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State v. Howard

Court of Appeals of Ohio, Fifth District

July 2, 2013

STATE OF OHIO Plaintiff-Appellee
ERICK MYDELL HOWARD Defendant-Appellant

Criminal appeal from the Stark County Court of Common Pleas, Case No. 2011CR1470B

For Plaintiff-Appellee JOHN FERRERO BY: CHRYSSA N. HARTNETT Stark County Prosecutor's Office


Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. Sheila G. Farmer, J.


This matter came before the Court upon appellants' motions for reconsideration pursuant to App.R. 26(A) filed May 23, 2013.

In the case at bar, this Court vacated Howard's sentences for two reasons. The Court unanimously agreed to remand the case for failure to merge allied offenses. (Farmer, J. dissenting, "I would only remand for resentencing on allied offenses.", ¶141). The majority further agreed that there exists an appearance Howard was penalized because he chose to exercise his right to a jury trial rather than plead guilty. Howard, 2013-Ohio-1972, ¶85; (Hoffman, J. Concurring in part)("I further concur in Judge Gwin's decision to vacate and reconsider Appellant's sentence. I do so based solely on his conclusion there exists an appearance Appellant was penalized because he chose to exercise his right to a jury trial rather than plead guilty"), ¶137.

Upon review, we find the Motion is well taken in part, and denied in part.

The appellee correctly notes that the Memorandum-Opinion filed May 13, 2013 at ¶87 incorrectly states that the trial court imposed appellant's conviction for rape concurrently, when in fact the sentence was imposed consecutively. Further, the Court left out the citation to State v. Morris, 159 Ohio App.3d 775, 2005-Ohio-962, 825 N.E.2d 637, at ¶83.

Accordingly, this Court corrects the May 13, 2014 Opinion at ¶87 to delete "However, the trial court did not increase Howard's sentence because of this difference, choosing instead to run the time for the rape concurrent with the sentence for the aggravated burglary and aggravated robbery. In spite of the time for the rape charge running concurrently, " The opinion if further corrected to include the missing citation at ¶83.

Appellee's Motion for Reconsideration filed May 23, 2013 is denied in all other respects in its entirety.

Therefore, this nunc pro tunc judgment entry along with a nunc pro tunc opinion and judgment entry shall be filed in this matter to correct the errors.



Gwin, P.J.

{¶1} Appellant Erick Mydell Howard ["Howard"] appeals his convictions and sentences on aggravated burglary, aggravated robbery, rape, and kidnapping, together with the attendant firearm specifications. Plaintiff-appellee is the State of Ohio.

Facts and Procedural History

{¶2} Brian McNemar and Ava Gabriele were known to have cash readily available, as McNemar was a drug dealer who kept a safe in his basement. During the night of August 19, 2012, two armed masked intruders entered into the bedroom of the home where the couple was sleeping. McNemar and Gabriele described the two attackers as black males wearing jeans and long sleeves with their faces covered with masks. Entry was made by duct taping a basement window and breaking the glass with the butt of one of the guns. A neighbor saw this activity and called the police shortly after 3:00 a.m.

{¶3} The intruders took the cell phones of the couple from a nightstand. The larger of the intruders was using one of the cell phones for a light source. The smaller of the two intruders used duct tape to bind the hands and feet of McNemar; the larger intruder used the duct tape to bind Gabriele in a similar manner. Duct tape was placed across McNemar and Gabriele's mouths to prevent them from screaming. The intruders demanded the combination to the safe. McNemar told the pair that there was nothing in the safe. The smaller of the intruders asked, "Where is the cash." McNemar motioned to some envelopes on the nightstand, which contained $1, 500.00 in cash. The smaller intruder began looking around the bedroom for other valuables.

{¶4} The larger of the two intruders told Gabriele, "let me see those titties again." McNemar, who was able to loosen the duct tape on his mouth slightly, told Gabriele to "let him." [3T. at 459]. McNemar heard the intruder say, "Those are some nice tits."

