Criminal Appeal from the Lake County Court of Common Pleas, Case No. 11 CR 000736.
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant Prosecutor, (For Plaintiff-Appellee).
Paul A. Mancino, Jr., Mancino, Mancino & Mancino, (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
(¶1} This appeal is from the final judgment in a criminal proceeding before the Lake County Court of Common Pleas. Following a jury trial, appellant, Ricci R. Lewis, was found guilty on multiple counts of aggravated burglary and aggravated robbery, and one count of felonious assault. He contends that his conviction cannot stand because various prejudicial errors were committed at trial and during the sentencing hearing.
(¶2} This case concerns a home invasion at approximately 11:00 p.m. on the evening of April 5, 2011. The home is part of a duplex on Richmond Street in Painesville, Ohio, and was being rented by Russell Perry and Shaquetta Page. Shaquetta's three minor children were also permanent residents in the home. In addition, one of Russell's minor daughters would occasionally spend the night there.
(¶3} Even though the couple's home had two entranceways, the back door was used as the primary means for entering the residence. The back door leads directly into the kitchen. Upon exiting the kitchen and moving forward are the dining room and then the living room. At one side of the living room is a staircase leading to the second floor, where three bedrooms are located.
(¶4} On the evening at issue, Russell and Shaquetta had a late dinner with her three children and one of Russell's daughters. When the meal ended shortly before 11:00 p.m., Shaquetta and all four children went upstairs to prepare for bed. However, Russell stayed downstairs to clean the kitchen. Near the end of this process, Russell took the trash outside to a container near the back door.
(¶5} As Russell was re-entering the home and beginning to shut the back door, two men pushed on the door and forced their way into the kitchen. Initially, the first man pushed Russell backward with his hands. As Russell tried to resist, the second intruder produced a small silver firearm and placed the barrel directly on Russell's forehead. At that time, the second man said directly to Russell: "[Y]ou know what it is, we want everything, * * *."
(¶6} Although Russell no longer tried to resist, the two intruders continued to push him across the room until he fell to the floor by the refrigerator. During the course of the confrontation, the two men struck Russell on his head a number of times, and he sustained a number of scrapes and bruises on his face and skull.
(¶7} When Russell was finally subdued, he was lying on his stomach with his face pressed on the floor. The first man sat on top of Russell's torso and held his head down. At first, Russell thought the first man was pressing the barrel of a firearm to the back of his head; thus, he made no attempt to get up for a short period. While lying on the floor, Russell saw the second man exit the kitchen and walk through the dining room and living room.
(¶8} After going through the living room, the second intruder went up the stairs and started down the hallway toward Shaquetta's bedroom. As the man walked toward her, Shaquetta was talking on her cell phone to her sister. Initially, Shaquetta believed that the man entering her room was her brother; as a result, she told her sister goodbye and "hung up" the phone. She then turned toward the second man and quickly realized her mistake. However, before she could do anything, the second man again pulled out the small firearm, placed it against Shaquetta's head, and said that he was going to rob her.
(¶9} Immediately after making the statement to Shaquetta, the second intruder heard a police siren going off in the distance. In response, he grabbed the cell phone from Shaquetta's hands, ran over to her bedroom dresser, and momentarily looked for something else to take. When he did not see anything, he ran into the hallway and went down the stairs. After quickly checking upon the welfare of the four children, Shaquetta followed the second man to the first floor.
(¶10} While the second man was upstairs, Russell realized that the first man did not have a gun, but was instead forcing Russell's head down with his knuckles. In light of this, Russell began to resist again, and was able to throw the first intruder off. Upon getting to his feet, Russell shoved the first man toward the back door, and was quickly able to force him out the door. The first man then ran through the back yard and leaped over a fence into a neighbor's yard. Although Russell followed the first man outside and saw him go over the fence, he did not try to chase him any further. Rather, he ran down his driveway, intending to go across the road and use a phone in a local business to call the police.
