State v. Moore
| Decision Date | 03 May 2012 |
| Docket Number | No. 95106.,95106. |
| Citation | 970 N.E.2d 1098,2012 -Ohio- 1958 |
| Parties | STATE of Ohio, Plaintiff–Appellee v. John MOORE, Jr., Defendant–Appellant. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Jonathan N. Garver, Cleveland, OH, for Appellant.
William D. Mason, Cuyahoga County Prosecutor by Kristin Karkutt, Assistant Prosecuting Attorney, Cleveland, OH, for Appellee.
BEFORE: CELEBREZZE, J., STEWART, P.J., and ROCCO, J.
{¶ 1} Appellant, John Moore, Jr., appeals from his convictions and the sentence imposed after his retrial on charges of aggravated robbery and kidnapping with firearm specifications. After a careful review of the record and relevant case law, we affirm in part and reverse and remand in part. 1
{¶ 2} This court originally reviewed the circumstances that led to appellant's convictions in State v. Moore, 8th Dist. No. 78751, 2002 WL 664104 (Ohio App.2002) (“ Moore I ”). The state presented evidence at jury trial alleging that appellant and his accomplice, Lamar Chaney, gained entrance to the Hard Rock Cafe in Cleveland on May 21, 2000. Once inside, the men entered the inner office and ordered manager Tammi Minoski to open the restaurant's safe. Minoski testified that one of the men, later identified as Chaney, held a “shiny gun” to her head as she emptied the safe. While Minoski was putting the money into appellant's duffel bag, Chaney took Hard Rock Cafe employee Lexi Halitsky into the office and tied her up with duct tape. When Minoski finished with the safe, appellant tied her up with duct tape and placed her in the office with Halitsky. Once Minoski and Halitsky were secured in the office, the two men left the restaurant with approximately $14,00
{¶ 3} On June 8, 2000, appellant was indicted on the following charges: Count 1, aggravated robbery with firearm specifications; Counts 2 and 3, kidnapping with firearm specifications; and Count 4, having a weapon while under disability. On September 11, 2000, the jury trial commenced. At the conclusion of the trial, the jury returned verdicts of guilty on Counts 1, 2, and 3, and the firearm specifications attached thereto. Appellant was sentenced to ten years on each of the base counts and three years on the firearm specifications. Appellant was ordered to serve an aggregate prison term of 33 years.
{¶ 4} In Moore I, appellant raised eight assignments of error, including denial of his constitutional rights to effective assistance of counsel, self-representation, due process, and a fair trial, as well as denial of his right to confrontation. This court affirmed appellant's convictions, but found that the trial court violated appellant's right to due process when it failed to make a finding that the consecutive sentences imposed were not disproportionate to the offenses. Thus, appellant's sentence was reversed, and his case was remanded for resentencing.
{¶ 5} In January 2003, the Ohio Supreme Court denied appellant's request for leave to appeal, thus, appellant's case returned to the trial court for resentencing. The record reflects the trial court conducted the resentencing in 2005 via video “teleconference” over appellant's objection to that procedure. After appellant received the same sentence as originally imposed, he appealed the trial court's order of sentence.
{¶ 6} In State v. Moore, 8th Dist. No. 86244, 2006-Ohio-816, 2006 WL 439961 (“ Moore II ”), this court reversed appellant's sentence once again, holding that he had a constitutional and statutory right to be physically present in court. On remand from that decision, the trial court again sentenced appellant to a total term of 33 years on May 23, 2006.
{¶ 7} While Moore II was pending before this court, appellant petitioned the federal district court for a writ of habeas corpus, alleging that four constitutional violations occurred during his original trial. In Moore v. Haviland, 476 F.Supp.2d 768 (N.D.Ohio 2007) (“ Moore III ”), the district court agreed with appellant's first claim. The district court decided that, although appellant had asserted his right to self-representation at his trial in a timely manner, the trial court unconstitutionally denied him the right by failing to address appellant's assertion. In essence, Moore III held that the trial court's lack of attention to the matter could not be excused. The district court further held that Moore I had misapplied United States Supreme Court precedent in finding that appellant had waived the issue. The district court concluded its decision by ordering as follows: “[P]etitioner shall be released from custody unless the State of Ohio commences a new trial against him within 120 days after this judgment becomes final.”
