[Cite as State v. Ames,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-19-02

v.

BRUCE M. AMES, OPINION

DEFENDANT-APPELLANT.

Appeal from Lima Municipal Court Trial Court No. 18TRC02739 A3

Judgment Affirmed

Date of Decision: July 1, 2019

APPEARANCES:

Blaise Katter for Appellant

Anthony M. DiPietro for Appellee Case No. 1-19-02

ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Bruce M. Ames (“Ames”), appeals the November

30, 2018 judgment entries of sentencing of the Lima Municipal Court. For the

reasons that follow, we affirm the judgments of the trial court.

{¶2} On March 26, 2018, Ames was issued a citation for operating a vehicle

under the influence of alcohol or drugs-OVI in violation of R.C. 4511.19(A)(1)(a),

a first-degree misdemeanor, and for a tinted-glass restriction in violation of R.C.

4513.241(C), a minor misdemeanor. (Doc. No. 1). Ames submitted to a urine test

subsequent to his arrest. (Id.). Ames appeared for arraignment in the trial court on

March 29, 2018 and entered pleas of not guilty. (Doc. No. 4).

{¶3} Thereafter, Ames was charged with an additional offense of operating

a vehicle under the influence of alcohol or drugs-OVI pursuant to R.C.

4511.19(A)(1)(j)(viii)(II), a first-degree misdemeanor, after the State received the

results of Ames’ urine test on August 21, 2018. (Doc. No. 11). On August 27,

2018, Ames filed a written plea of not guilty to the new OVI charge along with a

demand for a jury trial. (Doc. Nos. 15, 16). However, on November 28, 2018,

Ames executed a waiver of jury trial.1 (Doc. No. 24). On November 29, 2018, a

bench trial commenced, and the trial court found Ames guilty of all three charges.

(Doc. No. 21).

1 This waiver was journalized on December 20, 2018. (Doc. No. 24).

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{¶4} At Sentencing, the trial court merged the two OVI offenses. Ames was

sentenced on the OVI in violation of R.C. 4511.19(A)(1)(j)(viii)(II) to serve 90 days

in the Allen County Justice Center with 80 days suspended upon the conditions that

Ames have no further driving under suspensions; no further no operator’s license,

offenses or no six-point violations for a two-year period; that Ames report to the

Allen County Justice Center on December 7, 2018 at 6:00p.m. for imposition of his

ten-day jail sentence; that Ames be placed on probation for period of one-year with

the same conditions of the suspended jail sentence; that Ames’s license be

suspended for a period of 730 days commencing on November 30, 2018; and that

Ames pay a $750.00 fine plus court costs in the instant matter. (Doc. No. 21). Ames

received a $25.00 fine and was ordered to pay court costs on the tinted-glass

conviction. (Id.).

{¶5} On December 28, 2018, Ames filed notice to appeal raising three

assignments of error.2 (Doc. Nos. 25-28).

Assignment of Error No. I

Mr. Ames did not knowingly, intelligently, and voluntarily waive his right to a jury trial.

{¶6} Ames argues that there was no colloquy on the record to determine if

his jury waiver was in fact knowing, intelligent, and voluntarily given. Moreover,

2 The partial transcript requested included the pre-trial conference held on November 13, 2018 and the trial and sentencing hearing held on November 29, 2018. (Doc. No. 28). We note that we were not provided with any other transcripts related to the four pre-trial proceedings.

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Ames argues that even if his waiver was valid, his oral request for a jury trial made

immediately prior to the commencement of his bench trial was a sufficient

withdrawal of his jury waiver.

Standard of Review

{¶7} The Sixth Amendment to the United States Constitution, made

applicable to the states through the Fourteenth Amendment, guarantees an accused

the right to trial by jury. Duncan v. Louisiana,

,

(1968). Likewise, Section 5, Article I of the Ohio Constitution states that the “right

of trial by jury shall be inviolate.” However, Crim.R. 23(A)3 allows a defendant to

waive his right to a trial by jury in petty offense cases provided that the waiver is

made knowingly, intelligently, and voluntarily, and in writing. The General

Assembly has set forth the manner in which a defendant may waive this right. R.C.

