IN TIIE SUPREME COURT OF OHIO 08_ 0 3Q®

STATE OF OIIIO, CASE NO. 474510 , 479137

Plaintiff-Appellee, . On Appeal from the CUYAHOGACounty Court of Appeals, EIGHTH

vs. Appellate District.

LARRY GILBERT , C.A. Case No. 88806

Defendant-Appellant.

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT LARRY GILBERT

LARRY GILBERT 512-419NAME AND NUMBER

Mansfeild Corr. InstitutionINSTITUTION

P.O.BOX 788ADDRESS

Mansfeild,Ohio. 44901-0788CITY, STATE & ZIPn

/aPHONE

DEFENDANT-APPELLANT, PRO SE

KEVIN R. FILIATRAUTPROSECUTOR NAMETHE JUSTICE CENTER 1200 Ontario StreetADDRESS

CLEVELAND OHIO. 44113CITY, STATE & ZIP n/a

PHONE

COUNSEL FOR APPELLEE, STATE OF OHIO

FE® 19 2008

CLERK OF COURTSUPREME COURT OF OHIO

TABLE OF ODNTENrS

PAGE NOS.

Explanation of Why this case is case of public or great general.

Interest and involves a substantial constitutional

Question ....................................................... 9.°2

STATEMENT OF THE CASE .......................................... 2-3

STATEMENT OF THE FACTS ......................................... 2-3

FIRST PROPOSITION OF LAW ...................................... 4-6

The trial court committed prejudicial error and denied appellant dueprocess of law and the right to counk, by failing to make adequet inquiryinto appellants request to discharge his court-appointed counsel priorto entry of his guilty plea. Sixth and Fourteenth Amendments,constitutionof the United States; Article I§10 and §16 constitution of State of OHIO.

SECOND PROPOSITION OF LAW ...................................... 4-6

The trial court abused it's discretion and denied appellant due process oflaw and the right to counsel by rejecting appellants request to dischargehis court-appointed counsel. 6th and .14th Amendments,Constitution ofthe United States; Article I§10 and §l6constitution of the State of Ohio.

THIRD PROPOSITION OF LAW ...................................... 7-9

The trial court committed prejudicial error and denied appellant dueprocess of law by accepting guilty pleas that were not made voluntarily-Crim.R.11(C). Fourteenth Amendment,Constitution of the United States;ArticleI § 16 Constitution of the State of Ohio.

FOURTH PROPOSITION OF LAW ..................................... ig°12

Appellant was denied the effective assistance of counsel by virtue of hiscourt-appointed attorney's conflict of interest with regard to appellantsmotion to withdraw his guilty pleas and his otherwise deficiant performance.Sixth and Fourth Amendments, Constitution of the United States; Article I§ 10, Constitution of State of Ohio.

FIFTH PROPOSITION OF LAW .................................................. 13-15

The appeals court abused it's discretion Crim.R.52(b),when it failedto apply the standards of clearly established state and federal law in thiscase,when it failed to rule on three separately assigned errors on directappeal,thus depriving appellant of his rights to due-process and equalprotection. U.S. Const. 5,6,14 and Ohio Const. Article I § 2,10,16.

( i )

TABLE OF CONTENTS (cont.)

Page No.

CONCLUSION ............................................................ 15

CIRTIFICATE OF SERVICE ................................................ 16

APPENDIX:

STATE V. LARRY GILBERT ( 2008), 88806 App.No._ unreported

(ii)

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC ORGRE TOE E RALTIT:EP.ESTANl.'Il`.'VOL`.'ES zSJBSTAI?TIAL

CONSTITUTIONAL QUESTION

This case presents several critical issues for this courts

review: (1) Whether a trial court abuses it's discretion and violates

an appellants U.S and Ohio constitutional rights to due process and

effective assistance of counsel, when it failes to discharge appointed

counsel when requested by appellant for the purpose of retaining his

own counsel. (2) Whether a trial court abuses it's discretion and commits

prejudicial error denying appellant his U.S and Ohio constitutional

rights to due process,equal protection under Crim.R.52(B) and violating

Ohio and Federal Crim.R.11, when appellants guilty plea was not made

voluntarily. (3) Whether appellant recieves effective assistance of

counsel, due process and equal iP^tecd-&^. under the U.S and Ohio consti-

tution by virtue of his court appointed counsel's conflict of interest.

(4) Whether an appellant recieves due process and equal protection under

the U.S and Ohio constitution were an appeal court failes to tule on three

separate assignment of errors raised by appellate counsel.

The decision of the court ofappeals on failing to decide on three

critical issues,thus failing to upohold clearly establised state and

federal law, the decision of the appeals court threatens the structure

of involuntary pleas and the imprisonment of the accused. Surprisingly

the decision of the court of appeals is contrary to both OHIO and FEDERAL

CRIM.R.11, the judgement of the court of appeals has graet general

significance, because it undermines the ohio constitutional scheme by

denying appellant his rights and failing to give a clear and convincing

standard of review (Opon the entire record on appeal. This court should

( 1 )

grant jurisdiction to hear this case and review the erronious and

dangerous decision of the eighth district appeals court in this case.

