqualify
Judge Lynch. (July 21, 2016 Mot. to Dismiss Counsel; Oct. 21, 2016 Mot. to Dismiss
Counsel; Dec. 19, 2016 Mot. to Disqualify.) Though Corder did not re-raise the matter
during the trial date on which the trial itself actually went forward, the trial court
preemptively addressed the issue, saying, "[s]o we're set to go and I'm going to be your
judge. We're set to go. He's going to be your lawyer." (Tr. at 7.) Corder repeatedly raised
the issue and the trial court ruled on the matter as trial began. Under the circumstances,
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we see no reason to find waiver because he failed to interrupt, contradict, and argue with
the trial court's ruling once made.
{¶ 20} Though the State cites a number of cases in which we found that a
defendant who had previously expressed dissatisfaction with his counsel had waived the
issue by the time of trial, none of these cases are factually similar. In State v. Davis, a
defendant sent a letter to the court expressing that he had problems with counsel. 10th
Dist. No. 97APA08-1020, 1998 WL 25570, 1998 Ohio App. LEXIS 2210, *2 (May 19,
1998). However, after the letter was sent in that case, less than a week before trial, the
defendant's attorney represented to the trial court that he and the client were no longer
having problems and that the defendant wished him to remain as counsel. Id. at *2-3. In
State v. Scudder, a defendant submitted vague letters objecting to his counsel, failed to
file a motion to formalize the complaints even when invited to do so, and then was
entirely silent on the issue at trial. 10th Dist. No. 91AP-506, 1192 WL 302432, 1192 Ohio
App. LEXIS 5454, *50-53 (Oct. 20, 1992). In State v. Grisson, trial counsel raised the
issue of the defendant's satisfaction with his performance in order to give the defendant a
forum in which to make specific complaints if he had any. 10th Dist. No. 08AP-952,
2009-Ohio-5709, ¶ 4. The defendant remained silent and did not voice any specific
objection to his counsel until 30 days after his conviction. Id. at ¶ 22. Under the
circumstances, we found that the Deal inquiry was unnecessary. Id.
{¶ 21} Because the trial court did not make the required Deal inquiry in this case,
we vacate Corder's convictions and remand his case to the trial court to make inquiry into
Corder's complaints about his counsel. If Corder's complaints lack merit, the trial court
may re-enter judgment on the previously rendered verdicts. Deal at 20. However, should
they prove founded, a new trial on Counts 1 and 5 (if the prosecution elects to go forward)
or discharge (if the prosecution does not so elect) are required. Corder's second
assignment of error is sustained.
B. First Assignment of Error – Whether the Trial Court Failed to Make the
Necessary Findings Under R.C. 2929.14(C)(4) Prior to Imposing
Consecutive Sentences
{¶ 22} We have sustained Corder's second assignment of error and remanded his
case to the trial court to make the Deal inquiry on the record and either re-enter judgment
on the previously rendered verdicts and re-impose sentence (providing a new opportunity
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to comply with R.C. 2929.14(C)(4)) or to find merit to Corder's complaints about counsel,
appoint new counsel, and permit the prosecution to elect to retry the vacated counts. If
the prosecution elects to retry and Corder is found guilty, the trial court would thereafter
impose sentence on Corder and in doing so comply with R.C. 2929.14(C)(4). Should the
prosecution elect not to retry Corder or should Corder be acquitted, the trial court would
have no need to comply with R.C. 2929.14(C)(4). Thus, the question of whether the trial
court sufficiently complied with R.C. 2929.14(C)(4) in sentencing Corder in this round of
trial proceedings is rendered moot by our disposition of the second assignment of error.
{¶ 23} Corder's first assignment of error is moot and we consider it no further.
C. Third Assignment of Error – Whether the Trial Court Erred in
Allowing Opinion Testimony on What is Usual Behavior for Child
Sexual Offense Victims Without Qualifying the Witness as an Expert
{¶ 24} Because we have sustained Corder's second assignment of error and
remanded this case to the trial court for an inquiry that may result in a new trial, we find
Corder's third assignment of error to be unripe at this time. State ex rel. Elyria Foundry
Co. v. Indus. Commn., 82 Ohio St.3d 88, 89 (1998). It may arise again if the trial court
finds Corder's complaints unfounded and re-enters judgment on the previous verdicts, or
if retrial is held, the detective testifies similarly, and Corder is convicted. But review of
this assignment of error and its attendant issues is and speculative based on our order to
vacate Corder’s sentence..
{¶ 25} Corder's third assignment of error has been rendered unripe and is not
considered further at this time.
IV. CONCLUSION
{¶ 26} Although Corder repeatedly expressed concerns about the lack of
communication between himself and his counsel and did request new counsel, the trial
court made no inquiry into Corder's concerns whatsoever. We therefore reverse and
remand with instructions to the Franklin County Court of Common Pleas that the trial
court shall conduct the Deal inquiry in regard to this case. If Corder's complaints prove
unfounded, the trial court may re-enter judgment on the previously rendered verdicts.
