2023 Ohio 304
Ohio Ct. App.2023Background:
- Defendant Michael Depew was charged with disorderly conduct (yelling profanities at a neighbor’s minor) and two counts of aggravated menacing (yelling death threats after returning from booking).
- A criminal protection order (CPO) and bail conditions prohibited Depew from returning to his home; counsel Harvey Bruner entered an appearance after the initial CPO proceedings.
- Bruner was later suspended by the Ohio Supreme Court; Bruce Rutsky substituted as counsel and negotiated continuances and bond conditions; trial was set for March 30, 2022.
- Depew pleaded no contest to the disorderly conduct charge; the court accepted the plea and imposed a suspended sentence and fine.
- A bench trial on the aggravated menacing counts resulted in convictions; sentences were suspended and supervised probation was imposed.
- On appeal Depew argued (1) ineffective assistance/conflict of interest from Bruner’s undisclosed disciplinary proceedings, (2) ineffective assistance for Rutsky’s failure to seek judge disqualification after the judge disclosed a social connection to a victim’s family, and (3) Crim.R. 11 error regarding the no-contest plea.
Issues:
| Issue | Plaintiff's Argument (City/Solon) | Defendant's Argument (Depew) | Held |
|---|---|---|---|
| Whether Bruner’s undisclosed, pending disciplinary proceedings created an actual conflict of interest that denied Depew effective assistance of counsel | Bruner’s suspension did not create a conflict and Depew suffered no prejudice; trial court record shows effective representation and timely substitution of counsel | Bruner’s undisclosed disciplinary proceeding created a conflict of interest and deprived Depew of counsel’s undivided loyalty; court should presume prejudice or inquire | Court: No actual conflict shown; Bruner was licensed until suspension, substituted counsel replaced him, no prejudice shown; Strickland standards apply and claim fails |
| Whether Rutsky rendered ineffective assistance by not filing an affidavit of disqualification after the judge disclosed acquaintanceship with a victim’s relative | Trial counsel reasonably declined to seek disqualification; judge expressly stated the contacts would not affect him; filing likely futile and a tactical decision | The judge’s disclosed relationships required disqualification or at least counsel should have filed under R.C. 2701.031; failure was deficient | Court: Counsel’s decision was within reasonable strategic choices; disqualification was unlikely and outcome would not have differed; claim fails |
| Whether accepting a no-contest plea violated Crim.R. 11(B)(2) because plea was treated as a finding of guilt or used in subsequent proceedings | The no-contest plea was properly accepted and court entered judgment of guilt pursuant to plea; plea is an admission of truth of facts, not an admission in later proceedings | Depew argued Crim.R. 11(B)(2) barred a guilty finding or use of the plea against him at the separate aggravated-menacing trial | Court: No Crim.R. 11 violation; plea properly accepted and there is no indication the disorderly-conduct judgment improperly influenced the aggravated-menacing verdict |
Key Cases Cited
- Cuyler v. Sullivan, 446 U.S. 335 (conflict-of-interest rule; demonstration of actual conflict affecting performance relieves showing of prejudice)
- Strickland v. Washington, 466 U.S. 668 (two-prong test for ineffective assistance: performance and prejudice)
- State v. Keith, 79 Ohio St.3d 514, 684 N.E.2d 47 (Ohio discussion of conflict-of-interest principles)
- State v. Madrigal, 87 Ohio St.3d 378, 721 N.E.2d 52 (applying Strickland standard)
- State v. Cook, 65 Ohio St.3d 516, 605 N.E.2d 70 (deference to strategic trial decisions)
- State ex rel. Ogle v. Hocking Cty. Common Pleas Court, 167 Ohio St.3d 181, 190 N.E.3d 594 (definition of actual conflict and related principles)
- State v. Gillard, 64 Ohio St.3d 304, 595 N.E.2d 878 (trial court’s duty to inquire into possible conflicts)
- United States v. Mouzin, 785 F.2d 682 (example of requiring concrete proof that counsel was so affected by personal adversity that representation was prejudiced)