State v. Baskin

• Decision Date: 28 May 2019
• Docket Number: NO. 1-18-23,1-18-23
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Deandre T. BASKIN, Defendant-Appellant.
• Court: Ohio Court of Appeals

137 N.E.3d 613

2019 Ohio 2071

STATE of Ohio, Plaintiff-Appellee,

v.Deandre T. BASKIN, Defendant-Appellant.

NO. 1-18-23

Court of Appeals of Ohio, Third District, Allen County.

Date of Decision: May 28, 2019

F. Stephen Chamberlain, Lima, for Appellant.

Jana E. Emerick, Lima, for Appellee.

ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Deandre T. Baskin ("Baskin"), appeals the April 19, 2018 judgment entry of sentence of the Allen County Court of Common Pleas. For the reasons that follow, we affirm.

{¶2} This case stems from an incident on December 3, 2017 during which Baskin trespassed in the residence of the victim, T.H., caused her physical harm, and prevented her from leaving or contacting law enforcement. In particular, when T.H. returned to her residence the evening of the incident, Baskin jumped out of a bedroom closet and punched her in the face. To escape Baskin, T.H. told him that she needed to go to the Dollar Tree store to purchase bandages for the injury she sustained to her leg during their scuffle. While at the Dollar Tree store, T.H. was eventually able to escape from Baskin by leaving him at the store. Baskin and T.H., who share a child, have a history of domestic disputes. Because of that history, T.H. had a protection order in effect against Baskin.

{¶3} On January 11, 2018, the Allen County Grand Jury indicted Baskin on four counts: Count One of aggravated burglary in violation of R.C. 2911.11(A)(1), (B), a first-degree felony; Count Two of abduction in violation of R.C. 2905.02(A)(2), (C), a third-degree felony; Count Three of domestic violence in violation of R.C. 2919.25(A), (D)(3), a fourth-degree felony; and Count Four of violating a protection order in violation of R.C. 2919.27(A)(1), (B)(3)(c), a fifth-degree felony. (Doc. No. 3). Baskin appeared for arraignment on January 19, 2018 and entered pleas of not guilty. (Doc. No. 10).

{¶4} On February 28, 2018, the State filed a notice of its intent to use "other acts evidence" under Evid.R. 404(B). (Doc. No. 48).

{¶5} On March 2, 2018, the State filed a motion requesting that the trial court issue an arrest warrant for T.H. as a material witness. (Doc. No. 60). The trial court issued a warrant on March 5, 2018 for T.H.'s arrest as a material witness. (Doc. No. 62).

{¶6} After a jury trial on March 5-6, 2018, Baskin was found guilty of the counts in the indictment. (Doc. Nos. 64, 65, 66, 67); (Mar. 5-6, 2018 Tr., Vol. II, at 364-368). On April 18, 2018, the trial court sentenced Baskin to 10 years in prison on Count One, 24 months in prison on Count Two, 12 months in prison on Count Three, and 12 months in prison on Count Four. (Doc. No. 73). The trial court further ordered Baskin to serve the sentences consecutively for an aggregate term of 14 years in prison. (Id. ).

{¶7} On April 30, 2018, Baskin filed a notice of appeal and he raises four assignments of error for our review. (Doc. No. 75).

Assignment of Error No. I

The Defendant Made a Request for New Counsel and Discussed Self Representation. The Court's Denial of Both Requests is a Violation of the Defendant's Fundamental Constitutional Rights Under Section 10, Article I of the Ohio Constitution ; Sixth and Fourteenth Amendments to the United States Constitution

{¶8} In his first assignment of error, Baskin argues that the trial court erred by denying his request for substitute trial counsel and his request to represent himself. In particular, Baskin contends that it was error for the trial court to consider the "time and effort[s]" of the jury over his right to counsel or to act as his own counsel.

Standard of Review

{¶9} "The decision whether to remove court-appointed counsel and allow substitution of new counsel is within the sound discretion of the trial court; its decision will not be reversed on appeal absent an abuse of discretion." State v. Stein , 3d Dist. Mercer No. 10-17-13, 2018-Ohio-2345, 2018 WL 3026049, ¶ 19, citing State v. Murphy , 91 Ohio St.3d 516, 523, 747 N.E.2d 765 (2001). Similarly, "[w]e review for an abuse of discretion a trial court's denial of a request to proceed pro se asserted after voir dire was complete." State v. Kramer , 3d Dist. Defiance No. 4-15-14, 2016-Ohio-2984, 2016 WL 2853587, ¶ 8, citing State v. Owens , 9th Dist. Summit No. 25389, 2011-Ohio-2503, 2011 WL 2040991, ¶ 17, citing State v. Vrabel , 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 51-53. An abuse of discretion suggests that a decision is unreasonable, arbitrary, or unconscionable. State v. Adams , 62 Ohio St.2d 151, 157-158, 404 N.E.2d 144 (1980).

