from Mercer County Common Pleas Court Trial Court No.
Vender for Appellant
Matthew K. Fox and Joshua A. Muhlenkamp for Appellee
Defendant-Appellant, Scott A. Stein, appeals the October 11,
2017 judgment of the Mercer County Court of Common Pleas
journalizing his conviction by a jury on one count of
aggravated possession of drugs, with a major drug offender
specification; on three counts of having a weapon under
disability; and on three counts of receiving stolen property.
On appeal, Stein claims that he was denied effective
assistance of trial counsel.
On November 9, 2016, Chief of Police Glass of the Village of
Botkins received a phone call from an officer at the
Wapakoneta Police Department regarding a woman named Megan
Donnelly, for whom there was an active warrant for theft, and
requested his assistance in obtaining her. Chief Glass was
informed that Donnelly was en route to a local motel, driving
a white Ford Expedition with California license plates, and
that she was suspected to be hauling a large amount of
methamphetamine in the vehicle. Upon arriving at the motel,
Chief Glass encountered Donnelly unloading the vehicle in
question. He advised Donnelly that there was an outstanding
warrant for her arrest and detained her on the warrant. He
asked to whom the vehicle belonged. Donnelly indicated that
Appellant Stein had leased the car through a rental agency. A
subsequent search of the vehicle revealed a rental contract,
which confirmed that Stein had leased the vehicle from a
location in Nevada.
Chief Glass arranged for another officer to transport
Donnelly to the Wapakoneta Police Department. He was
subsequently alerted by the motel management upon cleaning
the room of suspicious items in the nightstand. Chief Glass
examined the items and, based upon his experience in law
enforcement, he suspected them to be methamphetamine and
related drug paraphernalia. He performed a field test, which
yielded a positive result for methamphetamine and weighed the
substance at 44 grams.
Upon further investigation, it was discovered that Donnelly
first became acquainted with Stein as her drug dealer in the
Summer of 2016. At one point she had traded at least four
firearms that she had stolen from Joseph Brown, an individual
with whom she was living, for drugs from Stein. Donnelly
eventually moved to a motel after Brown asked her to leave.
Around early November of 2016, Stein bought Donnelly a plane
ticket to travel with him to Nevada, where he obtained a
large amount of methamphetamines contained in black bag with
white lettering. Stein and Donnelly drove back to Ohio from
Nevada in the Ford Expedition rental car with the drugs
hidden in back quarter panels. Stein gave Donnelly a portion
of the methamphetamine for her assistance. Upon arriving in
Celina, Stein directed Donnelly, who was driving at the time,
to a residence where he had her drop him off around midnight
on November 9, 2016. He advised Donnelly to change motel
locations to evade law enforcement and gave her money and the
use of the rental car to do so. Donnelly arrived at the motel
in Botkins shortly thereafter.
At the time, the Grand Lake Task Force already had an open
investigation on Stein, and his residence was under
surveillance via a pole camera. Investigators Justin Chisholm
and Lance Crum were contacted on November 9, 2016 by
Wapakoneta law enforcement informing them that Donnelly was
in custody and had a large quantity of methamphetamine in her
possession. Investigators Chisholm and Crum spoke to
Donnelly, who relayed the events of the prior days'
travel out of state. The investigators decided to apply for a
search warrant for Stein's residence in Celina. Due to
the fact that another criminal case was pending in Logan
County implicating Stein, which involved felonious assault
with a firearm and having a weapon under disability charges,
the investigators decided to use the Auglaize County Special
Response Team and asked for a no knock warrant.
Law enforcement executed the search warrant around 12:30 a.m.
on November 10, 2016. They located Stein and his girlfriend,
Kristy Schulte, in the basement and two children in the
upstairs bedrooms. Stein was taken into custody. Ms. Schulte
confirmed that Stein had been away for a period of time and
had returned around midnight the night before. Investigator
Chisholm searched the basement and discovered a vial of white
powder, which tested positive for cocaine according to an
initial field test, but no other controlled substances were
found. Law enforcement had already ascertained from viewing
the surveillance from the pole camera that Stein had been
driving a Toyota Camry that day. Information was obtained
that the Toyota Camry was located at Schulte's apartment
across town. Schulte gave consent to search the apartment.
