STATE OF OHIO v. ANGEL RIVERA, ELIEZER CLAUDIO, DAVID PENA, RUTH ROJAS-AVELO, RAFAEL ESQUILIN, ROLANDO CARTER, JONATHON BARNETTE
C.A. Nos. 16CA011057, 16CA011059, 16CA011060, 16CA011061, 16CA011063, 16CA011073, 16CA011075; CASE Nos. 16-CR-093520, 16-CR-093559, 16-CR-093831, 16-CR-093558, 16-CR-093557, 16-CR-093675, 16-CR-093560
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
November 13, 2017
[Cite as State v. Rivera, 2017-Ohio-8514.]
TEODOSIO, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO
Dated: November 13, 2017
TEODOSIO, Judge.
{1} Appellants, Angel Rivera, Eliezer Claudio, David Pena, Ruth Rojas-Avelo, Rafael Esquilin, Rolando Carter, and Jonathon Barnette (“Clients“) appeal from an order disqualifying their retained counsel, attorneys Jack Bradley and Michael Stepanik, in the Lorain County Court of Common Pleas. We affirm.
{2} Following an investigation into a drug distribution network, thirteen individuals were charged with multiple felonies, including еngaging in a pattern of corrupt activity and conspiracy to commit drug trafficking, felonies of the first degree. Ten of those individuals retained the services of Bradley & Stepanik Co., LPA, for legal representation. The State filed a motion to disqualify counsel based on
{3} Clients now appeal from the trial court‘s order disqualifying trial counsel and raise one assignment of error for this Court‘s review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT DISQUALIFIED DEFENDANT[S‘] COUNSEL OF CHOICE, IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO CONSTITUTION.
{4} In their sole assignment of error, Clients argue that the trial сourt erred in disqualifying attorneys Jack Bradley and Michael Stepanik as their trial counsel in this case. We disagree.
{5} We first note that a pretrial ruling removing a criminal defendant‘s retained counsel of choice is a final appealable order. State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785, ¶ 27.
{7} A defendant‘s constitutional right tо the counsel of his choice, however, is not unqualified, but is “circumscribed in several important respects.” Miller at ¶ 9, quoting Wheat v. United States, 486 U.S. 153, 159 (1988). “A defendant does not have the right to be represented by (1) an attorney he cаnnot afford; (2) an attorney who is not willing to represent the defendant; (3) an attorney with a conflict of interest; or (4) an advocate (other than himself) who is not a member of the bar.” Miller at ¶ 9, quoting State v. Howard, 5th Dist. Stark No. 2012CA00061, 2013-Ohio-2884, ¶ 39. Therefore, the constitutional right to counsel of choice is “only a presumptive right to employ * * * chosen counsel.” (Emphasis sic.) State v. Keenan, 81 Ohio St.3d 133, 137 (1998). “‘That presumption may be overcome not only by a demonstration of
{8} Trial courts retain a “wide latitude in balancing the right to counsel of choice against the needs of fairness * * * and against the demands of [their] calendar[s].” Miller at ¶ 9, quoting Gonzalez-Lopez at 152. They have an “independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” Gonzalez-Lopez at 152, quoting Wheat at 160. Thus, “[t]rial courts have the inherent authority to regulate the conduct of attorneys, including the disqualification of attorneys in accordance with the Ohio Rules of Professional Conduct.” Harold Pollock Co., LPA v. Bishop, 9th Dist. Lorain No. 12CA010233, 2014-Ohio-1132, ¶ 7. See also Avon Lake Mun. Util. Dept. v. Pfizenmayer, 9th Dist. Lorain No. 07CA009174, 2008-Ohio-344, ¶ 13. They enjoy broad discretion when considering motions to disqualify counsel and, therefore, “‘[w]e rеview a trial court‘s determination regarding a motion to disqualify counsel for an abuse of discretion.‘” In re E.M.J., 9th Dist. Medina No. 15CA0098-M, 2017-Ohio-1090, ¶ 5, quoting Pfizenmayer at ¶ 13. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an abuse of discretion standard, a reviewing court is precluded from simply substituting its own judgment for that of the trial cоurt. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{9} In the case sub judice, the State filed a motion to disqualify attorneys Bradley and Stepanik from representing ten defendants in the same criminal case, pursuant to
the representation of that client will be directly adverse to another current client; [or] - there is a substantial risk that the lawyer‘s ability to сonsider, recommend, or carry out an appropriate course of action for that client will be materially limited by the lawyer‘s responsibilities to another client * * *.
