[Cite as State v. Breneman,

.]

IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2010 CA 18

v. : T.C. NO. 10CR22

JAMES DOUGLAS BRENEMAN : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 8th day of June , 2012.

..........

NICK A. SELVAGGIO, Atty. Reg. No. 0055607, Prosecuting Attorney, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

MICHAEL R. PENTECOST, Atty. Reg. No. 0036803, Public Defender’s Office, 117 S. Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} Defendant-appellant James D. Breneman appeals his conviction and 2

sentence for one count of possession of crack cocaine (more than five grams but less than ten

grams), in violation of R.C. 2925.11(A)(C)(4)(c), a felony of the third degree. Breneman

filed a timely notice of appeal with this Court on June 28, 2010.

{¶ 2} The incident which forms the basis for the instant appeal occurred in the late

afternoon on December 26, 2009, when Breneman called 911 and reported that he had been

robbed at gunpoint by a man named Bryan Adams on Main Street in Urbana, Ohio. When

the 911 operator called him back after the line was disconnected, Breneman informed the

operator that the situation had changed and he was no longer in danger.

{¶ 3} Thereafter, Officer Robbie Evans and Sergeant Edward Burkhammer of the

Urbana Police Department responded to the scene of the alleged robbery. Once there, the

officers observed Adams walking down the middle of a side street just off of South Main

Street. The officers also observed Breneman exit an alleyway and join Adams in walking

down the middle of the street.

{¶ 4} Sgt. Burkhammer drew his weapon and ordered the two men to the ground

so that he could perform a search in order to determine whether either man was armed.

While searching Breneman, Sgt. Burkhammer discovered a baggie containing over seven

grams of crack cocaine and approximately $771.00 in cash. Breneman was also found to

have a cell phone and an address book in his possession. During the subsequent search of

the alley from which Breneman had emerged immediately before he joined Adams, the

police recovered a glass crack pipe and a digital scale.

{¶ 5} On February 4, 2010, Breneman was indicted for one count of possession of

crack cocaine, trafficking in crack cocaine, and possession of criminal tools. The trial court 3

determined that Breneman was indigent and appointed counsel to represent him. Appointed

counsel, Brandon Cogswell, filed a motion to suppress on March 30, 2010. On April 14,

2010, the date of the suppression hearing, Attorney William Settina appeared before the trial

court and sought to enter an appearance on behalf of Breneman who stated that he was

dissatisfied with the representation of Attorney Cogswell. Breneman also stated that he

privately retained Attorney Settina as soon as he was able to gather the necessary money.

Attorney Settina orally moved the trial court for a sixty-day continuance of the suppression

hearing and the trial date so that he could have adequate time to prepare Breneman’s

defense.

{¶ 6} The trial court denied Attorney Settina’s motion for a continuance and

refused to allow him to appear on behalf of Breneman. As a basis for its decision, the trial

court cited Attorney Settina’s inability to move forward with the suppression hearing, as

well as the trial set for April 29, 2010. The trial court ordered Attorney Cogswell to move

forward with Breneman’s defense at the suppression hearing and the subsequent trial. We

note that immediately after denying Attorney Settina’s request for a continuance to prepare

his case, the trial court granted Attorney Cogswell’s request for a continuance of the

suppression hearing until April 21, 2010. The trial court overruled Breneman’s motion to

suppress in a judgment entry filed on April 28, 2010.

{¶ 7} Two days before the trial on April 27, 2010, Breneman filed a pro se motion

to terminate Attorney Cogswell as his defense counsel. The trial court overruled

Breneman’s motion prior to jury selection on the date of the trial. After a two-day jury trial,

Breneman was found guilty of possession of crack cocaine, but acquitted of the remaining 4

counts. At the sentencing hearing held on June 10, 2010, the trial court sentenced

Breneman to two years in prison. It is from this judgment that Breneman now appeals.

{¶ 8} Breneman’s first assignment of error is as follows:

{¶ 9} “THE TRIAL COURT DENIED APPELLANT HIS SIXTH AMENDMENT

RIGHT TO COUNSEL BY REFUSING TO ALLOW APPELLANT’S RETAINED

COUNSEL TO ENTER AN APPEARANCE AND FORCING APPELLANT TO GO TO

TRIAL WITH COUNSEL WHO’S SERVICES HE HAD REPEATEDLY TRIED TO

TERMINATE.”

{¶ 10} In his first assignment, Breneman contends that the trial court abused its

discretion when it denied his newly retained counsel’s request to enter an appearance and

for a continuance so that he could prepare a defense to the charges. Specifically, Breneman

argues that because his request to substitute an attorney of his own choosing for appointed

counsel was made prior to trial and because no continuances had previously been requested

by the defense, the trial court should have permitted retained counsel to replace appointed

counsel, as well as provided new counsel with the opportunity to prepare an adequate

defense on Breneman’s behalf.