(¶11} After going downstairs, the second intruder ran to the kitchen and went out the back door. Russell never saw the second man exit the home. However, Shaquetta followed the second man out the back door and saw him leap over the fence on the side of the yard. She then walked toward the street at the front of the home and met Russell in the middle of the roadway. Since Russell's daughter had used her cell phone to call the police while the incident was still ongoing, the police arrived at the scene within five minutes after the second intruder ran away.
(¶12} Neither of the intruders was apprehended the evening of the incident. In speaking to the police upon their arrival at the scene, Russell stated that he previously had seen the first intruder, i.e., the man who held him down on the kitchen floor, at various places in the neighborhood, but could only recall that his first name was "Ricci." This name was not sufficient to enable the police to immediately identify the first man. Regarding the separate intruder with the firearm, Shaquetta likewise told the police that she recognized him from the neighborhood. Even though she also tried to provide a first name for the second intruder during her initial statement to the police, that name was incorrect, and it was not until a few days later that Shaquetta's friends informed her of the second man's correct first name.
(¶13} Despite the fact that Shaquetta never saw the intruder who held Russell on the kitchen floor, she had a general idea of who he was based upon Russell's basic description. Approximately three days after the incident, Shaquetta and Russell were at a local tavern having drinks when Shaquetta saw the first intruder enter the bar. Upon recognizing Shaquetta, the man came over to the couple and spoke directly to Russell. Specifically, the man stated that Russell should not have contacted the police about the incident, and that they could have settled the matter "in the streets." When Russell did not respond, the man left them and went to another area of the tavern.
(¶14} Once this confrontation was over, Shaquetta and Russell exited the tavern and contacted the Painesville police. After meeting the police in the bar's parking lot, Shaquetta explained what had just occurred, and then accompanied an officer back into the bar where she identified the man in question. Based upon this, the police escorted the man outside and conducted a brief interview about the home invasion. Even though the police did not arrest the man at the time, they were able to establish that the man was Ricci R. Lewis, appellant.
(¶15} After an initial complaint was filed in the Painesville Municipal Court, the county grand jury returned a seven-count indictment against appellant in late December 2011. These charges included two counts of aggravated burglary, a first-degree felony under R.C. 2911.11(A), three counts of aggravated robbery, a first-degree felony under R.C. 2911.01(A), one count of felonious assault, a second-degree felony under R.C. 2903.11(A), and one count of complicity to aggravated robbery, a first-degree felony under R.C. 2923.02(A). In addition to the primary offense, each of the counts also had a firearm specification, under which it was asserted that appellant displayed or used a firearm while committing the underlying defense.
(¶16} Immediately prior to trial, the state dismissed the charge of complicity to aggravated robbery. As a result, appellant was tried on the identical six charges brought against his co-defendant, Carvell J. Fomby, who was identified as the "second man" during the home invasion. Given that the charges against appellant and Fomby were predicated upon the same facts, their trials were consolidated.
(¶17} After an initial delay of approximately 45 days, appellant was able to post bond and was released during the majority of the pretrial period. Three weeks prior to the scheduled date of his trial, appellant had another brief encounter with Shaquetta at a second bar/tavern in Painesville. According to Shaquetta, appellant approached her and indicated that he had read her prior testimony during a preliminary hearing before the municipal court. Appellant then offered her money to drop the pending charges, and also stated that there were "girls" in the neighborhood who were looking to assault her.
(¶18} Upon declaring appellant indigent, the trial court appointed counsel on his behalf. After the case was pending for three months, the appointed attorney moved to withdraw as counsel on the basis that appellant was not cooperating in his defense and was not accepting sound legal advice. Without waiting for the state to respond, the trial court overruled the motion to withdraw. Along the same lines, at the outset of his trial, appellant personally requested the trial court to appoint him a new trial attorney for the reason that he was not confident that his present counsel could provide adequate legal representation. After hearing separate statements from the state, appellant himself, and his present trial counsel, the trial court denied the pro se motion for new counsel.