STATEMENT OF THE CASE AND FACTS

Appellant's case was set for trial on the morning of JUNE 06,

2006, appellant entered guilty pleas in two cases. Prior to the guilty

pleas, appellant sought to discharge his court-appointed counsel . From

the outset,the trial court displayed little interest'inthe concerns

raised by the appellant. Instead of conducting a fair,impartial and

complete inquiry into the matter,the trial court simply cited the gen-

eral reputation of appellant's court-appointed counsel and simply dis-

misssed appellant's complaints in a rather cavalier manner.

Appellant's request to discharge his court-appointed counsel

was denied and he was forced to proceed with an unwanted,unprepared and

uninterested attorney. Immediately after rejecting appellaot`s:request-to

discharge his court appointed-counsel, the trial court,sue-sponte,revoked

appellant's bond and remanded him to the county jail. Appellants court-

appointed counsel who appellant ^ntEEito discharge for reasons of con-

flicting interest, did draft a motion to withdraw guilty plea prior to

sentencing,but failed to insert the truths of appellants reasons for

the withdrawal.

At the hearing appellant did try to adress the true reasons for

the withdrawal of his guilty plea, by informing the court of a subjective

conflict of interest between appointed-couns6l and appellant. Consequently,

appellant had to hire his own attorney in order to get rid of the court-

appointed counsel,who intered upon the record on the hearing on appellants

(Z)

pre-sentence motion to withdraw his guilty plea held on AUGUST 24,2006,

which was filed by Mr. hilderbrand on JULY 28,2006 without raising the

truths of the matter,which included conflicting interests on what the

defendant wanted and what counsel wanted. The trial court scheduled a

pretrial conferance on a new case which the trial court continued, so

appellant could retain counsel of his choice,but only after the appellant

had plead guilty in the case(s) that Mr.Hilderbrand represented appellant

in under_.conflicting interest,wherefor appellant was sentenced on AUGUST

31,2006.

(3)

1st and 2iid PROPOSITION OF LAW

The trial court committed prejudicial error and denied appellantdue process of law and the right to counsel bv failing to makeinquiry_ into appellants request to discharge his court appointedcounsel prior to entry of his guilty pleas. Sixth and FourteenthAmendment under the United States Constitution and Article I§ 10 and §16 of the OHIO Constitution.

The trial court abused it's dicretion and denied appellant due-process of law and the right to counsel by rejecting the appellantsrequest to discharge his court-appointed counsel. United StatesConstitution sixth and fourteenth Amendment and Ohio ConstitutionArticle.I § 10 and §16.

ARGUEh1ENT AND LAW

These two assigned errors of appellants appeal

counsel are of so like nature,they can be argued together. In STATE V.

DEAL, (1969) 17 OH.St.2d 17,this Supreme court held that; when an

accused questions the performance of his counsel and seeks to dis-

charge counsel, the court must take notice and conduct an inquiry

into the matter. In this case, when appellant expressed his dissatis-

faction and want of discharge of his court-appointed counsel to retain

his own on JUNE 06,2006, the trial court only addressed the appellant

by only inquireing.

" You are indieateing that you are haveing issueswith Mr. HILDERBRAND. I dont know what the issuesmay be. I don't want to know too much about it."(Tr.p.7)

The trial court further responded by vouching for the attorney's repu -

tation*and ability,noti.ng that he has "practiced ... for a number of

years"; that "his ability to try cases would go without question";

and that he is "well respected in the courtroom ." This Supreme

courts holding in DEAL,is consistant withthe holding of the UNITED

STATES SUPREME COURT in COPPEDGE V. UNITED STATES,(1962) 362 U.S 438.

The precidence of DEAL and COPPEDGE are to date utilized throughoutthe

ohio appellate courts, more specifically the eight district. see STATE

V. SIMPSON,(8th dist.) unreported 2007WL239109 *9 and JORDAN V. TIMMERMAN-

CQOPER,(6th Cir.) unreported 2007WL2688248 *13 .

In the present case,appellant raised his concerns/contentions

about his court-appointed counsel with sufficiant specificity to warrant

further inquiry. Appellants concerns were not vague or general in nature.

Appellant asserted that he had not been afforded any adequet opportunity

to meet with his appointed counsel to discuss his case and prepare for

trial..Appellant stated in court he had only met with appointed counsel's

son on the day of trial, on several occasions while:aut;on:^bond appel}ant

would have to appear for pre-trial dates,all of which would be resceduled

without appellant being able to communicate with his court-appointed

counsel to discuss trial strategies or any other possible remedies.