(Emphasis sic.) The Stаte argued at the second hearing that it intended to make a plea offer to at least one of the Clients. Discovery also appeared to be substantial, as the proseсutor stated that it took three hours to download all of the discovery onto a single flash drive. Attorney Bradley stated during the first hearing: “[W]e‘ve got thousands, if not close to five thousand, [phone] calls that have to be gone through and reviewed with clients.” Clients argued at the hearings that they had no intention to testify at trial or engage in plea negotiations with the State.
{10} The parties and the triаl court all agreed that no actual conflict existed prior to the court‘s ruling on this matter. An actual conflict is “a conflict of interest that adversely affects counsel‘s performаnce.” State v. Sibley, 9th Dist. Lorain No. 16CA010908, 2017-Ohio-7015, ¶ 9, quoting Mickens v. Taylor, 535 U.S. 162, 172, fn. 5 (2002). However, the trial court stated in its entry that “the potential for a conflict to arise * * * is of great concern * * *.” A possible conflict exists if the “interests of the defendants may diverge аt some point so as to place the attorney under inconsistent duties.” Sibley at ¶ 8, quoting State v. Dillon, 74 Ohio St.3d 166, 168 (1995), quoting Cuyler v. Sullivan, 446 U.S. 335, 356, fn. 3 (1980) (Marshall, J., concurring in part and dissenting in part). “[A] lawyer represents conflicting interests ‘when, on behalf of one client, it is his duty tо contend for that which duty to another client requires him to oppose.‘” Sibley at ¶ 8, quoting State v. Gillard, 78 Ohio St.3d 548, 553 (1997), quoting State v. Manross, 40 Ohio St.3d 180, 182 (1988).
{11} The trial court inquired of Clients in open court as to the potential conflicts of interest in this case, but Clients nonetheless still wished to be represented by attorneys Bradley
{12} Neither the trial court nor this Court can foresee what evidence will be presented at trial or what plea deals may be offered by the State and accepted by one or more of these individuals. See State v. Kish, 5th Dist. Fairfield No. 17-CA-22, 2017-Ohio-7551, ¶ 32. See also State v. Cook, 5th Dist. Fairfield No. 17-CA-23, 2017-Ohio-7552, ¶ 30. Although Clients asserted that they will not engage in plea negotiations or testify at trial, any one or more of them could certainly change their minds at а later date, and the evidence could potentially incriminate or exculpate certain individuals more than others. See id. The State asserted that plea offers were forthсoming to one or more of Clients and the evidence provided in discovery appeared to be quite substantial. Joint representation of these ten Clients could possibly preclude counsel from exploring plea negotiations and agreements to testify that would be favorable to some Clients and prejudicial to others. See Holloway, 435 U.S. at 490. Joint representation could also prevent counsel from challenging the admission of evidence that is prejudicial to some Clients but perhaps favorable to others. See id. Counsel could also refrain from arguing the relative involvement and culpability of some Clients at sentencing by minimizing the involvement of some and emphasizing the involvement of others. See id. Examples of possible conflicts like this can be readily multiplied. See id. Furthermore, as attorneys Bradley and Stepanik were representing ten different defendants in the same litigation, the risk of a possible conflict arising
{13} After a review of the record, we conclude that the trial cоurt did not abuse its discretion in granting the State‘s motion to disqualify attorneys Bradley and Stepanik in this matter, as there existed a substantial risk of the attorneys’ ability to consider, recommend, or carry out аn appropriate course of action for all ten defendants being materially limited by their responsibilities to their remaining clients in this case.
{14} Accordingly, Clients’ sole assignment of error is overruled.
III.
{15} Clients’ sole assignment of error is overruled. The judgment of the Lorain 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 Pleаs, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall сonstitute 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.
THOMAS A. TEODOSIO
FOR THE COURT
SCHAFER, P. J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
JACK W. BRADLEY and MICHAEL E. STEPANIK, Attorney at Law, for Appellants.
DENNIS P. WILL, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting Attorney, for Appellee.