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State v. Linder

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 1, 2018


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-608207-E

          ATTORNEY FOR APPELLANT Russell S. Bensing

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Jillian Eckart Assistant County Prosecutor The Justice Center

          BEFORE: Jones, J., Keough, P.J., and Laster Mays, J.



         {¶1} In this appeal, defendant-appellant Marvin Baxter Linder ("Linder") contends that his counsel was ineffective in representing him on his pro se motion to withdraw his plea. He further contends that the trial court abused its discretion by denying his pro se motion to disqualify counsel. For the reasons that follow, we find that Linder's counsel was not ineffective, and thus we uphold Linder's plea, but remand the case for resentencing with new counsel.

         I. Procedural and Factual Background

         {¶2} In July 2016, Linder, along with five codefendants, was charged in a 21-count indictment. The charges related to drug trafficking as part of a criminal gang. Linder retained counsel to represent him.[1]

         {¶3} Linder, through counsel, engaged in pretrial procedures and practices with the state. During plea negotiations, the state left two offers on the table in regard to sentencing: (1) a recommended prison range of 8 to 12 years, or (2) a recommended prison range of 6 to 15 years.

         {¶4} The case was set for trial, and on the date trial was scheduled to commence, the trial court entered an order allowing Linder time in the courtroom to meet with his mother and father. After the meeting with his parents, Linder agreed to plead guilty. The agreement was that he would plead guilty to 13 counts of the indictment, and the parties would recommend to the court a sentencing range of 6 to 15 years. The trial court accepted the plea, finding that Linder knowingly, intelligently, and voluntarily entered into it. The court set the matter for sentencing.

         {¶5} Three days prior to the sentencing date, Linder filed two pro se motions: one to disqualify his counsel and have new counsel appointed, and the other to withdraw his guilty plea. Counsel first learned of the motions on the day of sentencing, which was when the motions were considered by the trial court, prior to the imposition of sentence.

         Motion to Disqualify Counsel

         {¶6} Linder addressed the court, and told it that his counsel had failed to show Linder most of the discovery he obtained from the state. Linder also complained that he provided counsel with a list of witnesses whom Linder believed would have testified on his behalf at trial, but his counsel failed to contact any of them. Linder further told the court that "they made me take a deal against my will."

         {¶7} The trial court judge told Linder that some of the discovery that the state provides to defense counsel is for counsel only; it is not meant for the client to see. The court further told Linder that

It seems to me [counsel has] done a lot on your behalf. You just told me on the record everything that you know he has. So, he has police reports, he has statements, he has photos. He has all of this evidence, and you are just complaining because you haven't seen it all, but he has it. It's not a situation where you are coming in here and telling he hasn't retrieved anything for you, that there's all this outstanding discovery, that there's statements that exist that you don't have.
I don't see what he hasn't done for you. You just put on the record everything that he's done for you, not to mention all the pretrials that have been conducted as well.

         {¶8} Linder responded that he told counsel he had not been interested in taking a plea, but had wanted to go to trial instead.

         {¶9} Linder's counsel addressed the court. He stated that "[i]t's my duty, and I took an oath to defend people the best way possible and sometimes that means that I have to do things that even they don't understand." Counsel then told the court that even if it did not sentence Linder to maximum, consecutive time, he was still exposed to a significant sentence of at least 20 years because of the serious nature of the charges and the numerous gang and gun specifications.

         {¶10} In response to Linder's complaint about not seeing most of the discovery provided by the state, counsel told the court that he was "walking a fine line of still maintaining privilege, " but that Linder was concerned that, due to his inability to view some of the discovery, he had no way of knowing whether counsel was just "making up" statements. Counsel told the court that he was not going to ...

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