STATE OF OHIO v. CHAD J. COBB
C.A. No. 26847
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
May 7, 2014
[Cite as State v. Cobb, 2014-Ohio-1923.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 12 07 1887
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 supplemеntal 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 rеtained counsel withdrew, and new counsel was appointed.
{3} Mr. Cobb pleaded guilty to aggravated murder, kidnapping, aggravated robbery, felonious assault, retaliation, tampering with evidenсe, grand theft, abuse of a corpse, possessing
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, 2000 WL 1287296, *1 (Sept. 13, 2000). “‘Jurisdiction’ means the cоurts’ statutory or constitutional power to adjudicate the case.” (Internal quotations and citations omitted.) Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, ¶ 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, 6 Ohio St.3d 475, 477 (1983). ”
{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 Cоunty goes to venue, not subject matter jurisdiction. See Pratts at ¶ 11-13; Headley at 477. See also
{8} Accordingly, Mr. Cobb‘s first assignment of error is overruled.
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 performаnce 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, 115 Ohio St.3d 22, 2007-Ohio-4836, ¶ 62, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694 (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 mоtion for his immediate release because more than ten days had passed since his arraignment without a preliminary hearing. See
{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 а claim of ineffective assistance. State v. Taylor, 6th Dist. Lucas No. L-10-1302, 2011-Ohio-5462, ¶ 19. See also Hill v. Lockhart, 474 U.S. 52, 58-59 (1985) (“[I]n order to satisfy the ‘prejudice’ requirement, the defendant must show that
{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 pеrmitting 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
{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 enforcе 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 chоice, 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
{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, 548 U.S. 140, 151 (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 rеpresentation 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 appоintment of counsel, he was not constitutionally entitled to counsel of his choice. See id.
{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 cоnstitute the mandate, pursuant to
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 рeriod for review shall begin to run.
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.