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State v. Whittaker

Court of Appeals of Ohio, Third District, Hardin

August 21, 2017

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JAMIE LEA WHITTAKER, DEFENDANT-APPELLANT.

         Appeal from Hardin County Common Pleas Court Trial Court No. CR 20162126

          Todd A. Workman for Appellant

          Jason M. Miller for Appellee

          OPINION

          SHAW, J.

         {¶1} Defendant-appellant, Jamie Whittaker ("Whittaker"), brings this appeal from the December 1, 2016, judgment of the Hardin County Common Pleas Court sentencing Whittaker to an aggregate 60-month prison term after she was convicted of various drug offenses. On appeal, Whittaker argues that the trial court erred by denying her the "counsel of her choice" and by denying her request for a continuance of the trial date.

         Relevant Facts and Procedural History

         {¶2} On August 19, 2016, Whittaker was indicted in a 17-count indictment alleging various drug offenses as follows: three counts of Possession of Dangerous Drugs in violation of R.C. 4729.51(C)(3)/4729.99(H), all felonies of the fifth degree (Counts 1, 13, 15); three counts of Sale of Dangerous Drugs in violation of R.C. 4729.51(C)(2)/4729.99(E)(1), all felonies of the fourth degree (Counts 2, 14, 16); two counts of Possession of Drugs (Suboxone) in violation of R.C. 2925.11(A)/(C)(2)(a), both felonies of the fifth degree (Counts 3, 11); two counts of Trafficking in Suboxone in violation of R.C. 2925.03(A)(2)/(C)(2)(a), both felonies of the fifth degree (Counts 4, 12); three counts of Aggravated Possession of Oxycodone in violation of R.C. 2925.11(A)/(C)(1)(a), all felonies of the fifth degree (Counts 5, 7, 9); three counts of Aggravated Trafficking in Oxycodone in violation of R.C. 2925.03(A)(2)/(C)(1)(a), all felonies of the fourth degree (Counts 6, 8, 10); and one count of Possessing Criminal Tools in violation of R.C. 2923.24(A), a felony of the fifth degree (Count 17). Counts 1, 2, and 13-16 also alleged the penalty enhancement that Whittaker had a prior conviction for Permitting Drug Abuse.[1] Whittaker pled not guilty to the charges.

         {¶3} On October 3, 2016, Whittaker filed a motion to suppress alleging that the affidavit supporting a search warrant to search her room where the drugs were found was not supported by probable cause. A hearing was held on that motion and Whittaker's motion was ultimately overruled.

         {¶4} Whittaker's case proceeded to a jury trial where the evidence indicated that a search of her room was conducted pursuant to a warrant and that the search uncovered Suboxone strips, Promethazine, Oxycodone, and 40 mg Nexium (prescription strength), none of which she had a prescription for. Over $24, 000 in cash was also located in Whittaker's room, and there were indications that the drugs were packaged for sale in Whittaker's room. During a prior search of another residence, law enforcement officers found Whittaker with pills, money, and a "ledger" detailing initials of various people and dollar amounts owed. Evidence was also presented that Whittaker had a prior drug offense.

         {¶5} Based on the evidence presented, the jury convicted Whittaker of all 17 counts against her. Whittaker's case then proceeded to sentencing, where the trial court merged a number of the offenses and the State elected to proceed to sentence Whittaker on Counts 2, 4, 6, 16, and 17. For Count 2, Sale of Dangerous Drugs (Promethazine), Whittaker was sentenced to serve 14 months in prison, for Count 4, Trafficking in Suboxone, Whittaker was ordered to serve 10 months in prison, for Count 6, Aggravated Trafficking of Oxycodone, Whittaker was ordered to serve 14 months in prison, for count 16, Sale of Dangerous Drugs (Nexium 40 mg), Whittaker was ordered to serve 12 months in prison, and for Count 17, Possessing Criminal Tools (Ledger), Whittaker was ordered to serve 10 months in prison. All of the prison terms were ordered to be served consecutive to each other for an aggregate prison term of 60 months. A judgment entry memorializing Whittaker's sentence was filed on December 1, 2016. It is from this judgment that Whittaker appeals, asserting the following assignment of error for our review.

         Assignment of Error

         The trial court erred to the prejudice of [Whittaker] when it deprived [Whittaker] of her Sixth Amendment Right to choose who will represent her.

         {¶6} In her assignment of error, Whittaker argues that she was deprived of her right to choose who would represent her. Specifically, she argues that the trial court essentially denied her ability to choose her own counsel when the trial court denied her request for a continuance made two weeks before trial.

         Standard of Review

         {¶7} Inasmuch as Whittaker's assignment of error pertains to the trial court's denial of her oral request for a continuance, we review the trial court's determination under an abuse of discretion standard. State v. Unger, 67 Ohio St.2d 65 (1981), at syllabus.

         {¶8} As Whittaker's assignment of error relates to the trial court's purported denial of the counsel of Whittaker's choice, "[a]n element of the Sixth Amendment right to counsel is the right of a defendant who does not require appointed counsel to select an attorney of [her] own choosing." State v. Daily, 2d Dist. Montgomery No. 23069, 2009-Ohio-4582, ¶ 10, citing United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557 (2006). The Sixth Amendment right is violated when the defendant is erroneously prevented from being represented by the lawyer she wants, regardless of the quality of the representation she receives. Id. citing Gonzales-Lopez. A trial court's erroneous deprivation of a criminal defendant's Sixth Amendment right to counsel of her own choosing "entitles defendant to a reversal of [her] conviction because the error is 'structural.'" Daily at ¶ 10, quoting Gonzalez-Lopez.

         Whittaker's Request for New Counsel

         {¶9} In this case, Whittaker argues that the trial court essentially denied her request for the counsel of her choice at a pre-trial hearing that was held on November 1, 2016. At that pretrial hearing, which was approximately two weeks before Whittaker's scheduled trial date, the trial court had the parties put the proposed plea negotiations on the record. The plea negotiations were noted on the record, and then the parties went off the record so that Whittaker could speak further with her attorney regarding her case.

         {¶10} When the hearing resumed, Whittaker's counsel indicated that Whittaker still did not wish to accept the plea offer, and that Whittaker had indicated to him that she wanted to hire a new attorney. Whittaker expressed her desire for a continuance of her ...


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