Opinion
No. 105545
04-19-2018
CITY OF CLEVELAND PLAINTIFF-APPELLEE v. JANEE HARRIS DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT Robert A. Dixon 4403 St. Clair Avenue Cleveland, Ohio 44103 ATTORNEYS FOR APPELLEE Barbara Langhenry City of Cleveland Law Director By: Jonathan L. Cudnik Assistant City Prosecutor Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cleveland Municipal Court
Case No. 2016 CRB 012663 BEFORE: Laster Mays, J., E.A. Gallagher, A.J., and Stewart, J.
ATTORNEY FOR APPELLANT
Robert A. Dixon
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
Barbara Langhenry
City of Cleveland Law Director By: Jonathan L. Cudnik
Assistant City Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113 ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant Janee Harris ("Harris") appeals her conviction for assault in violation of Cleveland Codified Ordinances 621.03. We affirm the trial court's decision.
I. Background
{¶2} This case arose from an incident occurring on June 22, 2016, involving Harris, her boyfriend ("D.C."), the mother of D.C.'s child ("L.J.), and the 11-year-old child. As a result of the incident, Harris was charged with assault and D.C. was charged separately with domestic violence, unlawful restraint, and child endangerment. On November 16, 2016, at the request of the assigned trial judge, the cases for Harris and D.C. were consolidated. Harris and D.C. were represented by the same attorney.
{¶3} Harris was not present at the December 8, 2016 pretrial hearing previously scheduled in D.C.'s case pre-consolidation. Counsel explained that he had not notified Harris of the hearing since the consolidation had only recently occurred. At the hearing, the trial court asked counsel whether there was a conflict of interest due to counsel's representation of both parties in the consolidated cases. Counsel responded that no conflict existed.
{¶4} A bench trial was conducted on January 17, 2017. Harris was found guilty and sentenced on February 16, 2017. Harris, who had no prior record, received a suspended sentence of 60 days at the Cleveland House of Corrections, and one year of community control supervision including anger management counseling.
II. Facts
{¶5} On June 22, 2016, victim L.J. and D.C. agreed to meet in a Cleveland parking lot so that D.C. could provide L.J. with funds for the child's field trip. The child was in the back seat of L.J.'s vehicle. Harris accompanied D.C. to the meeting location. L.J. testified that D.C. walked over to her vehicle, yanked the back door open, and was "yanking" or "yelling" at the child. (Tr. 40-41.)
{¶6} L.J. and D.C. exchanged unpleasantries. L.J. and Harris were already acquainted prior to Harris's involvement with D.C. Harris stood outside of D.C.'s vehicle on the passenger side, observing the argument that now included D.C.'s mother who had just arrived at the scene.
{¶7} Upon hearing L.J. tell D.C. that she did not give a "f*ck" about Harris, Harris began walking towards L.J.'s car. L.J. told Harris "do not walk up to my car." (Tr. 48.) Harris told L.J. that she was taking up for D.C., reached into the window and punched L.J. on the side of the face. L.J. left the parking lot and called her cousin who told her "you need to make a police report. Go back to the police station," L.J. then drove to the police station to file a report. (Tr. 49.) The child confirmed L.J.'s recitation of events. Harris exercised her constitutional right not to testify. After a guilty verdict by the trial court, Harris filed a timely appeal.
III. Assignment of Error
{¶8} Harris presents a single assigned error in this case: the trial court erred and denied Harris due process of law when the trial court failed to inquire into the issue of dual representation and potential conflict of interest by trial counsel. We find that the argument has no merit.
{¶9} Harris contends that the trial court had a duty of inquiry to determine whether a potential conflict existed and to resolve the issue prior to trial. Harris requests that this matter be remanded to the trial for a hearing on the issue of whether a conflict exists, following this court's decision in State v. Burton, 8th Dist. Cuyahoga No. 95150, 2011-Ohio-2516. The city argues that the trial court adequately addressed the issue of a potential conflict at the December 8, 2016 pretrial, though Harris was not present, where the trial court asked whether a conflict existed due to counsel's dual representation:
COURT: Are you representing both parties.
COUNSEL: Yes. Yes.
COURT: There is no conflict?
COUNSEL: No.
COURT: Okay. See Pretrial Transcript (Dec. 8, 2016), at p. 4.
{¶10} Harris's first appearance before the trial court was at the January 17, 2017 trial. The trial court asked Harris whether she was represented by the same counsel representing D.C. Harris responded affirmatively, there was no further discussion, and trial commenced.
{¶11} An appellant's right to counsel is guaranteed to be free from conflicts of interest by the Sixth Amendment to the United States Constitution. Parma v. Fonte, 8th Dist. Cuyahoga No. 99147, 2013-Ohio-3804, ¶ 68, citing State v. Dillon, 74 Ohio St.3d 166, 167, 657 N.E.2d 273 (1995).