2945.05 states:

In all criminal cases pending in courts of record in this state, the defendant may waive a trial by jury and be tried by the court without a jury. Such waiver by a defendant, shall be in writing, signed by the defendant, and filed in said cause and made a part of the record thereof. It shall be entitled in the court and cause, and in substance as follows: “I __________, defendant in the above cause, hereby voluntarily waive and relinquish my right to a trial by jury, and elect to be tried by a Judge of the Court in which the said cause may be

3 Crim.R. 23(A) provides: “In serious offense cases the defendant before commencement of the trial may knowingly, intelligently and voluntarily waive in writing his right to trial by jury. Such waiver may also be made during trial with the approval of the court and the consent of the prosecuting attorney. In petty offense cases, where there is a right of jury trial, the defendant shall be tried by the court unless he demands a jury trial. Such demand must be in writing and filed with the clerk of court not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later. Failure to demand a jury trial as provided in this subdivision is a complete waiver of the right thereto.”

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pending. I fully understand that under the laws of this state, I have a constitutional right to a trial by jury.”

Such waiver of trial by jury must be made in open court after the defendant has been arraigned and has had opportunity to consult with counsel. Such waiver may be withdrawn by the defendant at any time before the commencement of the trial.

{¶8} The Supreme Court of Ohio has construed R.C. 2945.05 to require five

conditions to be met in order for a waiver to be validly imposed. The waiver must

be (1) in writing, (2) signed by the defendant, (3) filed, (4) made part of the record,

and (5) made in open court. See State v. Lomax,

, 2007-Ohio-

4277, ¶ 9; See also State v. Barr, 3d Dist. Union No. 14-09-40,

, citing Lomax at ¶ 9.

{¶9} “A jury waiver must be voluntary, knowing, and intelligent.” State v.

Osie,

,

, ¶ 45 citing State v. Ruppert,

(1978). “Waiver may not be presumed from a silent record.”

citing State v. Foust,

,

. “However, if the

record shows a jury waiver, the verdict will not be set aside except on a plain

showing that the waiver was not freely and intelligently made.”

“Moreover, a

written waiver is presumptively voluntary, knowing, and intelligent.”

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Analysis

{¶10} On appeal, Ames contends that his jury waiver was not voluntary,

knowing, or intelligently given because the trial court failed to comply with the strict

confines of R.C. 2945.05. We disagree.

{¶11} The record indicates that Ames executed a waiver of jury trial on

November 28, 2019. Ames’s waiver was referenced by the trial court, in open court,

immediately prior to Ames’s bench trial on November 29, 2018. (Nov. 29, 2018

Tr. at 3, 4). Indeed, Ames’s appeal on this issue ignores the underlying facts which

led to the discussion of the waiver of jury in open court and Ames has failed to

provide us with a transcript of any proceeding that would address his waiver of jury

trial. “App.R. 9 requires an appellant to provide the appellate court with transcripts

of the proceedings that are necessary to review the merits of his appeal.” State v.

Brown, 3d Dist. Marion No. 9-10-12,

, citing App.R. 9(B).

However, if no transcript is available, App.R. 9(C) and (D) provide alternatives for

the appellant. State v. Getzinger, 3d Dist. Henry No. 7-12-06,

; see also App.R. 9.

{¶12} Here, the record reflects that Ames executed a jury waiver on

November 28, 2018, the day before his scheduled trial. (Nov. 29, 2018 Tr. at 3, 4);

(Doc. No. 24). However, the record is void of any information as to how and when

the trial court received such waiver prior to trial. (See id.). In the absence of a

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complete transcript of the proceedings, a statement of the evidence pursuant to

App.R. 9(C), or an agreed statement pursuant to App.R. 9(D), we have no alternative

but to indulge the presumption of the regularity of the proceedings and the validity

of the judgment in the trial court. State v. Lucas, 3d Dist. No. 9-90-81,

, *2 (Dec. 4, 1991), citing Ostrander v. Parker-Fallis,

(1972). Thus, because Ames failed to file a statement of evidence under App.R.

9(C) or an agreed statement under App.R. 9(D), he has waived any alleged error

regarding the trial court’s compliance with R.C. 2945.05. State v. Brewer,

(1990), citing United States v. Gallo,

(6th Cir. 1985).

{¶13} In the alternative, Ames argues that the trial court erred by denying his

request to withdraw his jury trial waiver made immediately prior to his bench trial.

We disagree.

{¶14} A demand for a jury trial must be made in writing and filed with the

court not less than ten days prior to the date set for trial or on or before the third day

following receipt of notice of the date set for trial, whichever is later. Crim.R. 23.

