Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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.
JOURNAL ENTRY AND OPINION
A. JONES, SR, JUDGE
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
Procedural and Factual Background
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.
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.
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.
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.
to Disqualify Counsel
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."
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.
Linder responded that he told counsel he had not been
interested in taking a plea, but had wanted to go to trial
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
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 ...