{¶12} In reviewing a conflict of interest claim, we must resolve two distinct issues. First, we must determine whether the trial court had a duty to investigate the potential conflict of interest. State v. Ingol, 89 Ohio App.3d 45, 48, 623 N.E.2d 598 (1993), citing State v. Gillard, 64 Ohio St.3d 304, 595 N.E.2d 878 (1992), syllabus. If the duty to inquire did not arise, then we must determine whether an actual conflict occurred that adversely affected counsel's ability to represent the defendant. State v. Manross, 40 Ohio St.3d 180, 532 N.E.2d 735 (1988), syllabus; Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); State v. Gonzalez, 4th Dist. Athens No. 97CA52, 1998 Ohio App. LEXIS 5510, 5 (Nov. 18, 1998)
{¶13} The Ohio Supreme court recognized in Gillard, that
"[W]here a trial court knows or reasonably should know of an attorney's possible conflict of interest in the representation of a person charged with a crime, the trial court has an affirmative duty to inquire whether a conflict of interest actually exists. The duty to inquire arises not only from the general principles of fundamental fairness, but from the principle that where there is a right to counsel, there is a correlative right to representation free from conflicts of interest." "Where a trial court breaches its affirmative duty to inquire, a criminal defendant's rights to counsel and to a fair trial are impermissibly imperiled and prejudice or 'adverse effect' will be presumed."Burton, 8th Dist. Cuyahoga No. 95150, 2011-Ohio-2516, at ¶ 8, quoting Gillard at 311-312. See also Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Cuyler; and Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981).
{¶14} No duty of inquiry arises where the provision of separate trials significantly reduces the potential for a divergence in the defendants' interests. Gillard at 309-310, following Cuyler at 347-348. Additionally, where the defendant asserts a defense that neither he nor his codefendant was connected with the crime, the defendants' interests do not diverge. Id at 310, following Cuyler, supra; Gonzalez at 6.
{¶15} To demonstrate an actual conflict, a defendant must show a divergence of interests regarding a "'material factual or legal issue'" or to a course of action. Dillon, 74 Ohio St.3d at 169, 1995-Ohio-169, 657 N.E.2d 273, quoting Cuyler at 356, fn. 3 (Marshall, J., concurring in part and dissenting in part). If there is only a possibility that the interests "'may diverge at some point,'" there is a potential conflict. Dillon at 168, quoting Cuyler at 356, fn. 3 (Marshall, J., concurring in part and dissenting in part).
{¶16} Reviewing the facts in the instant case, we find that Harris's reliance on Burton is misplaced. Burton involves a guilty plea and defense counsel's subsequent motion to withdraw due to a possible conflict. During the withdrawal hearing, Burton's counsel advised the trial court that, while serving as a magistrate in a different municipality, he may have sentenced Burton in a prior case. The trial court denied Burton's motion without inquiring into the nature or extent of the conflict. This court remanded the matter to the trial court to determine "whether an actual conflict" existed and whether the conflict provided sufficient grounds for appellant to "withdraw his plea" which "was still pending" at the time that Burton's counsel notified the court of the possible conflict. Burton, 8th Dist. Cuyahoga No. 95150, 2011-Ohio-2516, at ¶ 14.
{¶17} In the instant case, the possibility of a conflict of interest was not brought to the attention of the trial court. As a matter of fact, the trial court initiated the inquiry. Counsel responded that there was no conflict. "Certainly, if defense counsel recognizes a potential conflict in [counsel's] representation of both clients, [counsel] should timely object to dual representation and move the court to withdraw from representing at least one of the two defendants." State v. Reese, 2d Dist. Clark No. 2001-CA-48, 2002-Ohio-937, 11. After all, an "attorney representing multiple defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial." Manross, 40 Ohio St.3d 180, 182, 532 N.E.2d 735, citing Holloway, 435 U.S. 475, 985 S.Ct. 1173, 55 L.Ed.2d 426.
{¶18} Trial commenced, and there was no objection at trial regarding a conflict of interest. Where no objection is raised to the trial court regarding the joint representation, appellant must demonstrate that an actual conflict of interest adversely affected his lawyer's performance. Cuyler, 446 U.S. at 348, 100 S.Ct. 1708, 64 L.Ed.2d 333, State v. Mitchell, 8th Dist. Cuyahoga No. 88131, 2007-Ohio-3896, ¶ 12.
{¶19} "'If a question of conflict of interest arises after trial, the defendant must prove an actual conflict of interest, as opposed to a serious potential for conflict.'" State v. West, 8th Dist. Cuyahoga No. 79404, 2002-Ohio-2242, ¶ 22, quoting Manross at 182. Harris has not directed this court to specific instances in the record that demonstrate a conflict of interest. Consequently, the trial court had no duty to inquire further. See State v. Soto, 8th Dist. Cuyahoga No. 94725, 2011-Ohio-785 (defendant's failure to identify any specific instance in the record demonstrating an actual conflict of interest that may have adversely affected his trial counsel's performance. Therefore, "the trial court had no duty to inquire about [defendant's] choice to engage the same attorney as his codefendant." Soto at ¶ 37.
{¶20} Harris's charge arises from walking to the victim's automobile, reaching into the car window, and punching L.J. The record reveals that Harris's conduct was separate and apart from the acts underlying the charges for D.C. "'A lawyer represents conflicting interests when, on behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.'" Dillon, 74 Ohio St.3d at 168, 657 N.E.2d 273, quoting Manross, 40 Ohio St.3d at 182, 532 N.E.2d 735. That was not the case here.
{¶21} Harris's sole assignment of error is overruled.
{¶22} Judgment of conviction is affirmed.
It is ordered that appellee recover of said appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. /s/_________
ANITA LASTER MAYS, JUDGE EILEEN A. GALLAGHER, A.J., and
MELODY J. STEWART, J., CONCUR