However, a waiver of a jury trial may be withdrawn by a defendant at any time

before the commencement of a trial. R.C. 2945.05. Harmonizing Crim.R. 23 and

R.C. 2945.05, we conclude that the timeliness in filing a demand for a jury trial or

the request to withdraw a waiver of jury trial is necessary, so that, trial courts are

not surprised by last minute requests that place undue burdens upon the court and

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those individual jurors and witnesses who might be summoned without adequate

warning. Marysville v. Foreman,

(3d Dist. 1992),

abrogated on other grounds, State v. Pless,

(1996). As such,

we have previously determined that “[a]ny withdrawal of a jury waiver should,

therefore, be made in a reasonable time under the circumstances. A withdrawal of

a waiver before trial is preferable so that proper preparations can be made for the

jurors’ presence.”

{¶15} In this assignment of error, Ames fails to present any citations to case

law or statutes in support of his assertions. “[A] defendant has the burden of

affirmatively demonstrating the error of the trial court on appeal.” State v. Stelzer,

9th Dist. Summit No. 23174,

, citing State v. Cook, 9th Dist.

Summit No. 20675,

, ¶ 27. “Moreover, ‘[i]f an argument exists that

can support this assignment of error, it is not this court's duty to root it out.’”

quoting Cardone v. Cardone, 9th Dist. Summit Nos. 18349 and 18673,

, *8 (May 6, 1998).

{¶16} “App.R. 12(A)(2) provides that an appellate court ‘may disregard an

assignment of error presented for review if the party raising it fails to identify in the

record the error on which the assignment of error is based or fails to argue the

assignment separately in the brief, as required under App.R. 16(A).’” State v.

Jackson, 10th Dist. Franklin No. 14AP-670,

, quoting App.R.

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12(A)(2). “Additionally, App.R. 16(A)(7) requires that an appellant's brief include

‘[a]n argument containing the contentions of the appellant with respect to each

assignment of error presented for review and the reasons in support of the

contentions, with citations to the authorities, statutes, and parts of the record on

which appellant relies.’”

quoting App.R. 16(A)(7). Ames fails to cite any legal

authority to support his arguments related to withdrawal of his jury trial waiver

under his first assignment of error.

{¶17} Since we are not required to address arguments that have not been

sufficiently presented for review or supported by proper authority under App.R.

16(A)(7), we will not address Ames’s arguments associated with the withdrawal of

his jury trial waiver. See State v. Jordan, 10th Dist. Franklin No. 11AP–691, 2012-

Ohio-1760, ¶ 17, citing State v. Gonzalez, 10th Dist. Franklin No. 10AP-628, 2011-

Ohio-1193, ¶ 28-29.

{¶18} For these reasons, Ames’ first assignment of error is overruled.

Assignment of Error No. II

The trial court erred when it failed to inquire into the circumstances that the attorney-client relationship had completely broken down, violating Mr. Ames right to counsel under the 6th Amendment to the Constitution and Article 1, Section 10 of the Ohio Constitution.

{¶19} In his second assignment of error, Ames argues that the trial court

erred by failing to inquire into the circumstances surrounding his request to seek

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substitution of his trial counsel. In particular, Ames contends that the trial court was

required to inquire into the facts and circumstances surrounding the purported

breakdown of the attorney-client relationship. For the reasons that follow, we find

this assignment of error is without merit.

Standard of Review

{¶20} The trial court has discretion to remove counsel and to permit the

substitution of new counsel, and this decision will not be reversed absent abuse of

discretion.4 See State v. Stein, 3d Dist. Mercer No. 10-17-13,

, citing State v. Murphy,

(2001). An abuse of discretion

suggests that a decision is unreasonable, arbitrary, or unconscionable. State v.

Adams,

(1980).

Analysis

{¶21} “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.’” Stein at ¶ 20, quoting State v. Evans,

,

, ¶ 30 (7th Dist.), citing

(noting that an indigent

defendant must show “good cause” to warrant substitution of counsel). Whether

4 We apply the same standard to the substitution of privately-retained counsel that we do to the substitution of court-appointed counsel. See State v. Jones,

(2001); See also State v. Goodman, 11th Dist. Trumball No. 2006-T-0130,

; State v. Cobb, 4th Dist. Scioto No. 06CA3076,

; State v. Fentress, 5th Dist. Stark No. 2001CA00155,

, *3; State v. Cox, 11th Dist. Trumball No. 95-T-5279,

, *4 (May 23, 1997); State v. Gallo, 5th Dist. Stark No. CA-6808,

, *3 (Nov. 24, 1986).

