State v. Howard
2013 Ohio 2884
Ohio Ct. App.2013Background
- On Aug. 19, 2011, two masked intruders entered the home of Brian McNemar and Ava Gabriele, bound them with duct tape, stole $1,500, and one intruder sexually assaulted Gabriele. Police recovered gloves, a sweatshirt, and a contact lens; DNA linked the contact lens to co-defendant Obermiller.
- Evidence (store surveillance, receipts, witness statements) connected Erick Howard to purchases of gloves and involvement with Obermiller and Taylor; Obermiller later confessed and testified against Howard in exchange for a plea and 7-year aggregate sentence.
- Howard went to trial (rejecting a pretrial plea offer of 12 years); the jury convicted him of aggravated burglary, aggravated robbery, kidnapping, and rape, with firearm specifications; trial court imposed an aggregate 30-year sentence.
- On appeal Howard raised five assignments of error: denial of counsel of choice, alleged punishment for exercising right to trial (disparate sentencing / merger), ineffective assistance of counsel, sexual-predator designation, and sufficiency/manifest weight of the evidence.
- The Fifth District affirmed the convictions, found kidnapping was an allied offense that should have merged with aggravated burglary/robbery, concluded the sentencing record created an appearance of punishing Howard for going to trial, vacated sentence and remanded for resentencing on merger and sentencing, but rejected claims of denial of counsel of choice, ineffective assistance, erroneous sexual-predator designation, and challenges to sufficiency/weight of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to counsel of choice / late substitution | State: trial court properly denied late substitution; no complete breakdown in relationship and no substitute counsel ready | Howard: court improperly refused his request to replace retained counsel on morning of trial | Denied error: trial court did not abuse discretion; no evidentiary showing of irreconcilable conflict or ready substitute |
| Merger of allied offenses (R.C. 2941.25) | State: offenses not allied because burglary entry, theft, robbery, rape, kidnapping involve distinct conduct/animus | Howard: kidnapping and other counts should merge (restraint incidental); overall allied-offense argument | Mixed: kidnapping merged with aggravated burglary/robbery (restraint incidental); rape and burglary/robbery did not merge |
| Sentencing appearance of trial-penalty / consecutive sentences | State: sentence within court's discretion and disparity with co-defendant explainable | Howard: sentence excessive, disparate vs. co-defendant, and trial court comment suggested punishment for going to trial | Court vacated sentence and remanded for resentencing: comments created appearance of punishment for exercising right to trial; remand also required due to merger ruling |
| Ineffective assistance / evidentiary and trial strategy complaints | State: counsel made reasonable tactical choices; co-defendant testimony and other evidence sufficient | Howard: counsel failed to suppress ID, failed to request ID instruction, failed to present window model | Denied: counsel performance not shown objectively deficient nor prejudicial; verdict supported by credible evidence |
Key Cases Cited
- Caplin & Drysdale v. United States, 491 U.S. 617 (1989) (defendant's right to retain counsel of choice described and limited)
- Powell v. Alabama, 287 U.S. 45 (1932) (right to fair opportunity to secure counsel of choice)
- Gonzalez–Lopez v. United States, 548 U.S. 140 (2006) (erroneous deprivation of counsel of choice is structural error)
- Wheat v. United States, 486 U.S. 153 (1988) (Sixth Amendment right to counsel of choice is circumscribed by trial court's docket/conflict concerns)
- Ungar v. Sarafite, 376 U.S. 575 (1964) (denial of continuance reviewed under totality of circumstances; due process standard)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance of counsel)
- State v. Johnson, 128 Ohio St.3d 153 (2010) (Ohio allied-offense doctrine revised to focus on defendant's conduct)
- State v. Logan, 60 Ohio St.2d 126 (1979) (test for separate animus in kidnapping vs. related offense)
- State v. Morris, 159 Ohio App.3d 775 (2005) (appearance of sentence enhanced for exercising right to trial requires vacatur absent unequivocal statement to the contrary)