Thus, at a minimum, appel.3ants complaints concerning his

appointed counsel giving rise tohis:reasons for wanting to retain his

own counsel should have caused the trial judge to make an inquiry of

appointed counsel to determine the truths of appellants complaints. Before

the trial court offered.appellant an opprtunity to speak,the trial court

made it abundantly clear that appellants effort to discharge his appointed

counsel was going nowhere by stateing:

"Now unless you want to say or state somethingon the record something otherwise that.mightsway this court to think that Mr.HILDERBRANDmay not be ready to proceed accordingly,then I'm not goi.ng to be swayed:" (Tr.p.9)

The trial court was clearly reluctant to be advised of any-

thing regarding counsel's duty to consult with his client. Appellant

was being shackled by the trial court to an unwanted and unprepared

appointed counsel who may have been in collusion with the state to

merely convict, giving rise to appellant's family members to hire an

attorney for appellant. On the day of trial (JUNE 06,2006) after appellant

was shackled to his appointed counsel who was in position to begin a trial

in this case, and appellant was in position to begin any trial with Mr.

HILDERBRAND (appointed counsel),thus appellant had no other available

choice but to plead guilty in this case. Mr. HILDERBRAND only filed a

motion to withdraw appellants guilty plea because he was completely :

aware of the fact that appellant did not want his assistance,and for this

reason Mr.HILDERBRAND failed to argue the true nature of defendants want

of discharge in his motion to withdraw his guilty plea. This defendant

did bring the issues of conflicting intere'sts of his appointed counsel

and himself to the attention of the trial court judge on the record,but

the trial court was very reluctant to inquire into the fullness of the

matter. In UNITED STATES EX.REL.SULLIVAN V.CUYIE2,(1979) 593 F.2d 572.

that court held that; "A criminal defendant is entitled to reversal

whenever he makes some showing of a possible conflict of interest:>or pre-

judice, howeverremote. I.d.at 519,.quoting WAii<Et2 V. UNITED STATFS,

(1970) 399 U.S 915.

3rd PROPOSITION OF LAW

The trial court commited prejudicial error and denied appellantdue process of law by accepting guilty pleas that were not madevoluntarilyCrim.R.11. Fourteenth Amend. U.S Const. and Article I§16 of the ohio const.

ARG[JEINEINT AND LAW

A conviction based on a guilty plea made involuntarily

constitutes a denial of due process and is void. ERJZIERE V. UNITID STATES,

(1957 10th Cir.) 249 F.2d 293,stating that " A guilty plea interposed

,intered as a result of coercion is not consistant with due process and

judgement of conviction and sentence imposed pursuant to such plea can not

stand. see CAUDILL V. JAGO,(6thCir.1984) 747 F.2d 1046 at 3,4 , STATE V.

WOODS,(2d.dist.) unreported 2006WL1284613. This assignment of error,, is

about guilty pLeasmade involuntary, it is not about compliance

with procedural rule, although Ohio and Ferderal Criminal Rule 11 is

relevant to the issue presented. As to the case sub-judi_ce, a similar

claim was raised in UNITED STATES V. MARTINEZ-AY)LINA,64 F.3d. 719, were

that court rule that two defendants guilty pleas did not satisfy Fed..Crim.

R. 11,becal.ise the trial court failed to conduct a full and complete

voitnst&ybass^-, examination...., thereby compramising one of Rule 11's

'core concerns' and undermining the validity of the guilty pleas. I.d at

pg.734:

appointed

The denial of appellants request to discharge his

counsel on the morning of JUNE 06,2006, is an"important

factor relating to the voluntariness of appellants guilty pleas. The

fact that dureing the plea hearing appellant stated that he was satisfied

with appointed counsel, does not subvert the issue of there being a

conflict in the interests of counsel and this appellant, notwithstanding,

the trial court made it clear that appellant had no choice but to plead

guilty in order to get rid of his appointed counsel. In STATE V.SIMP-

SON, unreproted 2007WL2391091 *9 , that court held that; "It is the

duty of the trial court to see that the record contained an adequete in

-vestigation of appellants complaint,the court should have it clear in

the record whether appellant's action was an arbitrary failure to go

forward or a ligitimate claim of inadequete representation. see also

UNITED STATES V. BRADLEY, (2006) 455 F.M. 453.

Tiie,,trial court judge's refusal to listen'-.to,except..and

inquire more into the conflict of interest issue appellant brought to

the attention of the trial court who underminedly denied appellant his

constitutional rights to due process and equal protection of the laws

at appellants plea withdrawal hearing. In STATE V. McNEIL (2001) 145

OH.App.3d 173, that court held that; The function of a hearing on a

motion to withdraw a guilty plea is to determine whether there is a

reasonable and ligitimate basis for the withdrawal." citing STATE

V. XIE, 62 Oh.St.3d at pg.525. Thus,the rnandate of this courts

decision in XIE, contemplates that the trial court in this case denied

this appellant of his constitutional rights to due process and equal

protection by failing to uphold the true function of the plea with-

drawal hearing, where appellant advised the court of the conflict of

interest giving rise to thereason for the dismissal of appointed

counsel who the trial court ademently viewed as a friend of the court.