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counsel is court-appointed or privately-retained the Sixth Amendment’s (as

incorporated by the Fourteenth Amendment) guarantees that an individual is entitled

to “‘[c]ompetent representation[, but it] does not include the right to develop and

share a “meaningful attorney-client relationship” with one’s attorney.’”

quoting

State v. Gordon,

,

, ¶ 12 (1st Dist.); See

, citing Morris v. Slappy,

(1983) (noting that no court

could possibly guarantee that a defendant would develop the kind of rapport that

would constitute a “meaningful attorney-client relationship” whether the attorney is

privately-retained or provided by the public).

{¶22} “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.’”

quoting State v. Henness,

(1997), quoting State v. Coleman,

(1988), paragraph four of the syllabus. While a person with

sufficient financial resources can effectively choose a particular attorney privately-

retaining them for their specific case and conceptually discharge them and seek to

substitute new privately-retained counsel when there is the perception of or the

actual absence of rapport, this right to counsel of one’s choosing is not without

limitation. “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

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may be utilized as a way to delay the proceedings or trifle with the court.’” State v.

Baskins, 3d Dist. Allen No. 1-18-23,

, ¶ 10 quoting United States

v. Krzyske,

(6th Cir. 1988), and citing State v. Lawson, 8th Dist.

Cuyahoga No. 97018,

. See also State v. Jones,

(2001) (stating that, among the “[f]actors to consider in deciding whether

a trial court erred in denying a defendant’s motion to substitute counsel for include

‘the timeliness of the motion’”), quoting United States v. Jennings,

(6th Cir. 1996).

{¶23} Here, Ames’s request (made moments before trial) was neither

supported by good cause nor timely made. Ames’s trial counsel noted (to the trial

court) that Ames did not want to proceed to a bench trial due to a disagreement

regarding counsel’s legal opinions and legal abilities. (Nov. 29, 2018 Tr. at 4). As

a result, the trial court engaged Ames, on the record, regarding his reasoning to

substitute counsel. The record reflects that Ames was frustrated with his counsel’s

trial strategy regarding the risks of a jury trial versus a bench trial on the eve of trial.

(See Nov. 29, 2018 Tr. at 4, 5); (See Doc. No. 24). Specifically, Ames’ was

frustrated that his trial counsel’s advice was for him (Ames) to waive a jury trial in

favor of a bench trial. (Id.).

{¶24} We are not persuaded that Ames’s stated reason for requesting to

substitute counsel demonstrated how his attorney-client relationship suffered a

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breakdown in communication or cooperation of such magnitude that warranted

substitution of counsel. See Coleman,

, at paragraph four of the

syllabus (stating that, in order to demonstrate good cause, “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. Coleman, 2d Dist.

Montgomery No. 19862,

. See also State v. Evans,

,

, ¶ 31 (7th Dist.) (“There must be a legitimate reason

for the defendant’s lack of confidence in the attorney because good cause for

dismissal cannot be determined solely according to the subjective standard of what

the defendant perceives.”), citing State v. Julious, 4th Dist. Scioto No. 96CA2409,

, *2 (Dec. 5, 1996). Indeed, “[m]erely because appointed

counsel’s trial tactics or approach may vary from that which appellant views as

prudent is not sufficient to warrant the substitution of counsel.” State v. Glasure,

, (7th Dist. 1999). See also Stein at ¶ 29 (“‘Defendant and

trial counsel’s failure to ‘see eye to eye’ regarding trial strategy is an insufficient

basis for removal of appointed counsel.’”), quoting State v. Hill, 8th Dist. Cuyahoga

No. 105554,

, ¶ 11, and citing State v. Crew, 8th Dist. Cuyahoga No.

86943,

(“Hostility, tension, or personal conflict between an

attorney and a client that do not interfere with the preparation or presentation of a

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competent defense are insufficient to justify the withdrawal of appointed counsel.”)

In State v. Cowans,

(1999), the Supreme Court of Ohio noted,

“A lawyer has a duty to give the accused an honest appraisal of his case. * * * Counsel has a duty to be candid; he has no duty to be optimistic when the facts do not warrant optimism.” Brown v. United States (C.A.D.C. 1959),

(en banc), quoted in McKee v. Harris (C.A.2, 1981),

. “ ‘If the rule were otherwise, appointed counsel could be replaced for doing little more than giving their clients honest advice.’” McKee,

, quoting McKee v. Harris (S.D.N.Y. 1980),

.

Cowans,

.

