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State v. Brown

Court of Appeals of Ohio, Seventh District, Mahoning

January 22, 2018


         Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 16 CR 883

          For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney.

          For Defendant-Appellant: Atty. Michael Kivlighan.


          ROBB, P.J.

         {¶1} Defendant-Appellant Darrell Brown appeals from his conviction entered in Mahoning County Common Pleas Court for felonious assault, menacing by stalking, and assault.

         {¶2} Three issues are raised in this appeal. First, Appellant argues he was denied effective assistance of counsel when the trial court denied his request for appointment of new counsel. He argues appointment of new counsel was required because there was a complete breakdown in communication with his appointed counsel. Alternatively, he requested a continuance to prepare for trial. The trial court denied this request also. Appellant contends the trial court's denial of the motion was an abuse of discretion. Second, Appellant asserts the conviction for menacing by stalking is not supported by sufficient evidence. Lastly, he argues the imposition of a consecutive sentence is contrary to law because the record does not support the trial court's findings.

         {¶3} For the reasons expressed below, all arguments lack merit. Appellant's conviction is affirmed.

         Statement of the Facts and Case

         {¶4} At approximately 12:30 a.m. on July 31, 2016 an argument occurred between Jeronica Wolfe and Appellant at Jeronica's house located 3948 Sunset Boulevard in Boardman Township, Ohio. Trial Tr. 180-181. The argument was about the use of a car. Trial Tr. 181-184. Jeronica and Appellant had known each other for ten years and at some point were in a relationship. Trial Tr. 179-180. Celeste Wolfe, Jericona's adult daughter who resided with her, was upstairs getting ready to go out while the argument was occurring. Trial Tr. 208. Celeste came downstairs to tell Appellant to leave the residence. Trial Tr. 208. He allegedly attacked her while she was coming down the stairs and punched her multiple times and then ran out of the house with the keys to Celeste's car. Trial Tr. 181-182, 208. Appellant admitted to hitting Celeste four to eight times, but claims Celeste swung at him first and initiated the fight. Trial Tr. 273. The altercation resulted in Celeste sustaining injuries; she lost consciousness, her nose was broken, and she had a facial laceration. Trial Tr. 213, 221-222.

         {¶5} After regaining consciousness, Celeste, Jeronica, and a few other people went in two separate cars to look for Appellant to get Celeste's keys. Trial Tr. 185, 209. They drove to Judson Avenue and found Appellant. Trial Tr. 185, 209. Appellant had a gun on his person, ran in the middle of the street, and yelled he would kill them. Trial Tr. 186, 209. Appellant admitted he had a gun in the middle of the street and used it to get them to leave. Trial Tr. 276. Celeste and Jeronica immediately left and returned to the residence on Sunset Boulevard. Trial Tr. 186, 209.

         {¶6} While Jeronica and Celeste were looking for Appellant, Boardman police officers arrived at the residence on Sunset Boulevard. Trial Tr. 244-245. The officers had been dispatched to the house after receiving an "open ended" 911 call with screaming and fighting heard in the background. Trial Tr. 244. When the officers arrived at the residence the front door was ajar and no one was home. Trial Tr. 244. Jeronica and Celeste arrived at the house after the officers determined the house was clear. Trial Tr. 245.

         {¶7} Photographs were taken of Celeste and the stairs, and statements were taken. Celeste was then taken to the hospital in an ambulance. Trial Tr. 187. The emergency room doctor treated her for a closed head injury, nasal bone fracture, and facial laceration. Trial Tr. 236.

         {¶8} At around 8:30 a.m. on July 31, Appellant returned to the Sunset Boulevard residence. Trial Tr. 188, 226-227. Jeronica's other adult daughter, Krystal, was sleeping on the living room floor and was awakened to the sound of Appellant saying "yo-yo-yo" at the window. Trial Tr. 226. Jeronica and Krystal testified they called the police. Trial Tr. 189, 227. Appellant used a key and tried to push his way into the house, but Krystal pushed back and tried to keep him out of the house. Trial Tr. 189-190, 227. An altercation ensued between Appellant and Krystal in the driveway and backyard. Trial Tr. 190, 227. Appellant admitted to hitting and kicking Krystal in the face during this altercation. Trial Tr. 279.

         {¶9} When the police arrived, Appellant fled on foot. Trial Tr. 252. He was apprehended in Youngstown by a Youngstown police officer. Trial Tr. 254.

         {¶10} Complaints were filed against Appellant in Mahoning County Court Number 2, Boardman, for resisting arrest, burglary, assault, and obstructing official business. 8/2/16 Complaint. At the initial appearance, Appellant was held in direct contempt for statements he made to the court while walking away from the bench. 8/2/16 J.E. A preliminary hearing was held on August 9, 2016 and Appellant was bound over to the Mahoning County Common Pleas Court. 8/9/16 J.E.

         {¶11} Thereafter, Appellant was indicted for felonious assault in violation of R.C. 2903.11(A)(1)(D), a second-degree felony; menacing by stalking in violation of R.C. 2903.211(A)(1), a fourth-degree felony; burglary in violation of R.C. 2911.12(A)(2)(D), a second-degree felony; and assault in violation of R.C. 2903.13(A), a first-degree misdemeanor. 9/1/16 Indictment.