{¶ 11} The Sixth Amendment provides that “[i]n all criminal prosecutions, the

accused shall enjoy the right *** to have the Assistance of Counsel for his defense.” U.S.

Constitution Amend. VI. “[W]hile the right to select and be represented by one’s preferred

attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is

to guarantee an effective advocate for each criminal defendant rather than to insure that a

defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v. United 5

States,

,

,

(1988).

Accordingly, while the right to counsel of one’s choice is embedded in our jurisprudence, it

is not without exceptions.

A defendant, therefore, has only a presumptive right to

employ his own chosen counsel. State v. Keenan,

,

(1998).

{¶ 12} Reviewing the “deprivation of a criminal defendant’s choice of counsel,” the

U.S. Supreme Court stated as follows:

We have recognized a trial court’s wide latitude in balancing

the right to counsel of choice against the needs of fairness, and

against the demands of its calendar. The court has, moreover,

an “independent interest in ensuring that criminal trials are

conducted within the ethical standards of the profession and

that legal proceedings appear fair to all who observe them.”

{¶ 13} United States v. Gonzalez-Lopez,

,

,

(2006). Additionally, “a court must beware that a demand for counsel may be

utilized as a way to delay proceedings or trifle with the court.” State v. Harmon, 4th Dist.

Pickaway No. 04CA22,

, quoting U.S. v. Kryzyske,

(6th Cir. 1988).

{¶ 14} Factors to consider in deciding whether a trial court erred in denying a

defendant’s motion to substitute counsel include “the timeliness of the motion and whether

there was a conflict between the attorney and the client that was so great that it resulted in a

total lack of communication preventing an adequate defense.” State v. Jones,

6

335, 342,

,

, quoting U.S. v. Jennings,

(6th

Cir. 1996). “In addition, courts should ‘balanc[e] *** the accused’s right to counsel of his

choice and the public’s interest in the prompt and efficient administration of justice.’” Id. at

342-343. The decision of whether to grant a defendant’s motion for substitution of counsel

is confided to the sound discretion of the trial court. Wheat,

,

,

.

{¶ 15} Similarly, Breneman acknowledges that the grant or denial of a continuance

is a matter that is entrusted to the discretion of the trial court. State v. Goode, 2d Dist.

Montgomery No. 19273,

, citing State v. Unger,

,

(1981). In evaluating a motion for a continuance, a trial court should consider

the following: 1) the length of the delay requested; 2) whether other continuances have been

requested or received; 3) the inconvenience to the litigants, witnesses, opposing counsel, and

the court; 4) whether the requested delay is for legitimate reasons or whether it is dilatory,

purposeful, or contrived; 5) whether defendant contributed to the circumstances which give

rise to the request for a continuance; and 6) other relevant factors, depending on the unique

facts of each case.

.

{¶ 16} As the Supreme Court of Ohio has determined:

“Abuse of discretion” has been defined as an attitude that is

unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is

to be expected that most instances of abuse of discretion will result in

decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary. 7

A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were

it deciding the issue de novo, would not have found that reasoning process to

be persuasive, perhaps in view of countervailing reasoning processes that

would support a contrary result. AAAA Enterprises, Inc. v. River Place

Community Redevelopment,

,

(1990).

{¶ 17} In light of the specific circumstances involved in the instant matter, we find

that the trial court abused its discretion when it refused to grant Breneman’s motion for

substitution of counsel and ordered him to proceed with appointed counsel with whom he

had expressed a great deal of dissatisfaction. Initially, we note that Breneman’s motion for

substitution of counsel was made in a timely fashion, not on the day of trial. We have

previously found a suggestion of bad faith where motions to substitute counsel are made on

the day of trial, particularly when the trial date has been set for some time. State v. McCoy,

,

,

(2d Dist.). The indictment

against Breneman was originally filed on February 4, 2010. Attorney Settina appeared

before the trial court and attempted to enter an appearance on behalf of Breneman on April

14, 2010, prior to the hearing regarding Breneman’s motion to suppress. Breneman’s trial

was scheduled to occur on April 29, 2010. Moreover, the record establishes that Attorney

Settina contacted the trial court prior to April 14, 2010, and advised the court of his intention

to enter a notice of appearance on behalf of Breneman.

{¶ 18} Breneman stated that he was unable to retain Attorney Settina at an earlier

date because he simply did not have the money to hire a private attorney when he was 8

indicted. Attorney Settina indicated to the trial court that he had previously represented

Breneman, and noted that there was an apparent breakdown in Breneman’s relationship with

his appointed counsel, Attorney Cogswell. For his part, Breneman expressed confidence in

Attorney Settina’s ability to represent him. Attorney Cogswell did not oppose the motion

for substitution and orally moved to withdraw as defense counsel. We find that Breneman’s

motion to substitute counsel was not untimely, nor was it made in an effort to delay the

proceedings.