(¶19} Appellant's three-day jury trial was conducted in May 2012. Russell and Shaquetta were the primary witnesses for the state. In relation to appellant's role in the home invasion, Russell testified that he was absolutely certain appellant was the person who pushed the back door open, helped wrestle him to the kitchen floor, and then sat upon him to keep him subdued. Additionally, both Russell and Shaquetta stated that a firearm had been held to their heads during the course of the incident. At the close of the evidence, the jury found appellant guilty on all six counts and firearm specifications.
(¶20} After the county probation department prepared a presentencing report, the trial court held a separate sentencing hearing. First, concerning the two aggravated burglary counts, the court concluded that these offenses had to be merged for purposes of sentencing. Second, as to the remaining three counts relating solely to Russell, the trial court similarly held that two of the aggravated robbery counts and the sole felonious assault count would be merged. Accordingly, appellant was only sentenced on a single count of aggravated burglary, two counts of aggravated robbery, and two of the firearm specifications. In addition to imposing two three-year terms for the firearm specifications, the court ordered appellant to serve two concurrent terms of eight years on the aggravated robbery counts, and a six-year term on the remaining burglary count, to be served consecutively to the "aggravated robbery" terms, for an aggregate term of twenty years.
(¶21} In appealing his entire conviction and sentence, appellant has asserted twenty assignments of error for review:
(¶22} " Defendant was denied his Sixth Amendment right to counsel when the court refused to allow court-appointed counsel to withdraw because of a breakdown in the attorney-client relationship.
(¶23} "[2.] Defendant was denied due process of law when the court refused to grant a continuance to defendant to obtain counsel after defendant was remanded to jail because of a failure to appear at a hearing before a different judge for which he had no notice.
(¶24} "[3.] Defendant was denied due process of law when the court amended the indictment as to Ricci Lewis.
(¶25} "[4.] Defendant was denied due process of law when the court instructed that a meeting between defendant and Shaquetta Page gave rise to an inference of consciousness of guilt.
(¶26} "[5.] Defendant was denied due process of law when the court improperly singled out the 'one witness' rule.
(¶27} "[6.] Defendant was denied due process of law when the court improperly referenced defendant as an accomplice.
(¶28} "[7.] Defendant was denied due process of law when the court lessened the burden of proof by instructing on the gist of the offense.
(¶29} "[8.] Defendant was denied due process of law when the court failed to inform the jury that it must unanimously agree on theory in order to find defendant guilty.
(¶30} "[9.] Defendant was denied due process of law when the court imposed consecutive sentences which were contrary to law.
(¶31} "[10.] Defendant was denied due process of law when the court rotely recited the statutory criteria for imposing consecutive sentences.
(¶32} "[11.] Defendant was denied due process of law and subjected to unconstitutional multiple punishments when he was set to be sentenced on two firearm specifications arising out of the same transaction.
(¶33} "[12.] Defendant was denied due process of law and equal protection of the law when he received a greater sentence than the co-defendant.
(¶34} "[13.] Defendant was subjected to unconstitutional multiple punishments when the court failed to merge all offenses into one offense of aggravated burglary.
(¶35} "[14.] Defendant was denied due process of law when the court sentenced defendant for merged offenses.
(¶36} "[15.] Defendant was denied due process of law when he was convicted and sentenced under a multiplicitious (sic) indictment.
(¶37} "[16.] Defendant was denied due process of law when the court overruled his motion for judgment of acquittal.
(¶38} "[17.] Defendant is entitled to a new trial as the verdicts are against the manifest weight of the evidence.
(¶39} "[18.] Defendant was denied due process of law when the court improperly imposed court costs.
(¶40} "[19.] Defendant was denied due process of law when this case was improperly transferred from the original assigned judge to a new judge.
(¶41} "[20.] Defendant was denied effective assistance of counsel."
(¶42} Since appellant's first two assignments raise interrelated issues, they will be addressed together. Under both assignments, he contends that the trial court erred in requiring his original court-appointed counsel to represent him at trial. First, appellant maintains that his pro se motion for the appointment of new counsel should have been granted because he was able to show that there had been a breakdown in his ability to communicate with his trial attorney. Second, he submits that the trial court failed to give proper consideration to counsel's written request to withdraw from the case.