         {¶12} Defense counsel made requests for discovery, moved for Appellant to wear civilian clothes at trial, and filed a motion in limine. 9/14/16 and 9/23/16 Motions. A pretrial was held on September 21, 2016, the Wednesday before trial. At that pretrial, Appellant asked for new counsel. 9/27/16 J.E. The trial court denied the motion. 9/27/16 J.E. On the day of trial, Appellant through counsel renewed the motion for new counsel or, in the alternative, moved for a continuance. 10/5/16 J.E; Trial Tr. 7-20. The trial court denied the requests. 10/5/16 J.E; Trial Tr. 7-20.

         {¶13} The case proceeded to trial. The state's case consisted of testimony from the victims Jeronica, Celeste, and Krystal; two officers from the Boardman Police Department; and the Emergency Room Doctor. Appellant testified on his own behalf. The jury found Appellant guilty of felonious assault, menacing by stalking, and assault. The jury found him not guilty of burglary. 10/5/16 J.E.

         {¶14} Appellant was sentenced to an aggregate term of nine and a half years. 10/7/16 J.E.; Sentencing Tr. 15. He received eight years for felonious assault, eighteen months for menacing by stalking, and six months for assault. 10/7/16 J.E.; Sentencing Tr. 15-16. The six month assault sentence was ordered to be served concurrently with the other sentences. 10/7/16 J.E.; Sentencing Tr. 16. The felonious assault and menacing by stalking sentences were ordered to be served consecutively. 10/7/16 J.E.; Sentencing Tr.16. The trial court made consecutive sentence findings at the sentencing hearing and in the judgment entry. 10/7/16 J.E.; Sentencing Tr. 16.

         {¶15} Appellant timely appealed his conviction.

         First Assignment of Error

         "Darrell Brown was denied his right to the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution."

         {¶16} Appellant asserts he was denied his right to effective assistance of counsel because the trial court did not grant his request for substitute counsel. He contends there was a complete breakdown in communication between himself and his counsel and thus, substitute counsel was warranted. Alternatively, he argues the trial court abused its discretion when it denied his motion for a continuance. Appellant argues since the trial court denied his request for alternative counsel, it should have granted his request for a continuance so that he and his attorney could prepare for trial.

         {¶17} The decision whether to remove court-appointed counsel and allow substitution of new counsel is within to the sound discretion of the trial court; its decision will not be reversed on appeal absent an abuse of discretion. State v. Murphy, 91 Ohio St.3d 516, 523, 747 N.E.2d 765 (2001); State v. Brown, 7th Dist. No. 12 MA 198, 2014-Ohio-4420, ¶ 7. An "abuse of discretion" implies an arbitrary, unreasonable, or unconscionable attitude on the part of the court. State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

         {¶18} An indigent defendant does not have a right to choose a particular attorney; rather, such a defendant "has the right to professionally competent, effective representation." State v. Evans, 153 Ohio App.3d 226, 2003-Ohio-3475, 792 N.E.2d 757, ¶ 30 (7th Dist.), citing State v. Murphy, 91 Ohio St.3d 516, 523, 747 N.E.2d 765 (2001). "Competent representation does not include the right to develop and share a 'meaningful attorney-client relationship' with one's attorney." State v. Gordon, 149 Ohio App.3d 237, 2002-Ohio-2761, 776 N.E.2d 1135, ¶ 12 (1st Dist.).

         {¶19} In order for the court to discharge a court-appointed attorney, "the defendant must show a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant's right to effective assistance of counsel." State v. Henness, 79 Ohio St.3d 53, 65, 679 N.E.2d 686 (1997), quoting State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988), paragraph four of the syllabus. That said, the right to counsel must be balanced against the court's authority to control its docket, as well as its awareness that a "demand for counsel may be utilized as a way to delay the proceedings or trifle with the court." United States v. Krzyske, 836 F.2d 1013, 1017 (C.A.6 1988); see, also, State v. Murphy, 91 Ohio St.3d 516, 523, 747 N.E.2d 765 (2001).

         {¶20} On the day of trial, September 26, 2016, counsel for Appellant renewed Appellant's motion for appointment of new counsel. The original motion had been made one week prior to trial at the September 21, 2016 pretrial hearing. The pretrial hearing was not transcribed for our review. However, on the day of trial the events that transpired at the September 21, 2016 pretrial were discussed in conjunction with the renewed request to appoint new counsel. Trial Tr. 8-18. The basis for the original motion and the renewed motion was a complete breakdown of communication between trial counsel and Appellant. Trial Tr. 8-9. Trial counsel indicated that since the indictment Appellant had refused to communicate with counsel. Trial Tr. 9. The trial court overruled the motion because Appellant was causing counsel to be ineffective:

He's entitled to the effective assistance of counsel but he cannot cause the ineffectiveness by his refusal to cooperate. He can't make you ineffective and then argue that counsel is ineffective. So his refusal to ...

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