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State v. Bizzell

Court of Appeals of Ohio, Twelfth District

May 7, 2007

STATE OF OHIO, Plaintiff-Appellee,
v.
ADRIAN BIZZELL, Defendant-Appellant.

CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS Case No. CRI 2005-5271

William E. Peelle, Clinton County Prosecuting Attorney, Deborah Quigley, for plaintiff-appellee

Susan M. Zurface Daniels, for defendant-appellant

OPINION

BRESSLER, J.

{¶1} Defendant-appellant, Adrian Bizzell, appeals his conviction in the Clinton County Court of Common Pleas for failure to comply with the order or signal of a police officer.

{¶2} On September 22, 2005, appellant was indicted for failure to comply with the order or signal of a police officer in violation of R.C. 2921.331(B). Appellant's jury trial began on November 28, 2005. On that day, just before the trial was to begin, appellant indicated to the court that he did not want his attorney to represent him any further. The trial court instructed appellant that he had the constitutional right to represent himself at trial. After briefly cautioning appellant against representing himself, appellant waived his right to proceed with an appointed attorney. The trial court permitted appellant to act pro se, but instructed appellant's appointed counsel to remain in the courtroom for assistance. Appellant was convicted, and sentenced to serve a four-year prison term. Appellant appeals his conviction, raising two assignments of error.

{¶3} Assignment of Error No. 1:

{¶4} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO PERMIT A SUBSTITUTION OF HIS ASSIGNED COUNSEL FOR MR. BIZZELL WHERE THE RECORD INDICATES A COMPLETE BREAKDOWN IN COMMUNICATION, MR. BIZZELL HAD NEVER PREVIOUSLY REQUESTED A SUBSTITUTION OF COUNSEL, AND THE TRIAL DATE IN THE MATTER HAD NEVER PREVIOUSLY BEEN CONTINUED."

{¶5} "An indigent defendant has no right to have a particular attorney represent him and therefore must demonstrate 'good cause' to warrant substitution of counsel." State v. Cowans, 87 Ohio St.3d 68, 72, 1999-Ohio-250, citing United States v. Iles (C.A.6, 1990), 906 F.2d 1122, 1130. One such example of "good cause" is where there is a complete breakdown in communication between the defendant and his court-appointed attorney. State v. Blankenship (1995), 102 Ohio App.3d 534, 558.

{¶6} The decision whether to substitute an appointed attorney for an indigent defendant is within the trial court's discretion. State v. Jones, 91 Ohio St.3d 335, 343-344, 2001-Ohio-0057. Therefore, we review the trial court's decision denying appellant's request for a substitution of counsel for an abuse of discretion. See State v. Murphy, 91 Ohio St.3d 516, 523, 2001-Ohio-112.

{¶7} In support of appellant's request for a substitution of counsel, appellant explained to the trial court that his attorney, Inza Johnson Hebb, failed to file a motion to dismiss the charge, as he had requested. Appellant also complained that Hebb failed to timely subpoena witnesses, failed to properly investigate the case, called him "crazy" and told him she did not like him.

{¶8} In response to appellant's allegations, Hebb explained that she considered filing a motion to dismiss, but found that she could not properly support such a motion. Hebb further explained that she attempted to contact both of the witnesses appellant suggested, but was only able to reach one of them. Hebb stated that she found this witness to be of no assistance, and that appellant was not able to provide her with the means to contact the other witness. In addition, Hebb told the court that she had thoroughly reviewed the case and was prepared for trial.

{¶9} After reviewing the record, we find that the trial court did not abuse its discretion in denying appellant's request for a substitution of an appointed attorney. Disagreement between a defendant and his attorney over trial tactics and strategy does not necessarily warrant a substitution of counsel. See State v. Glasure (1999), 132 Ohio App.3d 227, 239. Moreover, mere hostility, tension, and personal conflicts between the defendant and his attorney do not constitute a total breakdown in communication, if those problems do not interfere with the preparation and presentation of a competent defense. State v. Gorden, 149 Ohio App.3d 237, 241, 2002-Ohio-2761. ...


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