Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-614273-C
ATTORNEY FOR APPELLANT Christopher M. Kelley
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Kevin E. Bringman Assistant Prosecuting
BEFORE: McCormack, J., Kilbane, P.J., and Blackmon, J.
JOURNAL ENTRY AND OPINION
Defendant-appellant Diamond Robinson appeals his guilty plea,
claiming he entered it under duress because a codefendant was
unaware that the state's offer was contingent on being
accepted by the four co-offenders and because Robinson lacked
faith in his trial counsel. We affirm.
Robinson pleaded guilty to two counts of burglary in
violation of R.C. 2911.12(A)(2), a single count of grand
theft in violation of R.C. 2913.02(A)(1), and a single count
of receiving stolen property in violation of R.C. 2913.51.
The trial court imposed an aggregate prison sentence of 11
years. All but the receiving stolen property counts were
consecutively imposed to each other.
During the change of plea colloquy, one of the codefendants
sought to plead guilty and was taken aback by the state's
requirement for unanimity among the co-offenders. Before
considering the issue, the trial court began the process of
determining whether all the codefendants would accept the
plea offer. During that inquiry, Robinson requested the
appointment of new counsel. Upon being questioned, Robinson
claimed that his attorney precluded Robinson from taking
possession of the discovery and that his trial counsel had
lied about the existence of a video that demonstrated
Robinson's involvement in the crime. The state
anticipated demonstrating Robinson's complicity in the
burglaries through two video clips, one depicting particular
clothing on Robinson on the morning of one of the burglaries
and another smart-phone video recording depicting a person
wearing that same clothing in the driver's seat of a
stolen 2016 KIA vehicle during the commission of the crime.
Robinson eventually admitted to viewing the combined video,
but then claims there was a video shot from another location
that he had not viewed. The state explained that there was
one video file that contained multiple clips, and
Robinson's counsel indicated that the clips had been
viewed with Robinson. Further, Robinson appeared to have
knowledge of the video clips, bolstering counsel's
Robinson further complains that his counsel refused to
provide Robinson the text messages that Robinson sent
confirming his involvement in the theft of the 2016 KIA
vehicle or his statement to police officers that included an
alleged confession to at least one of the burglaries. Before
the burglary offenses were committed, Robinson stole a 2016
KIA to use during the burglaries. Robinson sent a text
message to a codefendant confirming he had the stolen
vehicle. Robinson claims his attorney discussed the evidence
with him, but did not show him his actual text messages or
his statement to police officers in hard-copy form.
After the state proffered the anticipated evidence and the
trial court rejected Robinson's arguments as a basis for
new counsel, Robinson claimed a belief that his attorney was
not working for him because the evidence presented was
fabricated. The trial court reiterated that Robinson had
waited until the day of trial to voice his concerns, and
essentially under the applicable legal standard, nothing
demonstrated a complete breakdown in the attorney-client
relationship. Robinson decided to plead guilty to the terms
of the state's original offer - the same offer that had
been rejected minutes earlier.
Importantly, Robinson concedes that the subsequent plea
colloquy satisfied the applicable standards under Crim.R. 11,
and that the trial court had not participated in the plea
negotiations as contemplated under State v. Byrd, 63
Ohio St.2d 288, 291, 407 N.E.2d 1384 (1980) ("A trial
judge's participation in the plea bargaining process will
be carefully scrutinized to determine if it affected the
voluntariness of the defendant's plea.").
Robinson's only contention is that he was under duress to
plead guilty because his codefendant was unaware that the
state's plea offer was contingent on acceptance by all
codefendants and the trial court should have appointed new
counsel for trial.
It is well settled that a defendant is not deprived of due
process when a plea bargain is conditioned on acceptance by
all codefendants. State v. Darling, 8th Dist.
Cuyahoga No. 104517, 2017-Ohio-7603, ¶ 24; State v.
Franks, 9th Dist. Summit No. 18767, 1998 Ohio App. LEXIS
4756, 7 (Oct. 7, 1998), citing Nguyen v. United
States, 114 F.3d 699, 704 (8th Cir.1997), and
Gonzales v. United States, 65 F.3d 814, 823 (10th
Cir.1995); see also State v. Hlavsa, 8th Dist.
Cuyahoga No. 77199, 2000 Ohio App. LEXIS 4885, 14 (Oct. 19,
2000), citing State v. Cray, 8th Dist. Cuyahoga No.
51534, 1986 Ohio App. LEXIS 9344, 1 (Dec. 18, 1986). The
decision to offer a plea or proceed to trial "lies
within the discretion of the prosecutor."
Franks. This discretion extends to withholding
offers altogether, as well as making the offer contingent on
acceptance by all codefendants.
In this case, the state exercised its discretion to frame the
plea offer as a package deal. Robinson's argument is
nothing more than an attempted end run around well-settled
law. Further, it is entirely based on his codefendant's
belief. Essentially Robinson complains that the state's
plea agreement forced him to either plead guilty or go to
trial. All defendants are presented such a choice, and
nothing demonstrates that his codefendant's subjective
belief was relevant to or even impacted Robinson's
decision to plead guilty.
In response, Robinson claims to have been presented a
Hobson's choice, plead guilty or proceed to trial with
appointed counsel in whom Robinson lacked faith. We must
reiterate that "'an indigent defendant's right
to counsel does not extend to counsel of the defendant's
choice.'" State v. Patterson, 8th Dist.
Cuyahoga No. 100086, 2014-Ohio ...