There, law enforcement found a locked safe and a Beretta
12-gauge shotgun in the master bedroom. Law enforcement had
also located the Toyota Camry. A K-9 unit alerted and
indicated to the safe and the Toyota Camry. The vehicle was
impounded and the safe was placed into evidence until a
search warrant could be obtained. After the warrant was
executed, a subsequent search revealed a Colt Lawman 357
revolver and an empty plastic container in the safe. In
addition, a black bag with white lettering containing a large
quantity of suspected methamphetamine, a Remington 1100
12-gauge shotgun, and a Mossberg 510 20-gauge shotgun were
found in the trunk of the Toyota Camry. A field test of the
substance tested positive for methamphetamine, and was later
confirmed to be 1, 487 grams of methamphetamine. The firearms
were later identified by Joseph Brown as the ones stolen from
his home when Donnelly was living with him.
On November 17, 2016, the Mercer County Grand Jury returned a
ten-count indictment against Stein alleging that he committed
Count One: aggravated possession of drugs, to wit:
methamphetamine, in violation of R.C. 2925.11(A),
2925.11(C)(1)(e), a felony of the first degree, with a major
drug offender specification and a forfeiture of an automobile
in a drug case specification attached; Count Two: possession
of cocaine, in violation of R.C. 2925.11(A),
2925.11(C)(4)(a), a felony of the fifth degree; Counts Three,
Four, Five, and Six: having a weapon under disability, in
violation of R.C. 2923.13(A)(2), 2923.13(B), each a felony of
the third degree, and each with a weapon forfeiture
specification; Counts Seven, Eight, Nine, and Ten, receiving
stolen property, in violation of R.C. 2913.51(A), 2913.51(C),
each a felony of the fourth degree.
Stein retained counsel who filed a notice of representation
with the trial court and a demand for discovery on November
22, 2016. Stein appeared for arraignment and entered a plea
of not guilty to the charges listed in the indictment. The
case was scheduled for a jury trial to take place on March 1,
On February 21, 2017, Stein's counsel filed a motion to
withdraw from representation, which the trial court granted
and vacated the scheduled trial dates. The trial court
subsequently appointed second trial counsel to represent
Stein at State expense. The trial was scheduled to take place
on May 24, 2017.
On May 24, 2017, Stein filed a waiver of his speedy trial
time rights and was granted a continuance of the trial until
September 6, 2017.
On June 12, 2017, Stein's appointed counsel filed seven
pre-trial motions, including multiple motions to suppress
evidence and a motion to dismiss the charges based upon
several constitutional grounds. Six of these motions were
overruled by the trial court and one was withdrawn by
appointed counsel prior to trial.
On September 6, 2017, the prosecution entered a nolle
prosequi on Count Two, fifth degree possession of cocaine,
and the weapon forfeiture specifications on Counts Three,
Four, Five, and Six.
On September 6, 7, and 8, 2017, the case proceeded to a jury
trial. Several witnesses testified, including Megan Donnelly,
Joseph Brown, the owner of the stolen firearms, as well as
law enforcement involved in the investigation and the
forensic scientist who tested and confirmed the identity and
the amount of the substance found in the Toyota Camry as 1,
487 grams of methamphetamine. The jury found Stein guilty on
one count of aggravated possession of methamphetamine, a
first degree felony, along with the major drug offender and
vehicle forfeiture specifications, three counts of third
degree felony offenses of having weapons under disability,
and three counts of fourth degree felony offenses of
receiving stolen property. The jury found Stein not guilty of
one count of having a weapon under disability and of one
count of receiving stolen property.
On October 11, 2017, the trial court issued its sentencing
entry imposing an aggregate term of fourteen years in prison,
to run consecutive to Stein's six-year prison term
imposed in a separate case arising out of Logan County, for a
total of twenty years.
Stein filed this appeal, asserting the following assignments
OF ERROR NO. 1
TRIAL COURT ABUSED ITS DISCRETION WHEN IT DID NOT PROVIDE A
SUBSTITUTION OF APPOINTED COUNSEL AFTER STEIN DEMONSTRATED
THAT A BREAKDOWN IN THE ATTORNEY-CLIENT RELATIONSHIP
OCCURRED. SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION; ARTICLE I, SECTIONS 10 AND 16 OF THE
OHIO CONSTITUTION; STATE v. COLEMAN, 37 OHIO St.3d
286, 292, 525 N.E.2d 792 (1988); SEPTEMBER 5, 2017, TR.
13-14; VOLUME I, TR.12.
