Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Stein

Court of Appeals of Ohio, Third District, Mercer

June 18, 2018

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
SCOTT A. STEIN, DEFENDANT-APPELLANT.

          Appeal from Mercer County Common Pleas Court Trial Court No. 16-CRM-144

          Allen Vender for Appellant

          Matthew K. Fox and Joshua A. Muhlenkamp for Appellee

          OPINION

          SHAW, J.

         {¶1} 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.

         Relevant Facts

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         Procedural History

         {¶9} 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.

         {¶10} 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, 2017.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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.

         {¶14} 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.

         {¶15} 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.

         {¶16} 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.

         {¶17} Stein filed this appeal, asserting the following assignments of error.

         ASSIGNMENT OF ERROR NO. 1

         THE 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.

         ASSIGNMENT OF ERROR NO. 2

         SCOTT 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.

         ASSIGNMENT OF ERROR NO. 3

         SCOTT 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 981.

         ASSIGNMENT OF ERROR NO. 4

         SCOTT 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).

         ASSIGNMENT OR ERROR NO. 5

         THE 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 1256 (1987).

         First Assignment of Error

         {¶18} 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.

         {¶19} 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).

         {¶20} 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.

         Analysis

         1. First Trial Counsel

         {¶21} 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 interviewed.

         {¶22} 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.

         2. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.