from Hardin County Common Pleas Court Trial Court No. CR
A. Workman for Appellant
M. Miller for Appellee
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.
Facts and Procedural History
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. Whittaker pled not guilty to the charges.
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.
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
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.
trial court erred to the prejudice of [Whittaker] when it
deprived [Whittaker] of her Sixth Amendment Right to choose
who will represent her.
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
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.
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,
Request for New Counsel
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.
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 ...