{¶ 19} Attorney Settina indicated to the trial court that if he was allowed to

represent Breneman, he would request a continuance of approximately sixty days in which to

familiarize himself with the facts of the case and prepare for trial. It is important to note

that no prior continuances had been requested by the defense, nor was it unreasonable for

Attorney Settina to request a continuance in order to mount an adequate defense. We also

note that the State did not oppose Attorney Settina’s request for a continuance, only stating

that it was prepared to go forward with the motion to suppress that day, as well as the jury

trial scheduled for April 29, 2010.

{¶ 20} The trial court’s only apparent concern, however, was preserving the original

trial schedule, and for that reason it denied the motion for substitution. Specifically, the

trial court stated the following:

The Court’s reviewed the Court’s calendar up through mid-July. The

Court finds that the opportunity for a rescheduled trial would be very difficult

to guarantee during the time period. Court finds that the State is prepared

with witnesses. Court finds it would be an adverse effect on the State’s 9

witnesses to have a continuance. Court does not currently know the vacation

schedule of any of the officers or the witnesses. Court knows we’ve run into

vacation problems with the Urbana Police Division before in the

summertime. *** There’s no showing that defense witnesses are unavailable

for the present trial. Current trial counsel is prepared to proceed. Court

finds that the feeling of comfortability [sic] in new counsel is not a sufficient

basis for a change of counsel at this stage.

Case was filed February 4, 2010. Attorney Cogswell has been

involved by court appointment since February of 2010. There is no showing

that current defense counsel has not properly performed duties of counsel.

So the request of Attorney Settina to appear on the behalf of the

defendant is not granted. It’s because defense counsel is not able to be

properly prepared to represent the defendant based on the current trial

schedule. ***.

{¶ 21} Simply put, the record does not support the findings of the trial court.

Initially, we note that no evidence was adduced which established that there “would be an

adverse effect on the State’s witnesses” if a continuance was granted. Other than asking the

State the number of witnesses it expected at trial and whether those witnesses had been

advised of the trial date, the court made no inquiries regarding any “adverse effect” a

continuance would have on the State’s witnesses. Additionally, the trial court’s speculation

with respect to the vacation schedules of the officers of the Urbana Police Department was

not a proper basis upon which to deny the motion for substitution and request for 10

continuance.

{¶ 22} From the record, it appears that the motion to suppress and the trial in this

matter were set rather quickly. Breneman was indicted on February 4, 2010, and the trial

was scheduled in less than three months time on April 29, 2010. Simply put, there was no

concern that the case was stale nor that there was a need to move at an expedited pace to

satisfy speedy trial demands. We also note that Breneman was out on bond during almost

the entirety of the case.

{¶ 23} Lastly, we note that immediately after denying Attorney Settina’s motion to

appear and request for a continuance, the trial court continued the motion to suppress

hearing until April 21, 2010, in order to accommodate Attorney Cogswell’s schedule. In

light of the trial court’s marked emphasis on the ability of counsel to proceed with the

current case schedule and the “adverse effect” any continuance would have on the State’s

witnesses, it seems unusual that the trial court would then continue the motion to suppress

by seven days. We also note that Attorney Settina was not asked if he could be ready for

the rescheduled motion hearing on April 21, 2010. Simply put, the trial court’s basis for

denying the motion to appear and request for a continuance was severely undermined by its

subsequent decision to continue the motion to suppress in order to accommodate appointed

counsel.

{¶ 24} Upon review, we find that the trial court’s decision to deny Breneman’s

motion for substitution of counsel and Attorney Settina’s request for a continuance was

unreasonable under the “unique facts” presented in the instant case. Breneman’s motion for

substitution was not made in an untimely manner. The State did not oppose Breneman’s 11

motions, and no evidence was adduced which established that the State’s witnesses would be

adversely affected by a continuance. There were no prior requests for continuances, and

there was no evidence of bad faith or contrivance on the part of Breneman or Attorney

Settina. The trial court’s rigid and inflexible adherence to its trial calendar ignored

Breneman’s presumptive right to counsel of his own choosing.

{¶ 25} Breneman’s first assignment of error is sustained.

{¶ 26} Breneman’s second assignment of error is as follows:

{¶ 27} “DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL

COUNSEL WHEN TRIAL COUNSEL REPEATEDLY ELICITED PREJUDICIAL

TESTIMONY OF DEFENDANT’S PRIOR BAD ACTS AND REPUTATION AND

FAILED TO OBJECT TO QUESTIONS PROPOSED BY JURORS.”

{¶ 28} In light of our disposition with respect to Breneman’s first assignment of

error, his second assignment is moot.

{¶ 29} Breneman’s first assignment of error having been sustained, the judgment of

the trial court is reversed, and this matter is remanded for proceedings consistent with this

opinion.

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FAIN, J. and HALL, J., concur.

Copies mailed to:

Nick A. Selvaggio Michael R. Pentecost Hon. Roger B. Wilson