{¶25} In our review, the record reflects that Ames’s substitute-trial-counsel

request was not a breakdown in communication, but rather, a trial-strategy

disagreement between Ames and his trial counsel. The record demonstrates that

Ames and his trial counsel were working together without difficulty until the

moment the trial was scheduled to commence. Further, Ames did not proffer to the

trial court that he had contacted substitute counsel who would be willing to take

over his case on such short notice. Regardless, after hearing this frustration, Ames’s

trial counsel reiterated his willingness to continue his representation. Accordingly,

Ames’s reason for substitute counsel fails to demonstrate the “good cause” for

further inquiry by the trial court.

{¶26} Moreover, Ames’s substitute-counsel request made only moments

before the bench trial was scheduled to commence was not timely. See State v.

Spencer, 10th Dist. Franklin No. 16AP-444,

, ¶ 9 (concluding that

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Spencer’s substitute-counsel request was not timely because “[i]t occurred the

morning of trial”). In other words, it was not error for the trial court to consider the

timing of Ames’ request when evaluating whether to grant or deny the request.

Thus, the trial court’s refusal to substitute Ames’s trial counsel was not an abuse of

discretion under the facts presented.

{¶27} Ames’s second assignment of error is overruled.

Assignment of Error No. III

The trial court erred and abused its discretion when it denied a legitimate continuance request to secure new counsel at the first scheduled trial date.

{¶28} In his third assignment of error, Ames argues that the trial court erred

by denying his oral motion to continue trial. In particular, Ames contends the trial

court should have continued trial to permit him to seek substitution of counsel and

proceed with a jury trial. We disagree.

Standard of Review

{¶29} “An appellate court must not reverse the denial of a continuance unless

there has been an abuse of discretion.” State v. Unger,

(1981).

An abuse of discretion connotes that a decision is unreasonable, arbitrary, and

unconscionable.

.

Analysis

The Supreme Court of Ohio has recognized:

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There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

, quoting Ungar v. Sarafite,

(1964). “Weighed

against any potential prejudice to a defendant are concerns such as a court’s right to

control its own docket and the public's interest in the prompt and efficient dispatch

of justice.”

{¶30} The Supreme Court of Ohio identified a number of factors that a trial

court should consider when evaluating a motion for a continuance, which include

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

requested and received; (3) the inconvenience to 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 the defendant

contributed to the circumstance which gives rise to the request for a continuance;

and (6) other relevant factors, depending on the unique facts of each case.

at 67-

68.

{¶31} In this case, Ames argues that the factors that the Ohio Supreme Court

delineated in Unger support granting his motion for a continuance immediately

preceding trial on the basis that there was a breakdown in the attorney-client

relationship and the delay referenced by the trial court was not supported by the

record.

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{¶32} Ames argues that the first two factors of Unger, (1) the length of delay

requested and (2) whether other continuances have been requested or received,

weigh in his favor. However, with respect to addressing the length of the delay,

Ames does not identify how much time he would need for his continuance nor did

he suggest how long it would take him to employ new counsel to represent him in

this matter. Further, even though Ames had not requested a continuance prior, we

cannot conclude that factor is dispositive of his argument.

{¶33} Contrary to Ames’s arguments, the trial court perceived Ames’ request

(for a continuance) as an attempt to delay the proceedings. (Id. at 8). While Ames

points to the second OVI charge being filed in August, 2018 to suggest that there

was ample time to try this case, the trial court noted the original violation date of

March 26, 2018. (Nov. 29, 2018 Tr. at 6); (Doc. Nos. 1, 11). At the time of trial,

Ames’ case had been pending for eight months; there had been at least four pre-

trial conferences; and the matter had been scheduled for a jury trial until a waiver

was presented to the court on November 28th or 29th. (Nov. 29, 2018 Tr. at 3, 4);

(Doc. Nos. 1, 8, 10, 11, 12, 20, 24, 28, 31). This factor (of delay) weighs in favor

of the State.

{¶34} The fifth factor of Unger concerns whether Ames contributed to the

circumstances giving rise to the continuance. We conclude that Ames last minute

“change of heart” was the sole reason for the continuance request. This matter had

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been pending for eight months, and the first time any issue was raised regarding

Ames’ dissatisfaction with his counsel or the bench trial was mere moments before

the first witness was sworn-in.

{¶35} We therefore conclude that trial court did not abuse its discretion by

denying Ames’ motion to continue trial the morning of the bench trial.

{¶36} Accordingly, Ames’ third assignment of error is overruled.

{¶37} Having found no error prejudicial to the appellant in the particulars

assigned and argued in assignments of error one, two, and three, the judgment of the

Lima Municipal Court is affirmed.

Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr

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