{¶ 8} The warden, however, appealed the judgment of the federal district court. Moore III was subsequently affirmed by the United States Sixth Circuit Court of Appeals in Moore v. Haviland, 531 F.3d 393 (6th Cir.2008) (rehearing and rehearing en banc denied).
{¶ 9} The warden then filed a petition for writ of certiorari. In light of this action, the federal district court issued a stay of its decision in Moore III, pending a determination on the warden's petition. Moore v. Haviland, 607 F.Supp.2d 867 (N.D.Ohio 2009).
{¶ 10} On October 5, 2009, the United States Supreme Court denied the petition for a writ of certiorari. Welch v. Moore, ––– U.S. ––––, 130 S.Ct. 92, 175 L.Ed.2d 234 (2009). Subsequently, the district court lifted the stay on its decision in Moore III. By this time, Moore II's original order had been pending for nearly three years.
{¶ 11} On October 21, 2009, the Cuyahoga County Court of Common Pleas issued a journal entry stating, in pertinent part:
This court has learned this date that this case has been reversed by the Sixth Circuit of the United States Court of Appeals and * * * has to be tried within 25 days * * *.
Defendant is ordered returned * * * for a pre-trial conference on 11–02–09 [at] 9:00 a.m. and trial is scheduled for [Monday,] 11–9–09[at] 9:00 a.m.
{¶ 12} On November 5, 2009, appellant appeared in court and stated that he would not waive his right to counsel or his right to a speedy trial. During the hearing, the Public Defender's Office cited a conflict and declined to represent appellant in this matter. The case was referred for reassignment. Between November 6 and November 9, 2009, appellant met with approximately eight separate attorneys. None of the attorneys were able to represent him due to time constraints. Based on appellant's failure to obtain legal counsel, the Ohio Attorney General filed a motion for extension of time with the federal district court.
{¶ 13} On November 10, 2009, attorney Rufus Sims was appointed to represent appellant. On that date, the federal district court granted the Ohio Attorney General's motion for extension of time and continued appellant's trial date for 30 days.
{¶ 14} On November 19, 2009, attorney Sims filed a motion for enlargement of time for trial with the federal district court. On November 25, 2009, the trial court set a trial date for December 8, 2009, pending the federal district court's decision on attorney Sims's motion.
{¶ 15} The case was called to trial on December 8, 2009. On that date, it was learned that the federal district court granted attorney Sims's motion for extension of time, and appellant's trial was rescheduled to January 18, 2010. Appellant objected to the extension of time, and the following day appellant fired attorney Sims after a heated altercation occurred on the record.
{¶ 16} On December 14, 2009, the trial court appointed the State Public Defender's Office to represent appellant. Trial commenced on April 1, 2010. After the jury was selected, appellant elected to exercise his constitutional right to self-representation. At the conclusion of the trial, appellant was found guilty on all counts,2 including the one-and three-year firearm specifications. The court sentenced appellant to ten years on each count, to run concurrently to each other, and three years for the gun specifications, for an aggregate sentence of 33 years.
{¶ 17} In this timely appeal, appellant raises 15 assignments of error for review.
{¶ 18} In his first assignment of error, appellant argues that his due process rights and the right to counsel were denied because the trial court failed to make adequate inquiry into appellant's dissatisfaction with court-appointed counsel.
{¶ 19} In State v. Deal, 17 Ohio St.2d 17, 244 N.E.2d 742 (1969), the Ohio Supreme Court held that when an accused raises a specific complaint regarding his dissatisfaction with counsel during the course of the trial, the trial court has an obligation to ensure that the record contains an adequate investigation of the complaint before continuing with the trial. Id. at 19–20, 244 N.E.2d 742. “The right to counsel is important enough that in a situation such as this a reviewing court should have sufficient information in the record to determine whether a claim of inadequate counsel is justified.” Once a defendant makes the requisite showing, the trial court's failure to appoint new counsel “amounts to a denial of effective assistance of counsel.” State v. Pruitt, 18 Ohio App.3d 50, 57, 480 N.E.2d 499 (8th Dist.1984).
{¶ 20} “The decision whether or not to remove court appointed counsel and allow substitution of new counsel is addressed to the sound discretion of the trial court, and its decision will not be reversed on appeal absent an abuse of discretion.” Id. “The term ‘abuse of discretion’ implies that the court's attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 21} In the instant case, appellant appeared in court with attorney Sims for the first time on November 16, 2009. During the hearing, the following statements were made:
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