(¶43} As previously noted, trial counsel's pretrial motion to withdraw was based upon his perceived inability to communicate with his client. In this regard, counsel stated that he not only found it difficult to physically locate appellant to schedule meetings, but he could not get appellant to cooperate in the formulation of trial strategy. Similarly, appellant's oral request for a continuance and appointment of new counsel was also based upon an allegation of a lack of communication. Specifically, he asserted that trial counsel had failed to keep him properly informed as to when he was required to appear before the trial court. In addition, appellant asserted that he did not have full confidence in his counsel because counsel failed to understand the significance of a misstatement in a police report.
(¶44} In reviewing a decision on a motion for a change of appointed counsel, an appellate court will only reverse the trial court if there has been an abuse of discretion. State v. Sanders, 11th Dist. Lake No. 2007-L-062, 2008-Ohio-1126, ¶9. In this exact context, an abuse of discretion connotes an attitude on the part of the trial court that is arbitrary, unreasonable or unconscionable. Id.
(¶45} As to the standard to be employed in ruling upon a motion for a change of appointed counsel, this court has stated:
(¶46} "As a general proposition, an indigent criminal defendant does not have a constitutional right to choose the attorney who will represent him at the expense of the state; rather, he is only entitled to competent legal representation. State v. Horn, 6th Dist. No. OT-03-016, 2005 Ohio 5257, at ¶11. As a result, the request of a defendant to discharge his court-appointed counsel will be granted only if he can 'show a breakdown in the attorney-client relationship of such a magnitude as to jeopardize the defendant's right to effective assistance of counsel.' State v. Coleman (1988), 37 Ohio St.3d 286, * * *, paragraph four of the syllabus. See, also, State v. Henness (1997), 79 Ohio St.3d 53, 65, 1997 Ohio 405, * * *
(¶47} "In applying the foregoing basic standard, the courts of this state have recognized three examples of good cause which would warrant the discharge of court-appointed counsel: (1) a conflict of interest; (2) a complete breakdown of communication; and (3) an irreconcilable conflict which could cause an apparent unjust result. Horn, 2005 Ohio 5257, at ¶11, quoting State v. Blankenship (1995), 102 Ohio App.3d 534, 558, * * * In light of the nature of the three examples, it has been further held that the substitution of counsel should be allowed only if extreme circumstances exist. State v. Glasure (1999), 132 Ohio App.3d 227, 239, * * *
(¶48} "In regard to a possible breakdown of the attorney-client relationship due to a lack of communication, the Supreme Court of Ohio has expressly said that the Sixth Amendment right to counsel was not intended to guarantee that a criminal defendant will have a 'rapport' with his attorney. Henness, 70 Ohio St.3d at 65, citing Morris v. Slappy (1983), 461 U.S. 1, * * * Accordingly, the existence of hostility or a personal conflict between the attorney and the defendant does not constitute a total breakdown so long as it does not inhibit the attorney from both preparing and presenting a competent defense. State v. Meridy, 12th Dist. No. CA2003-11-091, 2005 Ohio 241; State v. Mayes, 4th Dist. No. 03CA9, 2004 Ohio 2027. Moreover, the lack of communication must be permanent in nature before a finding of a complete breakdown can be made. State v. Evans, 153 Ohio App.3d 226, 2003 Ohio 3475, at ¶32, * * * Finally, a dispute over the trial tactics or strategy of the attorney is not sufficient to establish the requisite breakdown. Id." State v. Jackson, 11th Dist. Trumbull No. 2004-T-0089, 2006-Ohio-2651, ¶43-45.
(¶49} In this case, appellant initially argued before the trial court that he wanted to discharge his court-appointed counsel because he had sufficient funding to hire his own private attorney. In support of this point, he told the trial court that he had already contacted a specific attorney and had a preliminary discussion about his case. Yet, the trial record shows that, as of the first day of appellant's trial, no new counsel had made an appearance on his behalf. This was despite the fact that appellant was released on bond approximately three months before the date of his trial, and thus had considerable time in which to hire new counsel. In light of this, the trial court could justifiably find that appellant was still indigent and had not been able to accumulate enough funding to hire his own counsel.
