[Cite as State v. Cobb,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26847

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE CHAD J. COBB COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 12 07 1887

DECISION AND JOURNAL ENTRY

Dated: May 7, 2014

BELFANCE, Presiding Judge.

{¶1} Chad Cobb appeals from his convictions in the Summit County Court of Common

Pleas. For the reasons set forth below, we affirm.

I.

{¶2} On July 9, 2012, Mr. Cobb was indicted for aggravated murder and kidnapping.

By way of a supplemental indictment on August 15, 2012, Mr. Cobb was charged with three

counts of aggravated murder, each with two capital specifications, and one count each of

kidnapping, aggravated robbery, felonious assault, retaliation, tampering with evidence, grand

theft, abuse of a corpse, possessing criminal tools, and domestic violence. Following the

supplemental indictment, Mr. Cobb’s retained counsel withdrew, and new counsel was

appointed.

{¶3} Mr. Cobb pleaded guilty to aggravated murder, kidnapping, aggravated robbery,

felonious assault, retaliation, tampering with evidence, grand theft, abuse of a corpse, possessing 2

criminal tools, and domestic violence. All of the capital specifications were dismissed along

with the remaining charges, and the trial court sentenced Mr. Cobb to the agreed aggregate term

of life in prison without the possibility of parole. Mr. Cobb has appealed, raising three

assignments of error for our review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT DID NOT HAVE SUBJECT MATTER JURISDICTION TO HEAR THE AGGRAVATED MURDER ISSUE AGAINST APPELLANT IN VIOLATION OF ARTICLE [I] SECTION 10 OF THE OHIO CONSTITUTION[.]

{¶4} In Mr. Cobb’s first assignment of error, he argues that the trial court did not have

subject matter jurisdiction over his case because the State “failed to establish that the death

occurred in Summit County.” We disagree.

{¶5} Although Mr. Cobb frames his argument in terms of subject-matter jurisdiction, it

is actually one of venue. Venue and subject-matter jurisdiction are distinct legal concepts. See

State v. Bobinchuck, 9th Dist. Summit No. 19536,

, *1 (Sept. 13, 2000).

“‘Jurisdiction’ means the courts’ statutory or constitutional power to adjudicate the case.”

(Internal quotations and citations omitted.) Pratts v. Hurley,

,

,

¶ 11. “It is only when the trial court lacks subject matter jurisdiction that its judgment is void[.]”

(Internal quotations and citations omitted.) Id. at ¶ 12. “Because subject-matter jurisdiction goes

to the power of the court to adjudicate the merits of a case, it can never be waived and may be

challenged at any time.” Id. at ¶ 11

{¶6} By contrast, “venue is a fact which must be proved in criminal prosecutions

unless it is waived by the defendant.” State v. Headley,

(1983). “Section

10, Article I of the Ohio Constitution fixes venue, or the proper place to try a criminal matter[.]” 3

Article I, Section 10 of the Ohio Constitution provides, in pertinent part, that “[i]n any trial,

in any court, the party accused shall be allowed * * * a speedy public trial by an impartial jury of

the county in which the offense is alleged to have been committed * * *.” “Generally, this rule is

preserved in R.C. 2901.12, Ohio’s venue statute, although the Committee Comment to that

statute notes that provision is also made for the mobile offender whose course of criminal

conduct affects a number of jurisdictions.”

.

{¶7} Mr. Cobb does not challenge the trial court’s statutory or constitutional authority

over this criminal matter. Rather, his argument that the murder did not occur in Summit County

goes to venue, not subject matter jurisdiction. See Pratts at ¶ 11-13;

. See also

R.C. 2931.03 (establishing jurisdiction of common pleas courts over criminal offenses

committed by adults subject to certain exceptions). The indictment issued in this case contained

an allegation that all of the crimes occurred in Summit County. Mr. Cobb’s guilty plea

constituted a complete admission of guilt to the crimes charged in the indictment. See Crim.R.

11(B)(1); State v. Pulizzi, 9th Dist. Summit No. 20729,

, ¶ 29, citing Shie v.

Leonard,

(1998). Therefore, because the indictment alleged that all the

crimes occurred in Summit County, Mr. Cobb admitted that fact by pleading guilty. See also

State v. Teel, 6th Dist. Sandusky No. S-06-011,

(“[A] guilty plea

constitutes such a waiver [of venue] and precludes a defendant from challenging the factual issue

of venue on appeal.”).

{¶8} Accordingly, Mr. Cobb’s first assignment of error is overruled. 4

ASSIGNMENT OF ERROR II

APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN RETAINED COUNSEL FAILED TO SHOW UP AT A MOTION TO DISMISS HEARING IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION[.]

{¶9} Mr. Cobb argues in his second assignment of error that he received ineffective

assistance of counsel. We disagree.

{¶10} In order to prevail on an ineffective assistance of counsel claim, a defendant

“must show (1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different.” State v. Mundt,

,

, ¶ 62, citing Strickland v. Washington,

(1984).