{¶5} The larger intruder removed the covers saying, "Let me see that pussy." He then tells Gabriele to spread her legs. She cannot because her legs had been duct taped together. The larger intruder grabbed Gabriele's ankles and lifted her legs into the air. Gabriele testified that she then felt the tip of something being inserted into her vagina. The duct tape fell off Gabriele's mouth and she began to scream. McNemar, who by this time had been able to free his hands, lunged at the assailant. The smaller assailant restrained McNemar by shoving the pistol into McNemar's eye. The couple was then restrained with more duct tape. After regaining control, the intruders proceeded to search for more money. The pair hear the smaller intruder yell, "Come on Steve let's go." The intruders left the residence sometime around 3:47 a.m.

{¶6} Once the police arrived, Gabriele was taken to the hospital where a rape kit was performed. A maroon sweatshirt and a pair of gloves were found in the side yard of the complex. A contact lens thought to belong to one of the intruders was discovered in the couple's bed.

{¶7} Neither victim was able to identify their attackers. Initially, Gabriele and McNemar informed the police that both of the intruders were African-American. Gabriele also informed the S.A.N.E. nurse while at the hospital the one intruder had referred to the other intruder as "Steve." McNemar informed the police that he overheard one of the intruders say the name "Nicole[1]."

{¶8} Michael Coy, a co-worker and friend of McNemar read about the break-in in a local community newspaper. Coy related that he thought he had called McNemar that night to arrange to buy marijuana from him. When McNemar told him he did not have any, Coy called Howard. Coy claimed Howard sounded suspicious because he told Coy that he, Howard "does not do that anymore, but he may have some later on." Although unable to recall the description at trial, Coy felt the description of the suspect in the break-in of his friend's home that was in the newspaper matched Howard. Coy told McNemar that he thought Howard was involved in the incident.

{¶9} McNemar shared Coy's suspicion with Gabriele, who in turn relayed the information to her mother. Because Howard had been a standout athlete in high school, Gabriele asked her mother to search the internet for "anything that would help us identify him." Jane Gabriele was able to locate an interview of Howard conducted three-years ago on Jane Gabriele played the audio portion of the interview with Howard from her computer speaker to her telephone. The daughter listened to the feed on her cell phone. Ava Gabriele recognized the voice as the larger of the two intruders and the one who had physically assaulted her.

{¶10} Rumors began to circulate about the identity of the intruders. Michael Taylor was telling people at a local park about his involvement in the crime. On August 29, 2011, Gabriele and McNemar told the police about the internet video and their belief that Howard had been one of the intruders.

{¶11} The police questioned Taylor on September 1, 2011. Taylor denied having any knowledge of the incident. He was questioned by the police a second time on September 5, 2011. Taylor continued to deny any knowledge of the incident.

{¶12} However, Shane Riggins informed the police that Taylor had told him the perpetrators had gone to a local Wal-Mart to purchase duct tape and gloves on the night of the incident. The police obtained the video surveillance tapes from inside the store as well as video tapes of the parking lot. The police also obtained copies of receipts for duct tape, stealth gloves and gum. Detective Randy Manse of the North Canton Police Department recognized Howard and Seth Obermiller as the individuals who had purchased the duct tape and the gloves. He testified that the pair entered the store separately. Howard purchased the gloves; Obermiller purchased the duct tape. The video showed Howard and Obermiller leaving the store and getting into Michael Taylor's car.

{¶13} The police questioned Howard on September 5, 2011. He told the police that he was at Dogwood Park on the night of the incident. Howard told the police that he was mad because he had bought some "acid" and believed that it was fake. Howard admitted that he "hooked up" with Michael Taylor. He further admitted that he knew McNemar. He denied any knowledge of the break-in.

{¶14} On September 7, 2011, police obtained DNA samples from Taylor and Howard. Later that day, Taylor appeared at the police station of his own accord. Taylor told the police about Obermiller's involvement in the planning of the break-in and its subsequent execution; however, Taylor did not implicate Howard. Taylor told the detective that the third person was "Ghost" a person he had never met before.