Had it not been for the trial court cutting appellant off dureing his

.allocution at the pre-sentence plea withdrawal hearing, appellant would

have had the full opportunity to disclose in full detail of appellants

appointed counsel acting under conflicting interests, where appellant

was only able to assert some of this information on the record, although

sufficiant enough for the trial court to inquire more into the facts of

the situation.

4th PRPOSITION OF LAW

Appellant was denied the effective assistance of counselby virtue of his court-appointed attorney's conflict ofinterest with regards to appellants motion to withdrawhis guilty pleas and his otherwise deficiant performance.Sixth and Fourteenth Amendment to the United States Const.,and Article I § 10 and 16 of the OHIO Const.

Arguement and law

This proposition of law is directed towards appointed

counsel's deficiant performance, while acting under a conflict of

interest. STRICKLAND V.WASHINGTON, (1984) 466 U.S. 668 , CUYLAR V.

SULLIVAN, (1980) 466 U.S 335. Appellnats appointed counsel was fully

aware that appellant's intersets in this case was to go to trial for

good faith reasons without his assistance, but only that of retained

counsel, because of appointed counsel's (1) failure to personally

communicate with his client on numerous pre-trial occasions,(2) counsel

never spoke with his client befor,dureing or after any pre-trial

continuances. Appellants appointed counsel only filed for appellants

pre-sentence motion to withdraw his guilty plea, because he was aware

that appellant was going'to fire him and retain his own counsel so

appellant can have his right to a trial in this case.

Appointed counsel purposely failed to assert the true

nature and reasons why appellant wanted to withdraw his guilty plea in

his pre-sentence motion to withdraw plea, and the trial court precluded

appellant from asserting in full the true reasons and nature of such

cause dureing the hearing on appellants motion to withdraw plea.

Whether or not counsle's performance in any particular case was

deficiant can be determined by measureing it against proffesional

standard of conduct, pertaining to the case sub-judice, see A.B.A

STANDARDS 4-3.5 , 4-3.1 , 4-3.2 , 4-3.8', 4-5.1 , and 4-6.1

Clearly one of the principle grounds for appellant

wanting to withdraw his guilty plea was do to the discord between

appellant and his appointed counsel and counsel's lack of interest in

appellants case and lack of preparation. Appellant's court appointed

counsel permitted his own personal interest to be effected by his

proffesional judgement. More specifically,appellant's court appointed

counsel: deliberately failed to deuelppert>ng grounds of the conflict of

interest and it's truth in appellant's pre-sentence motion to withdraw

his guilty plea that appointed counsel prepared. This supreme court

in STATE V. GILLARD,64 Oh.St.3d. 304., 'held that, "In reviewing

Holloway,Sullivan and Wood supra,clearly demonstrates that where a

trial court knows or reasonably should know of an attorney's possible

confilct of interset in representation of a person charged with a

crime, the trial court has an affirmative duty to inquire whether a

conflict of interest actually exists."

This court continued in GILLARD,in holding that

"the duty to inquire arises not only from the general principles of

fundamental fairness, but from the principle that were there is a right

to counsel there is a correlative right to representation free from

conflicts of interest. Where a trial court breaches it's affirmative

duty to inquire, a criminal defendants rights to counsel are impermiss-

ably.imperiled and prejudice will be presumed.citations ommitted, see

also STATE V..MANROSS,(1988) 40 Oh.St.3d 180.

In HOLLOWAY.V. ARKANSAS,(1978) 435 U.S. 475,489-490.

The high court defined what constitutes a "conflict of interest" in

holding that "an actual,relevant conflict of interest [exists] if,

dureing the course of representation, the defendants interest do diverge

with respect to a material,factual or legal issue,or to a course of

action." citing Cuylar,466 U.S at 356. It is established in the record

by appellant of his interest to go foward with a trial befor any plea

was entered, thus, had it not been for counsel's conflicting interest

appellant would not have ever plead guilty in this case,but instead

would have proceeded to trial with his own retained counsel.

Since Stickland, however, it has been clear that a

showing of an adverse effect is required, a defendant need not show

that the result of the proceedings would have beeil differant without

the conflicti of interest, only that the conflict had some adverse

effect on counsel's performance. IMcConico V. STATE, (11thCir.1990)

919 F.2d1543,1548. In SMITH V. BORDIINKIRCIIER, (6th Cir.) 671 F.2d 986,

987, courts were directed "determine" on the facts of each case,

whether there is an actual conflict of interest and whether the conflict

caused ineffective performance in violation of the provisions of the

sixth amendment. The trial court in this instart matter precluded

appellant from asserting the truths in full of the matter of conflicting

interest.between appellant and his court-appointed counsel, and counsel.

failed to develope these truths in appellants motion to withdraw his

guilty plea brouthforth and submitted by appointed - counsel.