{¶11} Prior to his indictment by the grand jury in this case, Mr. Cobb was held on a

complaint filed with the Barberton Municipal Court. Mr. Cobb’s attorney filed a motion for his

immediate release because more than ten days had passed since his arraignment without a

preliminary hearing. See Crim.R. 5(B)(1). A hearing was scheduled on his motion, but his

counsel did not attend the hearing. The trial court subsequently denied Mr. Cobb’s motion.

{¶12} Mr. Cobb argues that his counsel’s failure to appear at the hearing on his motion

constituted ineffective assistance. However, because he pleaded guilty, Mr. Cobb must be able

to show that there is a reasonable probability that he would not have pleaded guilty but for his

counsel’s performance in order to prevail on a claim of ineffective assistance. State v. Taylor,

6th Dist. Lucas No. L-10-1302,

, ¶ 19. See also Hill v. Lockhart,

(1985) (“[I]n order to satisfy the ‘prejudice’ requirement, the defendant must show that 5

there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty

and would have insisted on going to trial.”). Thus, assuming that his counsel’s performance fell

below an objective standard of reasonableness, Mr. Cobb has not explained how his counsel’s

failure to appear at a hearing more than six months prior to his pleading guilty affected his

decision to plead guilty, and we will not develop an argument for him.1 See App.R. 16(A)(7);

State v. Harmon, 9th Dist. Summit. No. 26426,

. See also State v. Spates,

(1992), paragraph two of the syllabus (“A defendant’s plea of guilty entered

into knowingly, intelligently and voluntarily after a preliminary hearing waives defendant’s right

to challenge a claimed deprivation of the constitutional right to counsel at the preliminary

hearing stage of a criminal proceeding.”).

{¶13} Accordingly, Mr. Cobb’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

APPELLANT’S TRIAL COUNSEL WAS IMPROPERLY ALLOWED TO WITHDRAW THUS DENYING APPELLANT THE RIGHT TO RETAINED COUNSEL OF HIS CHOICE IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I SECTION 10 OF THE OHIO CONSTITUTION[.]

{¶14} Mr. Cobb argues that the trial court violated his right to counsel by permitting his

original counsel to withdraw. We disagree.

{¶15} Following Mr. Cobb’s supplemental indictment, his retained counsel moved to

withdraw as retained counsel, which the trial court permitted. Counsel then asked the court to

appoint him as counsel, noting that he had represented Mr. Cobb throughout the two months of

1 We also note that Mr. Cobb does not develop an argument as to how his counsel’s failure to appear at the hearing affected the outcome of the motion at issue in that hearing. See App.R. 16(A)(7); State v. Harmon, 9th Dist. Summit. No. 26426,

. He does not discuss the merits of the motion, only that the trial court mentioned in its order denying it that his counsel did not appear. 6

the case and that he had not been paid in relation to his representation. The trial court found Mr.

Cobb to be indigent and indicated that it would take counsel’s request to be appointed under

advisement. Ultimately, the trial court appointed different counsel to represent Mr. Cobb.

{¶16} We initially note that Mr. Cobb’s entire argument focuses on the trial court’s

decision to allow his original counsel to withdraw as retained counsel, arguing that the trial court

failed to enforce the Rules of Professional Conduct. However, Mr. Cobb has not cited any

authority that a trial court permitting counsel to withdraw upon request interferes with a

defendant’s right to counsel of his or her choice, nor has he developed any argument tying a

failure to precisely follow the Rules of Professional Conduct to a deprivation of his Sixth

Amendment right to counsel. See App.R. 16(A)(7). In any case, even assuming that the trial

court’s decision to permit counsel to withdraw did affect Mr. Cobb’s Sixth Amendment rights,

that decision was a final, appealable order and, therefore, outside the scope of this appeal. See

State v. Chambliss,

,

, syllabus (“A pretrial ruling removing a

criminal defendant’s retained counsel of choice is a final order subject to immediate appeal.”);

App.R. 4(A) (Notice of appeal must be filed within 30 days of the entry of judgment or order

appealed.).

{¶17} We also note that “[t]he right to counsel of choice does not extend to defendants

who require counsel to be appointed for them.” United States v. Gonzalez-Lopez,

(2006). During the hearing at which Mr. Cobb’s retained counsel withdrew, Mr. Cobb told

the trial court that he was indigent, and Mr. Cobb’s retained counsel told the trial court that Mr.

Cobb had not paid him for his representation in the case. Mr. Cobb does not dispute on appeal

that he was indigent or that he required the appointment of counsel. Because Mr. Cobb required

the appointment of counsel, he was not constitutionally entitled to counsel of his choice. See

7

See also State v. Fry,

,

(“In general, an indigent

defendant does not have a constitutional right to choose the attorney who will represent him or

her at state expense. [T]hose who do not have the means to hire their own lawyers have no

cognizable complaint so long as they are adequately represented by attorneys appointed by the

courts.”) (Internal quotations and citations omitted.).

{¶18} Mr. Cobb’s third assignment of error is overruled.

III.

{¶19} Mr. Cobb’s assignments of error are overruled, and the judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30. 8

Costs taxed to Appellant.

EVE V. BELFANCE FOR THE COURT

WHITMORE, J. MOORE, J. CONCUR.

APPEARANCES:

WESLEY C. BUCHANAN, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.