{¶15} Obermiller had opted to go to Pennsylvania to let things cool down. While driving in Pennsylvania, Obermiller was pulled over with the gun and some marijuana in the car, and was arrested. After this arrest, he returned to North Canton, where he was contacted by the police about a week after the break-in.

{¶16} Obermiller told the police during the night of August 19, 2012, he and Howard were partying in Cuyahoga Falls, smoking marijuana and taking acid. Believing the acid to be fake, the two returned to North Canton and talked about robbing the person who sold them the acid. Obermiller drove to his home to pick up two pairs of gloves, two ski masks, and a gun (a .9 mm Llama). Howard then made a phone call to Jamie Hawkins about getting another gun from him. Obermiller drove to Hawkins' home next. Howard told Hawkins that he needed a gun because he had been robbed. Hawkins told Howard that he could borrow his .45 caliber handgun, but he had to return it by 4:00 a.m. Hawkins told Howard that he would hold Howard's cell phone as collateral.

{¶17} Howard and Obermiller then picked up Taylor, who had just got off work. Taylor suggested to his two friends that they rob McNemar and Gabriele. Taylor was friends with both McNemar and Gabriele, and had bought and smoked pot from and with them.

{¶18} The trio later went to a Wal-Mart to make purchases in furtherance of their plan. The trio then went to the McNemar-Gabriele residence in North Canton. After parking their vehicle, Taylor remained outside as a lookout. All three went to the backyard where they duct taped a basement window and broke it with the butt of one of the guns. Obermiller and Howard then went into the basement with their ski masks and gloves, while Taylor opted to stay outside and serve as a lookout. A neighbor saw this activity and called the police shortly after 3:00 a.m. Taylor called Obermiller to alert him that the police had arrived. Not wanting to be caught by the police, Taylor left his gloves and hoodie at his hiding spot and left the area. Taylor's cell phone was also dying, so he went to a nearby Laundromat to recharge it. Howard and Obermiller remained inside the residence as the police searched the backyard area, and then proceeded upstairs to look for the occupants once the police flashlights had left.

{¶19} After robbing the couple, Howard and Obermiller returned to the car. Taylor was not there. The pair proceeded back to Hawkins to return the gun and retrieve Howard's cell phone. Hawkins had in fact texted Obermiller close to 4:00 a.m. inquiring about the gun. The two then got rid of their gloves and ski masks. The two also divided the money. While doing this, Obermiller got a call from Taylor who told him he was at the Laundromat. The two picked Taylor up there and dropped him off near his home.

{¶20} Obermiller ran into Taylor later that day, who told him about telling people at a park what they had done. Obermiller told Taylor to shut up, and opted to go to Pennsylvania until things had cooled down. Obermiller turned the gun over to the North Canton Police. Obermiller admitted that the contact lens found in Gabriele and McNemar's bed belonged to him. DNA tests confirmed that it was Obermiller's.

{¶21} In exchange for testifying at Howard's trial, Obermiller received an aggregate sentence of 7 years upon his pleas to aggravated robbery with a gun specification, aggravated burglary with a gun specification and kidnapping. Taylor pled guilty to complicity to attempted burglary and received a community control sanction.

{¶22} Before trial began, Howard attempted to fire his retained attorney and retain new paid counsel. Howard explained to the court that he believed he was innocent, but that his lawyer did not believe him and that they had a "major conflict of interest." His attorney agreed that the attorney-client relationship had eroded, and asked to not be "forced" to defend Howard. The court stated that it did not believe there was a complete breakdown in communication nor an irreconcilable conflict between Howard and his counsel, and denied the request to hire new counsel.

{¶23} At the conclusion of trial, the jury found Howard guilty as charged in the indictment. The trial court, upon accepting the jury's verdict and convicting Howard thereon, deferred sentencing to permit motions to be filed. Howard raised a challenge to his convictions and potential sentences based on the offenses being allied offenses of similar import. The trial court, after review of these motions and responses, overruled Howard's R.C. 2941.25 motion and proceeded with sentencing. The trial court imposed an 8-year prison term on all four offenses, as well as the mandatory 3-year prison term for the four firearm specifications. Three of the 8-year prison terms were imposed consecutively; with the 8-year term for the kidnapping conviction imposed concurrently. The court merged two of the firearm specifications into the remaining two firearm specifications, resulting in two consecutive 3-year prison terms imposed consecutively with their underlying offenses. As a result, the trial court sentenced Howard to an aggregate prison term of 30 years.