5'th PROPOSITION OF IAW

The appeals court abused it's disretion under Crim.R.52(b), when it failed to apply the standards of clearlyestablished state and federal law in this case, when itfailed to rule on three separetlely assignederrors on direct appeal, thus depriving appellant ofhis rights to due-process and equal protection. U.SConstitution 5th,6th,and 14th Amend., and Ohio Const-tution Article I § 2,10 and 16.

ARG'p1YMI' AND I.AW

This arguement is related to the court of appeals fail-

ure to rule on appellant's assignment of errors numbers 3,4 and 6, now

numbered as propositions of law numbers 1,2 and 4. Appellate rule 129A)

provides: "The court may disregard an assigned error presented for

review if the party raising it fails to identify in the record the

error on which the assignment of error is based, or fails to argue the

assignment of error separately in the brief.

Appellate rule 12(A) requires "All errors assigned

and briefed shall be passed upon by the court in writing,stating the

reason for the courts decision as to each error. This portion of rule

12 (A) is mandatory, requireing the court to pass upon all assigned

errors. LUMBERMAN'S ALLIANCE V. AMICAN aCEfSION CORP., (1973)

33 Oh.St. 2d 37,39-40. To shirk this duty is grounds for reversal.

TRAiTPH V. DUNBAR, (1983) 5 Oh.St.3d 68. Appellate rule 12(A)(1)(c)

requires an appellate court to decide each assigned error unless

"made moot by another assignement of error." In this instant matter

the eighth(8th.) district appellate court upon reviewing appellants'

direct appealbrief filed by counsel, failed to give a ruleing on three

(3) separately assigned and arguederrors althoitgh the court acknow-

ledged the error on direct appeal by adressing each of the errors it

failed to give a ruleing on, thus violating the percepts of the OHIO

APPELLATE RULE 12(A) and (A)(1)(c) and violating appellants constitutional

rights to procedural and substantive due process and equal protection of

the laws under the standards of an abuse of discretion causing a mani-

fest injustice upon the appellant.

In order for this court to give informed consideration to

the obstacles that need to be overcome when a party seeks review in.this

high court of OHIO of a decision made by an appellate court,in absence

of a reasoned oppinion by the court of appeals, this appellant is forced

to speculate as to it's rulings on each unruled upon ground raised in

appellants direct appeal from the denial of his pre-sentence motion to

withdmw his guilty plea due to a conflict of interest. see 9I'ATE V.

JIIVNINGS,(1982) 69 Oh.St.2d 389,390. Although an appellate court need

address all assigned errors if one assigned error is determinative not

of the appeal. MIAMISBURGH V. WODD,(2nd dist..1995) 137 OH.App.3d 623.

Failure of the appeals court to state it's resons for not passing

upon each assigned error on direct review is ground for reversal.

ROTHFUSS V. J!tAMILTON MASONIC TEMPLE CO., ( oH. 1971) 27 OH.St.2d 131.

The appellate courts failure to decide on the errors

number 3,4 and 6 now presented as propositions of law 1,2 and 4 have

left the defendant in this matter without any recourse and ability to

re-present his issues to the lower court in an action under collateral

review, namely a post-sentence motion to withdraw his guilty plea

bringing forth the conflict of interest that the appeals court failed

to decide upon, without being subject to the constraints of the doctrine

of res-judicata. Thus, the appellate court has left this appellant in

the position of not either knowing or understanding in which direction

he can pursue his issues of conflicting interest,if he wanted to return

to the state court under a post-sentence motion to withdraw his guilty

plea. Wherefor, this court should take jurisdiction of this case and

remand this case back to the trial court for either an evidentiary

hearing to resolve the issue of counsle's conflict of interest, or

vacate defendant's guilty plea-entirely.

In the interest of justice it is so prayed for.

CI:R1'LF1C'ATr OF StrY2vl.cE

This is to certify that a h-ue aud correct copy of the foregoing G C e

el^+

has been sent by regiilar U.S. Mail to ^ 3i^ ^" tA ^^u`^ ,g^

^jtC Q.(i 77iC e. e C6 `mPl(swlit Ohio

__w1t13 , on this ja5- clay Of 20Jg.

DEFENDAIVT, pro se

^

JAN 2 2 2008

Tuur# nf Appettls uf 04 'tuEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 88806

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

LARRY GILBERT

DEFENDANT-APPELLANT

JUDGMENT:AFFIRMED

Criminal Appeal from theCuyahoga County Court of Common Pleas

Case Nos. CR-474510, CR-479137

BEFORE: Rocco, J., Celebrezze, P.J., and Gallagher, J.