Substitute-Counsel Analysis

{¶10} "An indigent defendant does not have a right to choose a particular attorney; rather, such a defendant ‘has the right to professionally competent, effective representation.’ " Stein at ¶ 20, quoting State v. Evans , 153 Ohio App.3d 226, 2003-Ohio-3475, 792 N.E.2d 757, ¶ 30 (7th Dist.), citing Murphy at 523, 747 N.E.2d 765 (noting that an indigent defendant must show "good cause" to warrant substitution of counsel). " ‘Competent representation does not include the right to develop and share a "meaningful attorney-client relationship" with one's attorney.’ " Id. , quoting State v. Gordon , 149 Ohio App.3d 237, 2002-Ohio-2761, 776 N.E.2d 1135, ¶ 12 (1st Dist.). "In order for the court to discharge a court-appointed attorney, ‘ "the defendant must show a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant's right to effective assistance of counsel." ’ " Id. , quoting State v. Henness , 79 Ohio St.3d 53, 65, 679 N.E.2d 686 (1997), quoting State v. Coleman , 37 Ohio St.3d 286, 525 N.E.2d 792 (1988), paragraph four of the syllabus. "That said, the right to counsel must be balanced against the trial court's authority to control its docket, as well as its awareness that a ‘demand for counsel may be utilized as a way to delay the proceedings or trifle with the court.’ " Id. , quoting United States v. Krzyske , 836 F.2d 1013, 1017 (6th Cir.1988), and citing State v. Lawson , 8th Dist. Cuyahoga No. 97018, 2012-Ohio-1050, 2012 WL 907913, ¶ 24. See also State v. Jones , 91 Ohio St.3d 335, 342, 744 N.E.2d 1163 (2001) (stating that, among the "[f]actors to consider in deciding whether a trial court erred in denying a defendant's motion to substitute counsel include ‘the timeliness of the motion’ "), quoting United States v. Jennings , 83 F.3d 145, 148 (6th Cir.1996).

{¶11} Here, Baskin's request for substitute counsel was neither supported by good cause nor made timely. Specifically, during the second day of trial, Baskin made the following outburst in open court after his trial counsel finished cross-examining Detective Steven Stechschulte, Jr. ("Detective Stechschulte") of the Lima Police Department:

[Baskin's Trial Counsel]: No further questions.

[The Trial Court]: Redirect, please.

[Baskin]: Tom Lucente, Jr. I fire you. You're fired.

* * *

[Baskin]: And it’s at this time that I ask to be appointed another attorney.

(Mar. 5-6, 2018 Tr., Vol. II, at 214). Outside of the presence of the jury, Baskin further informed the trial court, "I have the right to another attorney, Sir. I don't want this [sic], because he's working with the State." (Id. at 215). Baskin also stated that his trial counsel was "not working for" him because he gave "him questions to ask [Detective Stechschulte] and he just refuses them, questions that are pertinent" and because he did "not subpoena[ the witnesses] that [he] asked him to do." (Id. at 217-218, 227).

{¶12} Baskin's stated reason for requesting substitute counsel midway through trial fails to demonstrate how his attorney-client relationship suffered a breakdown in communication or cooperation of such magnitude that warranted substitution of counsel. See Coleman , 37 Ohio St.3d 286, 525 N.E.2d 792, at paragraph four of the syllabus (stating that, in order to demonstrate good cause, "the defendant must show a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant's right to effective assistance of counsel."); State v. Coleman , 2d Dist. Montgomery No. 19862, 2004-Ohio-1305, 2004 WL 540927, ¶ 31. See also State v. Evans , 153 Ohio App.3d 226, 2003-Ohio-3475, 792 N.E.2d 757, ¶ 31 (7th Dist.) ("There must be a legitimate reason for the defendant's lack of confidence in the attorney because good cause for dismissal cannot be determined solely according to the subjective standard of what the defendant perceives."), citing State v. Julious , 4th Dist. Scioto No. 96CA2409, 1996 WL 718262, *2 (Dec. 5, 1996). Indeed, "[m]erely because appointed counsel's trial tactics or approach may vary from that which appellant views as prudent is not sufficient to warrant the substitution of counsel." State v. Glasure , 132 Ohio App.3d 227, 239, 724 N.E.2d 1165 (7th Dist.1999). See also Stein at ¶ 29 (" ‘Defendant and trial counsel's failure to ‘see eye to eye’ regarding trial strategy is an insufficient basis for removal of appointed counsel.’ "), quoting State v. Hill , 8th Dist. Cuyahoga No. 105554, 2018-Ohio-279, 2018 WL 565484, ¶ 11, and citing State v. Crew , 8th Dist. Cuyahoga No. 86943, 2006-Ohio-4102, 2006 WL 2300184, ¶ 17 ("Hostility, tension, or personal conflict between an attorney and a client that do not interfere with the preparation or presentation of a competent defense are insufficient to justify the withdrawal of appointed counsel.").

{¶13} Moreover, Baskin's substitute-counsel request—made on the second day of trial—was not timely. Compare Coleman , 2004-Ohio-1305, at ¶ 32 (concluding that Coleman's "request for new counsel, coming at the start of the second day of his trial, was ill-timed"). See State v. Spencer , 10th Dist. Franklin No. 16AP-444, 2017-Ohio-1140, 2017 WL 1162425, ¶ 9 (concluding that Spencer's substitute-counsel request was not timely because "[i]t occurred the morning of trial"). In other words, it was not error for the trial court to consider the time and efforts of the jury when evaluating Baskin's substitute-...