Assignments of Error

{¶24} Howard raises five assignments of error:







{¶30} In his first assignment of error, Howard alleges that the trial court deprived him of an opportunity to retain counsel of his choice.

{¶31} The Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." U.S. CONST. amend. VI. This right "guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds." Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624-25, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989). "A criminal defendant who desires and is financially able to retain his own counsel 'should be afforded a fair opportunity to secure counsel of his own choice.'" Ibid. (quoting Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932)).

{¶32} The Supreme Court has held "that erroneous deprivation of the right to counsel of choice, 'with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as "structural error.'" United States v. Gonzalez-Lopez, 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (quoting Sullivan v. Louisiana, 508 U.S. 275, 282, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993)). Accord, State v. Chamblis, 128 Ohio St.3d 507, 2011-Ohio-1785, 947 N.E.2d 651, ¶18 ("[T]he erroneous deprivation of a defendant's choice of counsel entitles him to an automatic reversal of his conviction.") In other words, a defendant who establishes that his right to counsel of choice was violated need not demonstrate prejudice in order to be entitled to relief, as a defendant claiming ineffective assistance of counsel is required to do. Id . See also, Chambliss, at ¶19.

{¶33} The importance of an opportunity to employ counsel of choice cannot be understated. In Wheat v. United States the Supreme Court reiterated,

[T]he Sixth Amendment provides protection for a criminal defendant's choice of counsel. More than 50 years ago, we stated that "[i]t is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice." Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932). This Court has reiterated this principle on frequent occasions. See, e.g., Chandler v. Fretag, 348 U.S. 3, 9, 75 S.Ct. 1, 4-5, 99 L.Ed. 4 (1954); Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464-65, 86 L.Ed. 680 (1942). Our statements on this score stem largely from an appreciation that a primary purpose of the Sixth Amendment is to grant a criminal defendant effective control over the conduct of his defense. As this Court previously has stated, the Sixth Amendment "grants to the accused personally the right to make his defense, " because "it is he who suffers the consequences if the defense fails." Faretta v. California, 422 U.S. 806, 819-820, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975). An obviously critical aspect of making a defense is choosing a person to serve as an assistant and representative. In addition, lodging the selection of counsel with the defendant generally will promote the fairness and integrity of criminal trials.

486 U.S. 153, 165-166, 108 S.Ct. 1692, 100 L.Ed.2d 140(1988) (Marshall, J., dissenting)(disagreeing with the majority's suggestion that the trial court's decision as to whether a potential conflict justifies rejection of a defendant's chosen counsel is entitled to some kind of special deference on appeal and expressing belief that the "abuse of discretion" standard is not appropriate).

{¶34} In the case at bar, Howard exercised his Sixth Amendment right by independently retaining attorney Sims. Sims and his associate assumed responsibility for Howard's defense many months in advance of trial, and he diligently represented Howard through trial and sentencing. Thus, this is not a case in which the trial court's action resulted in the defendant being forced to trial with an inadequately prepared attorney or no attorney at all.

{¶35} On the morning of trial, attorney Sims represented to the judge that Howard wanted Sims to remain on the case. (1T. at 5). Further, the trial judge asked Howard directly if it was Howard's choice to have attorney Sims and his associate counsel represent him at trial. Howard told the trial judge that it was his desire for counsel to continue to represent him. (1T. at 7).

{¶36} Howard had a fair and reasonable opportunity to replace Sims. Howard with the assistance of family members exercised his Sixth Amendment right by independently seeking out attorney O'Byrne. Howard's request came after the first day's voir dire had concluded and the second day's proceedings were about to begin. (2T. at 109). At that time, Howard had not retained another attorney to replace Sims. Attorney O'Byrne contradicted Howard's representation that Howard had retained O'Byrne. (1T. at 122-123; 125). At the time of the motion, there was nothing to suggest that O'Byrne would be willing or available to take Howard's case.