RELEASED: January 10, 2008

JOURNALIZED: JAN 2 2 2008Ijj11111111111111111111111111111111111111111111111

'YILS650 P00501

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ATTORNEY FOR APPELLANT

Jonathan N. Garver4403 St. Clair AvenueThe Brownhoist BuildingCleveland, Ohio 44103-1125

ATTORNEY FOR APPELLEE

William D. MasonCuyahoga County Prosecutor

BY: Kevin R. FiliatrautAssistant County ProsecutorThe Justice Center1200 Ontario StreetCleveland, Ohio 44113

FILEDDEARN APP RRZ E^ ZED

JAN 2 2 2008OiERALD E. FUERSTOF THE COURT F APPEALS

OLEAK

8Y

ANtd®UA7CE141ER1` OF DECISIONPER APP^^2^'(9,r V^ .^.^ a6iAs1

JAN 10 2008

I IIIIII'III' ^IIII II'll'^III'll'I IIIII ^I"I IIII II'I

N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D)and 26(A); Loc.App.R. 22. This decision will be journalized and will become thejudgment and order of the court pursuant to App.R. 22(E) unless a motion forreconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days ofthe announcement of the court's decision. The time period for review by the SupremeCourt of Ohio shall begin to run upon the journalization of this court's announcementof decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1).

®ERALDE.FUERST

CA06088806 49406848 CLERK ®F f RTI^W APPEALS

V9lO, 6 5 D P0 0 5 02

-1-

KENNETH A. ROCCO, J.:

Defendant-appellant Larry Gilbert appeals from his convictions and

sentences for felonious assault with firearms specifications. The attorney

originally assigned to represent appellant in this matter raised two assignments

of error. First, he urged that the court abused its discretion by denying

appellant's motion to withdraw his guilty plea. Second, he claimed the court

erred by ordering that appellant's sentences would be served consecutively

without making appropriate findings.

After appellant's assigned counsel was given leave to withdraw, this court

granted his newly assigned attorney leave to file additional assignments of error.

Appellant's supplemental brief filed November 5, 2007 raises four additional

issues: (1) whether the trial court erred by failing to adequately inquire into

appellant's request to discharge his court-appointed attorney; (2) whether the

court abused its discretion by denying the motion to discharge his court-

appointed counsel; (3) whether the trial court erred by accepting guilty pleas

which were not voluntary; and (4) whether appellant was denied the effective

assistance of counsel in the trial court. We affirm.

Procedural Historv

In an indictment filed December 9, 2005 in Cuyahoga County Common

Pleas Court Case. No. 474510, appellant was charged with two counts of

a,0650 P60503

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felonious assault, each of which carried one- and three-year firearms

specifications. A second indictment was filed against appellant and two co-

defendants on March 31, 2006 in Case No. 479137, again charging appellant

with felonious assault with one- and three- year firearms specifications.'

Appellant pleaded not guilty to each of these charges.

Case No. 474510 was scheduled for trial on the morning of June 6, 2006.

As they waited for a jury, the court noted on the record that appellant's counsel

had indicated to the court that appellant was "having issues" with the attorney,

and while the court did not know exactly what the issues were about, it was

unlikely to dismiss counsel and delay the trial. Although appellant complained

that he had been unable to talk to his attorney at any of the pretrials, the court

pointed out that appellant could have called or visited the attorney's office. The

court then asked counsel to continue in plea discussions before the jury was

called.

Later that day, the court held a change-of-plea hearing. At the hearing,

the state expressed its understanding that the appellant wished to withdraw his

not guilty plea in Case No. 474510 and enter a plea of guilty to the first count of

felonious assault and to the attached three-year firearms specification. The

. 'This indictment also contained two additional charges against one of the co-defendants.

Y,gL@650 P905.04

-3-

state further expressed its understanding that appellant wished to withdraw his

not guilty plea in Case No. 479137 and enter a guilty plea to felonious assault

and a one-year firearms specification. In addition, the appellant agreed that

he would give a truthful written statement and testify truthfully against his two

co-defendants in Case No. 479137. The state further noted that the appellant

agreed that the sentences in these two cases would be consecutive, and

explained:

"Therefore, this defendant is agreeing that there is aminimum five years in prison in 474510 and a minimum three yearsin prison on 479137.

"The maximum in 474510 would be 11 years. The maximumis in 479137 is nine years. These are consecutive in nature."

The court addressed appellant. Appellant informed the court that he was

22 years old, had completed 12th grade in school and could read and write. He

was not under the influence of any medication, drugs or alcohol. The court

ensured that appellant understood that if he failed to cooperate as required by

his plea agreement, the state could withdraw the pleas and proceed to trial in

both cases. The court then explained the sentence that could be imposed upon

appellarit that if he pleaded guilty to one count of felonious assault with a three-

year firearms specification in Case No. 474510:

"Sir, that would carry with it a possible term of incarcerationof two to eight years on a felony of the second degree in addition to

YO10650 P60505

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the three year gun spec. The gun spec has to be run consecutive toany time; do you understand that?