(¶50} As to the alleged breakdown of communication between appellant and his court-appointed counsel, appellant told the trial court that, even though he had given his cell phone number to counsel when he was released on bond, counsel had not given him timely notice of upcoming events in this case. According to appellant, this was the reason he had not been present at a mandatory court hearing, leading to the issuance of a warrant for his arrest. In response, trial counsel indicated that, despite the fact that he had tried two distinct phone numbers and had left messages for appellant, it always was extremely difficult to contact his client. Trial counsel also stated that whenever he was able to meet with appellant, his client was argumentative and would not accept any legal advice.
(¶51} In denying appellant's motion for a change of counsel, the trial court noted that, as a condition of appellant's bond, he was specifically required to keep in contact with his trial counsel. Based upon this and the statements of trial counsel, the trial court could justifiably conclude that the lack of communication between the attorney and his client was solely attributable to appellant, and that appellant's actions were simply a means of delaying the beginning of his trial while he was out on bail. To this extent, the statements before the trial court warranted the conclusion that there had actually been no breakdown of communication due to incompatibility, but solely because appellant's desire to obtain a third continuance of his trial.
(¶52} Regarding appellant's assertion that he was uncomfortable with the legal adequacy of trial counsel's representation, appellant could only cite one example of counsel's alleged failure to protect his rights. He stated that, in reviewing a copy of a police report provided to him by trial counsel, he noticed that the report stated that Russell and Shaquetta had described their assailants in the home invasion as both having facial tattoos. Supposedly, when appellant brought to his trial counsel's attention that he did not have any tattoos on his face, counsel admitted that he had not noted the statement in the police report.
(¶53} As to this point, during the trial proceedings, there was no dispute concerning appellant's identity as one of the two men who entered Russell's home on the night in question. Thus, it cannot be said that counsel was unable to discern an important issue in the case. To this extent, appellant's assertions before the trial court were not sufficient to demonstrate that trial counsel had failed to provide adequate representation for appellant, especially in light of the fact that appellant was not assisting in his own defense.
(¶54} As a separate issue, appellant contends that his right to due process was violated when the trial court overruled trial counsel's motion to withdraw without holding an oral hearing on the matter. Even though no hearing was conducted at the time counsel's motion was filed, the trial court held a full hearing on the "representation" issue at the time appellant made his pro se motion at the beginning of his trial. During that hearing, both appellant and counsel were accorded a full opportunity to state the grounds for their respective motions. Accordingly, any initial procedural error by the trial court was not ultimately prejudicial to appellant.
(¶55} Considered as a whole, the record does not indicate the existence of an extreme situation in which appellant and trial counsel were no longer able to communicate as a result of a serious disagreement regarding the type of defense which should be used at trial. Instead, the lack of full communication was due to appellant's choice not to cooperate with his court-appointed counsel. Under such circumstances, the trial court did not abuse its sound discretion in refusing to grant a continuance or not appointing new trial counsel for appellant. Appellant's first and second assignments of error do not have merit.
(¶56} Under his third assignment, appellant maintains the trial court improperly amended the indictment by not instructing the jury on the third count of the indictment. He contends that the lack of reference to the third count rendered the remainder of the jury instructions so confusing that he was denied a fair trial.
(¶57} Prior to trial, the state orally moved to dismiss the third count of the indictment against appellant, and the trial court granted this motion. As a result, the remaining counts in appellant's indictment corresponded to the charges in the co-defendant's indictment. Therefore, there is no merit to appellant's contention that the jury instructions were confusing to the jury, or that the trial court improperly amended the indictment.
(¶58} As part of this assignment, appellant claims that the trial court erred in not instructing the jury on the elements of the underlying offenses in the various charges of aggravated burglary and aggravated robbery. Specifically, he submits that the court was obligated to define the offenses of theft, robbery, and assault. But, in addressing this issue in relation to the crime of burglary, the Supreme Court of Ohio has held that jury instructions covering the underlying offenses of such a crime is not necessary because the underlying offenses are not viewed as actual elements of the crime. State v. Gardner, 118 ...