{¶37} Attorney Sims, however, did request a continuance so that Howard could retain substitute counsel of his choice. (2T. at 118-119).

{¶38} Over thirty years ago, this court recognized,

With increasing frequency, trial courts are facing the issue of balancing the court's discretionary power to control his docket and trials in his court and the defendant's right under the Sixth Amendment to counsel. Frequently the issue arises upon a question of eleventh hour continuance. See United States v. Leavitt, 608 Fed.2d 1290 (1979); Gandy v. Alabama 569 Fed.2d 1318 (1978); U.S. v. Inman, 483 Fed.2d 738 (1973); Ungar v. Sarafite, 376 U.S. 575, 84 Sup.Ct. 841, 11 L.Ed.2d 921 (1964); United States v. Johnson, 318 Fed.2d 288 (1963).
"Basic trust between counsel and defendant is the cornerstone of the adversary system and effective assistance of counsel." Linton v. Perini, 656 Fed.2d 207 (1981). Further, if we conclude that the record requires a finding that the trust relationship had disintegrated to the point where counsel could no longer render effective assistance, such error cannot be harmless error. Holloway v. Arkansas 435 U.S. 475, 98 Sup.Ct. 1173, 55 L.Ed. 2D 426 (1978); Chapman v. California, 386 U.S. 18, 87 Sup.Ct. 824, 17 L.Ed.2d 705.

State v. Pancake, 5th Dist. No. 81-CA39, 1982 WL 3044(July 12, 1982).

{¶39} The Supreme Court has emphasized, however, that the right to counsel of choice is "circumscribed in several important respects." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Indeed, there are four specific situations in which the Sixth Amendment does not entitle a defendant to preferred counsel: A defendant does not have the right to be represented by (1) an attorney he cannot afford; (2) an attorney who is not willing to represent the defendant; (3) an attorney with a conflict of interest; or (4) an advocate (other than himself) who is not a member of the bar. Id.

{¶40} In addition, the Supreme Court, in Gonzalez-Lopez, explicitly upheld its previous holding in Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), where the Court "recognized a trial court's wide latitude in balancing the right to counsel of choice ... against the demands of its calendar." Gonzalez-Lopez, 548 U.S. at 152. The trial court's difficult responsibility of assembling witnesses, lawyers and jurors for trial "counsels against continuances except for compelling reasons." Morris, 461 U.S. at 11.

{¶41} In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), the Court considered the matter under a due process analysis. It said:

The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence.... Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.... There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied...." (Emphasis added) Id . at 589, 84 S.Ct. at 849.

{¶42} In the case at bar, the conflict between Howard and Sims stemmed primarily from counsel's failure to paint a rosy picture of Howard's chances for full exoneration at trial.

{¶43} In State v. Cowans, 87 Ohio St.3d 68, 1999-Ohio-250, 717 N.E.2d 298 (1999) the Court in discussing substitution of appointed counsel noted, "'A lawyer has a duty to give the accused an honest appraisal of his case. * * * Counsel has a duty to be candid; he has no duty to be optimistic when the facts do not warrant optimism." Brown v. United States (C.A.D.C.1959), 264 F.2d 363, 369 (en banc), quoted in McKee v. Harris (C.A.2, 1981), 649 F.2d 927, 932. "'If the rule were otherwise, appointed counsel could be replaced for doing little more than giving their clients honest advice.'" McKee, 649 F.2d at 932, quoting McKee v. Harris (S.D.N.Y.1980), 485 F.Supp. 866, 869." Id . at 73, 717 N.E.2d at 304-305.

{¶44} In the case at bar, no attorney filed an appearance or made a motion for substitution of counsel. The second morning of the trial was the first time Howard had let the court know that he was unhappy with his attorney. This is after Howard had assured the ...

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