"THE DEFENDANT: Somewhat, sir. What does consecutivemean?

"THE COURT: If a minimum sentence was imposed on thefelony of the second degree of two years, there is an automatic gunspec that has to run consecutive, meaning they run - they don't runon top of each other. They are next to each other.

"You have to serve three years of the gun spec and then two.So that is what Mr. Filiatraut [the prosecutor] said, the minimumsentence is fiveyears.

"Go to the opposite end. If I gave you an eight year sentenceand you had a three year gun spec, the total amount of time wouldbe?

"THE DEFENDANT: 11."THE COURT: Yes."THE DEFENDANT: Thank you."

The court also informed the appellant that the one-year firearm specification on

the charge to which he pleaded guilty and the second count of felonious assault

and its associated firearms specifications would be dismissed.

The court then proceeded to explain the sentence that could be imposed in

Case No. 479137:

"THE COURT: On Case 479137 the State of Ohio is proposingthat you plead to Count One as amended by deleting the three yearfirearm spec, which would mean there is a one year firearm specthat remains.

"Again, looking at two to eight years possible term ofincarceration and $15,000.00 fine and with one year that will be runconsecutive; do you understand that?

"THE DEFENDANT: Yes, sir."THE COURT: Let me tell you the maximum sentence. The

State of Ohio put that on the record, but I have to advise you.

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"On the first case, 474510, you are looking at eight years plusthree. We just discussed that. It totals out to be 11 years maximumon that case; do you understand that?

"THE DEFENDANT: Yes."THE COURT: If I ran it consecutive to 479137, the maximum

time on 479137 is eight years plus one, nine years. So it's a total of20 years.

"You can look at consecutive sentences that could be given toyou on this case; do you understand that?

"THE DEFENDANT: Yes sir. My lawyer advised me of that."

The court concluded that appellant was informed of his constitutional

rights; understood the nature of the charges, the effect of his plea and the

maximum penalties; and his plea was knowing, intelligent and voluntary.

On July 28, 2006, appellant filed a motion to withdraw his guilty pleas in

both cases. In these motions, he asserted that he did not "fully comprehend" the

effect of consecutive sentences, and believed that he would prevail at trial. After

this motion was filed, appellant retained new counsel and his assigned attorney

was removed. The court then conducted a hearing on appellant's motion after

which it denied the motion.

On September 1, 2006, the court sentenced appellant in Case No. 474510

to three years' imprisonment on the firearms specification to be served prior and

consecutive to a sentence of five years' imprisonment on the base charge. The

court further ordered that the sentence in this case was to be served

consecutively to the sentence imposed in Case No. 479137. In Case No. 479137,

V%@650 P.90507

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the court sentenced appellant to a term of one year's imprisonment on the

firearm specification to be served prior and consecutive to a sentence of five

years' imprisonment on the base charge. The court also ordered that the

sentence in this case would be served consecutively to the sentence imposed in

Case No. 474510.

Law and Analvsis

In his first assignment of error, appellant contends that the common pleas

court abused its discretion by denying his motion to withdraw his guilty plea.

While Crim.R. 32.1 motions which are filed before sentencing generally will be

freely allowed, "a defendant does not have an absolute right to withdraw a plea

prior to sentencing." State v. Xie (1992), 62 Ohio St.3d 521, 527. "Therefore, the

trial court must conduct a hearing to determine whether there is a reasonable

and legitimate basis for the withdrawal of the plea." Id. In this case, the court

did conduct a hearing. Both in his motion and at the hearing, appellant asserted

that he did not understand the concept of consecutive sentences. However, the

colloquy at the plea hearing, quoted above, plainly shows that the court

explained the concept of consecutive sentences to appellant and appellant

demonstrated his understanding of the concept as well as his understanding of

the potential sentences he faced. The common pleas court did not abuse its

Y'K04 650 Pg 0 5Q8

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discretion by denying appellant's motion to withdraw his guilty plea on this

basis. Accordingly, we overrule the first assignment of error.

Second, appellant claims the court erred by imposing consecutive

sentences without making the findings required by R.C. 2929.14(E)(4). The plea

agreement and sentences in these cases were both entered after the Supreme

Court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. Foster held

that R.C. 2929.14(E)(4) was unconstitutional because it required judicial

findings of fact not proven to a jury beyond a reasonable doubt or admitted by

the defendant before the court could impose consecutive sentences. The court

concluded that this statute was capable of being severed, and that after

severance, judicial factfindings were not required before the court could impose

consecutive terms of imprisonment. Thus, the law in effect at the time of the

plea and the sentencing did not require the court to make any findings before it

could impose consecutive sentences.