However, if the court finds that such complaints are well-taken, the court should conduct
a new trial on Counts 1 and 5 (if the prosecution is willing to retry the case) or discharge
Corder (if the prosecution is not willing). Corder's second assignment of error is
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sustained. This renders his first assignment of error moot, and his third assignment of
error unripe and thus they are considered no further.
Judgment reversed and
remanded with instructions.
KLATT, J., concurs
SADLER, J., dissents.
SADLER, J., dissenting.
{¶ 27} Because at no time during the course of trial did appellant request new
counsel or otherwise express dissatisfaction with counsel's representation, I would find
that appellant waived the issue of whether the trial court had a duty to inquire under State
v. Deal, 17 Ohio St.2d 17 (1969). Because the majority holds otherwise, I respectfully
dissent.
{¶ 28} As stated in Deal, the duty of the trial court to inquire into trial counsel's
representation of a defendant applies where an indigent defendant questions the
effectiveness and adequacy of counsel "during the course of his trial." (Emphasis added.)
Id. at syllabus. This court has repeatedly found that a trial court does not violate a duty to
inquire under Deal where a defendant who had previously expressed discontentment with
his trial counsel does not raise the issue during the course of his trial.
{¶ 29} In State v. Scudder, 10th Dist. No. 91AP-506 (Oct. 20, 1992), we rejected
the defendant's claim that his letter to the trial court one month prior to trial expressing
dissatisfaction with his trial counsel implicated the trial court's duty to inquire under
Deal. We distinguished Deal based on the defendant's failure to raise his allegations of
incompetency of counsel at trial, noting "[i]t was incumbent upon defendant to do more
to preserve his pretrial complaints for our review" and that, because his outward conduct
at trial was inconsistent with his letter, "it would appear that he had later acquiesced in
his defense counsel's handling of the matter at the time of trial." Id. We found it
reasonable for the trial court to assume that "problems were resolved since no mention
was made of them at trial." Id.{¶ 30} Likewise in State v. Davis, 10th Dist. No. 97APA08-1021 (May 19, 1998), we
found that the holding in Scudder applied in a case where the defendant sent a letter to
the trial court one month prior to trial that we interpreted as a request for new counsel.
While the facts of Davis included a pretrial meeting whereby trial counsel expressed an
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improved relationship with the defendant, our holding in Davis was specifically based on
the defendant's failure "to preserve his objections by failing to timely raise his concerns
with the trial court during the trial"—regardless of whether the trial court personally
addressed the defendant at trial regarding this topic or not. Id.{¶ 31} Consistent with Scudder and Davis, in State v. Grisson, 10th Dist. No.
08AP-952, 2009-Ohio-5709, ¶ 20-21, appeal not allowed, 124 Ohio St.3d 1493, 2010-
Ohio-670, we found that comments made to the trial court prior to trial regarding the
defendant's frustrations with the progress of the case did not trigger a Deal inquiry where
immediately prior to trial the defendant did not make any complaints regarding his
representation. See also In re W.W.E., 10th Dist. No. 15AP-167, 2016-Ohio-4552, ¶ 44
(citing Davis and Deal in finding that the trial court did not err in failing to inquire of the
appellant whether he wished for different counsel in a permanent custody hearing where
the appellant did not request new counsel at the hearing).
{¶ 32} In this case, the majority sees "no reason to find waiver because [appellant]
failed to interrupt, contradict, and argue with the trial court's ruling once made."
(Majority Opinion at ¶ 19.) In my view, Deal and precedent of this court support the
opposite view and stand for the proposition that a defendant waives the issue of trial court
inquiry under Deal by not expressing, at trial, dissatisfaction with his counsel.
Accordingly, because during the course of his trial, appellant did not request new counsel,
otherwise object to the issue, or make any overture about the efficacy or adequacy of
counsel's representation, I would not find that the trial court erred in failing to inquire
about appellant's representation under Deal and would rather find that appellant waived
the issue.
{¶ 33} Furthermore, because appellant failed to object at trial, I would find that on
this record, he failed to demonstrate the trial court's lack of inquiry into his trial counsel
representation affected the outcome of the trial under plain error review. State v. Lang,
129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 108, quoting State v. Barnes, 94 Ohio St.3d 21, 27
(2002), and State v. Long, 53 Ohio St.2d 91 (1978), paragraph two of the syllabus ("An
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alleged error is plain error only if the error is 'obvious,' and 'but for the error, the outcome
of the trial clearly would have been otherwise.' ").2
{¶ 34} For the foregoing reasons, I would overrule appellant's second assignment
of error and proceed to address the third assignment of error.3 Because the majority does
not, I respectfully dissent.
2 I find particularly noteworthy that, in this case, defense counsel's representation contributed to appellant
being found not guilty of rape of a minor less than 13 years of age and two of the gross sexual imposition
charges—three of the five of the charges brought against him.
3 At oral argument, appellant's counsel withdrew appellant's first assignment of error.