OF ERROR NO. 2
STEIN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS
ATTORNEY REPEATEDLY FAILED TO OBJECT TO INADMISSIBLE, AND
PREJUDICIAL HEARSAY. SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION; ARTICLE I, SECTIONS 10 AND 16 OF
THE OHIO CONSTITUTION; STRICKLAND v. WASHINGTON, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
STATE v. BRADLEY, 42 OHIO St.3d 136, 538 N.E.2d 373
(1989); EVID.R. 802; VOLUME II, TR. 271, 393, 395-96.
OF ERROR NO. 3
STEIN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS
ATTORNEY FAILED TO PREVENT THE JURY FROM LEARNING ABOUT OTHER
CRIMES FOR WHICH HE WAS CHARGED. SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION; ARTICLE I,
SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION; STRICKLAND
v. WASHINGTON, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); STATE V. BRADLEY, 42 OHIO St.3d
136, 538 N.E.2d 373 (1989); EVID.R. 403(A); STATE v.
CREECH, 150 OHIO St.3d 540, 2016-OHIO-8440, 84 N.E.2d
OF ERROR NO. 4
STEIN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS
ATTORNEY WITHDREW A MERITORIOUS MOTION REQUESTING THAT THE
EVIDENCE FOUND IN THE TOYOTA CAMRY BE SUPPRESSED. FOURTH,
SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION; STRICKLAND v. WASHINGTON, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); STATE v.
BRADLEY, 42 OHIO St.3d 136, 538 N.E.2d 373 (1989);
EVID.R. 404(B); MAPP V. OHIO, 367 U.S. 643, 81 S.Ct.
1684, 6 L.Ed.2d 1081 (1961); STATE v. HILL, 75 OHIO
St.3d 195, 203, 661 N.E.2d 1068 (1996).
OR ERROR NO. 5
CUMULATIVE EFFECTS OF STEIN'S FIRST FOUR ASSIGNMENTS OF
ERROR DENIED HIM A FAIR TRIAL. STATE v. IRWIN, 7TH
DIST. COLUMBIANA NO. 07 CO 22, 2009-OHIO-5271, 922 N.E.2d
981; STATE v. DEMARCO, 31 OHIO St.3d 191, 509 N.E.2d
Assignment of Error
In his first assignment of error, Stein argues that he was
denied his right to counsel because the trial court did not
grant his request for substitute counsel. Specifically, he
contends there was a complete breakdown in communication
between himself and appointed counsel and thus, substitute
counsel was warranted.
The decision whether to remove court-appointed counsel and
allow substitution of new counsel is within 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 (2001). 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 (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, ¶ 30 (7th Dist), citing
State v. Murphy, 91 Ohio St.3d 516, 523 (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, ¶ 12
(1st Dist.). 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 (1997), quoting State
v. Coleman, 37 OHIO St.3d 286 (1988), paragraph four of
the syllabus. That said, the right to counsel must be
balanced against the trial 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. Lawson, 8th Dist. Cuyahoga No. 97018,
2012-Ohio-1050, ¶ 24.
First Trial Counsel
The record reflects that Stein had initially retained counsel
to represent him. Retained trial counsel filed a notice of
representation on November 22, 2016. A jury trial was set to
commence on March 1, 2017. At a February 21, 2017 pretrial,
Stein appeared with his retained trial counsel, who entered a
motion to withdraw from Stein's representation on the
grounds that Stein had failed to fulfill his financial
obligation to him and Stein's refusal to permit retained
counsel to consent to a continuance on his behalf. Retained
counsel explained that a continuance was strategically
desirable due to the serious nature of the charges, which
included the major drug offender specification attached to
Count One, and retained counsel's concern that two
defense witnesses were still unable to be located and
A transcript of the pre-trial proceeding reveals Stein was
argumentative and questioned the veracity of retained
counsel's statements regarding the inability to locate
defense witnesses and their financial agreement. It is also
apparent that Stein misunderstood the calculation of the days
which counted toward his speedy trial rights. Stein was
adamant that his speedy trial rights had been violated
because he had spent 90 days incarcerated while awaiting
trial. Days before this pre-trial, retained counsel filed a
motion to dismiss on speedy trial grounds, at Stein's
behest, which was denied by the trial court because the
majority of the days were allocated to Stein's pending
case in Logan County. Upon Stein's admission that he had
no further payment for retained counsel, the trial court
granted the motion to withdraw and had Stein complete an
affidavit of indigency so that counsel at State expense could
be appointed, despite Stein's continued attempts to
interrupt and argue with the trial court during the hearing.