In any event, as appellant himself recognizes, he agreed to the imposition

of consecutive sentences as part of his plea agreement. Even if the court was

required to make findings before imposing consecutive sentences, the plea

agreement effectively waived this requirement. Cf. State v. Seals, Cuyahoga

App. No. 88047, 2007-Ohio-819. Therefore, we overrule the second assigned

error.

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Appellant's third and fourth assignments of error raise closely related

issues. In his third assignment of error, appellant contends the court failed to

make adequate inquiry into his request to discharge his attorney before he

entered his pleas. The fourth assignment of error claims the court erred by

denying his request to discharge counsel. Appellant waived these alleged errors

when he pleaded guilty.

"[A] guilty plea represents a break in the chain of events which has

preceded it in the criminal process. When a criminal defendant has solemnly

admitted in open court that he is in fact guilty of the offense with which he is

charged, he may not thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the entry of the guilty

plea. He may only attack the voluntary and intelligent character of the guilty

plea by showing that the advice he received from counsel was not within the

standards set forth in McMann [v. Richardson (1970), 397 U.S. 759, 90 S.Ct.

1441, 25 L.Ed.2d 763]." Tollett v. Henderson (1973), 411 U.S. 258, 267. Thus,

"the crucial inquiry in the instant cause becomes whether defendant's plea of

guilty constituted a knowing, intelligent and voluntary waiver of his right to" the

effective assistance of counsel earlier in the proceedings. State v. Spates (1992),

64 Ohio St.3d 269, 272.

VO[OFa50 P60 5 10

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At the plea hearing, appellant specifically stated that he was satisfied with

his attorney's representation. The trial court meticulously complied with the

requirements of Crim.R. 11(C), and expressly determined that "this Court is

satisfied that you've been informed of your Constitutional rights and that you

understand the nature of the charges, the amendments that the State of Ohio

placed on the record, the effect of your plea and the maximum penalties that I

could impose. I'm also going to find, Mr. Gilbert, that your plea is being made

knowingly, intelligently and voluntarily here this afternoon." Accordingly, we

find appellant waived any error in the court's disposition of his request to

discharge counsel.

Moreover, appellant never expressly asked the court to discharge his

attorney and appoint new counsel. The trial court did not err by failing to

inquire into or grant a request that was not made.

Appellant's fifth assignment of error claims the court erred by accepting

a guilty plea which was not voluntary. He suggests that his pleas were coerced,

and that the court did not adequately inquire whether the pleas were voluntary.

In support of his contention that the pleas were coerced, appellant claims

the court's denial of his request to discharge bis appointed attorney left him

"saddled with counsel who was unwanted, unprepared, and uninterested. Trial

with such representation was not an option." This argument implies that

V0 650 POC15i1

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appellant's plea was coerced because his attorney was not ready or willing to

proceed to trial, yet the court would not allow him to discharge counsel.

Dramatic though these arguments sound, however, none of these assertions is

supported by the record. As noted above, appellant never expressly asked the

court to discharge his attorney, and only obliquely raised the matter on the day

of trial by having his attorney inform the court that he had "issues" with counsel.

There is no evidence counsel was unprepared to go to trial, or that he was

"uninterested." Furthermore, appellant said that he was satisfied with his

attorney's representation at the plea hearing. Accordingly, we find appellant

has not supported his contention that his plea was coerced because he was being

forced to go to trial with an attorney who was unprepared.

The trial court specifically asked appellant whether there had been any

threats or promises made to him, or inducements for him to change his plea, and

appellant said no. The court expressly found that appellant's plea was

voluntary. The mere fact that the court did not specifically ask whether he was

coerced does not undermine the court's finding that the plea was voluntary.

Therefore, we overrule the fifth assignment of error.

Mnally, appellant argues that he did not receive effective assistance of

counsel on his motion to withdraw his guilty plea. He contends that the

assigned attorney who filed his motion had a "conflict of interest" because the

V91@ 6 ^0 POO 5 12

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attorney had a personal reason not to pursue one of the primary reasons for the

motion to withdraw, i.e., "the discord between Appellant and his court-appointed

counsel and the allegations regarding his lack of interest and his lack of

preparation."2 He contends that he was prejudiced because the court limited

him to the arguments raised in the written motion filed by the assigned

attorney, whom he discharged.

As noted above, appellant cannot demonstrate these contentions on the

record; his arguments necessarily rely on evidence outside the record about his

conversations with counsel and counsel's preparation. Therefore, he cannot

pursue these arguments on direct appeal. See, e.g., State v. Scott-Hoover,

Crawford App. No. 3-04-11, 2004-Ohio-4804, 118.

Affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant's

conviction having been affirmed, any bail pending appeal is terminated. Case

2Apparently, appellant would have claimed that he should be allowed tawithdraw his plea because he had felt compelled to plead because his attorney was

unprepared.

VOL@ 6 5 0 260 513

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remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

FRANK D. CELEBREZZE, P.J., andSEAN C. GALLAGHER, J., CONCUR

V0 6 50 FGD514