Court of Appeals of Ohio, Seventh District, Mahoning
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 16 CR 883
Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County
Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting
Defendant-Appellant: Atty. Michael Kivlighan.
Defendant-Appellant Darrell Brown appeals from his conviction
entered in Mahoning County Common Pleas Court for felonious
assault, menacing by stalking, and assault.
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
For the reasons expressed below, all arguments lack merit.
Appellant's conviction is affirmed.
of the Facts and Case
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.
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.
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.
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.
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.
When the police arrived, Appellant fled on foot. Trial Tr.
252. He was apprehended in Youngstown by a Youngstown police
officer. Trial Tr. 254.
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.
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.
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.
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.
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.
Appellant timely appealed his conviction.
Assignment of Error
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."
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
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).
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
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).
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
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 ...