[Cite as State v. Chambliss, 2011-Ohio-3574.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 91272




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                      DANTAE CHAMBLISS, ET AL.
                                                      DEFENDANTS-APPELLANTS




                                JUDGMENT:
                          REVERSED AND REMANDED



                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-500664
     BEFORE: Keough, J., Boyle, P.J., and S. Gallagher, J.

     RELEASED AND JOURNALIZED: July 21, 2011

ATTORNEYS FOR APPELLANTS

For Dantae Chambliss and James Bennett

Mark B. Marein
Steven L. Bradley
Michael E. Stepanik
Marein & Bradley
222 Leader Building
526 Superior Avenue
Cleveland, OH 44114

For Travis Sanders

Gregory Scott Robey
Robey & Robey
14402 Granger Road
Maple Heights, OH 44137

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Thorin O. Freeman
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

      {¶ 1} This appeal is before this court on remand from the Ohio Supreme

Court.

      {¶ 2} In State v. Chambliss, Cuyahoga App. No. 91272, 2008-Ohio-5285

(Chambliss I), defendants-appellants, Dantae Chambliss, James Bennett, and

Travis Sanders, appealed the trial court’s judgments removing their respective

counsel, remanding them to the county jail, and ordering them to retain new

counsel.

      {¶ 3} This court set forth the facts and procedural history in Chambliss

I as follows:

      {¶ 4} “Appellants were indicted on several drug-related offenses, and

each retained his own attorney. The charges carried mandatory prison time.

All three appellants posted the bonds that were set for them, and were

released pending trial. Appellants filed various pretrial motions, including

motions to compel production of the search warrant affidavit and to unseal it,

motions to suppress, and motions to disclose the identity of a confidential and

reliable informant. These motions [were] never ruled on.

      {¶ 5} “The record reflects that the State did not want to reveal the

identity of the informant in this case and, therefore, was hesitant to permit

the search warrant affidavit to be unsealed. As a result of these concerns, the

State and appellants reached a compromise whereby appellants would plead
guilty to amended counts of the indictment which did not carry mandatory

prison time, the identity of the informant would not be revealed, and the

search warrant would not be unsealed. As part of the plea agreement, the

State agreed to recommend a community control sanction at sentencing for

Sanders and two-year sentences for Chambliss and Bennett.

      {¶ 6} “The trial judge assigned to the case was unavailable on the day of

the plea, and the plea was taken by another judge. The plea journal entry on

behalf of Sanders states that ‘[t]he state recommends community control

sanctions and should the sentencing court choose to impose a prison term, the

state has no objection to withdrawal of the pleas.’ The plea journal entries on

behalf of Chambliss and Bennett state that the ‘[r]ecommended sentence by

the state is 2 years[;] no objection by the state to withdraw the plea should the

court choose to impose a harsher sentence.’ On the date set for sentencing,

the trial court refused to accept the agreement between the State and the

defense, and the docket reflects that appellants then orally moved to withdraw

their pleas. These oral requests were granted on March 27, 2008 and the

court set the matter for trial on April 8, 2008 at 9:00 a.m.

      {¶ 7} “On April 8, the day set for trial, in addressing some preliminary

issues, Bennett’s attorney indicated that the search warrant affidavit had not

yet been ordered unsealed and, as a result, if required to proceed to trial

without the necessary information to which he was entitled, he would be
ineffective as counsel within the meaning of the Sixth Amendment.             In

response, the court ordered removal of all three of appellants’ attorneys,

ordered appellants to retain new counsel within ten days, verbally ordered the

appellants’ bonds revoked, by judgment entry ordered the appellants

remanded to the county jail, and refused former counsels’ requests to be heard

on the record on behalf of their clients.” Id., ¶2-5.

       {¶ 8} On appeal, appellants challenged the trial court’s judgments

removing their counsel and remanding them to jail. This court vacated the

trial court’s remand order but, in light of the Ohio Supreme Court’s decision in

State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176, 631 N.E.2d 119,

held that the trial court’s order directing the unilateral removal of appellants’

retained counsel was not a final, appealable order and, accordingly, dismissed

the appeal as to that issue. Id., ¶18.

       {¶ 9} The Ohio Supreme Court accepted jurisdiction to examine the

issue of whether the denial of retained counsel of choice is a final, appealable

order. State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785, 947 N.E.2d

651.   The Court found that several years after its decision in Keenan, the

United States Supreme Court considered the effect of a trial court’s erroneous

deprivation of a criminal defendant’s choice of counsel in United States v.

Gonzalez-Lopez (2006), 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409, and

held that “the erroneous denial of counsel of choice is a structural error that
occurs at the very moment counsel is removed,” entitling the defendant to an

automatic reversal of his conviction.    Id., ¶23.   Hence, the Ohio Supreme

Court held that a pretrial ruling disqualifying a criminal defendant’s retained

counsel of choice is a final order, subject to immediate appeal, under the

three-prong test for determining whether an order is final and appealable

under R.C. 2505.02(B)(4): 1    (1) the order grants or denies a provisional

remedy; (2) the order determines the action with respect to the provisional

remedy and prevents a judgment in favor of the appealing party with respect

to the provisional remedy; and (3) the order renders a postconviction appeal

ineffective or meaningless. Id., ¶22 and 27.

      {¶ 10} The Supreme Court therefore reversed this court’s judgment and

remanded the matter for further proceedings on the merits of the appeal.

Accordingly, we now consider the merits of appellants’ claim, i.e., whether the

trial court’s judgment removing appellants’ retained counsel was error. The

State takes no position on the merits of appellants’ claim.

      {¶ 11} We review for an abuse of discretion. State v. Keenan, 81 Ohio

St.3d 133, 137, 1998-Ohio-459, 689 N.E.2d 929. A court abuses its discretion

when its decision is unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.



      Enacted after Keenan.
      1
      {¶ 12} As this court found in Chambliss I, the trial court unilaterally

removed appellants’ retained counsel “without request of either party, without

notice and without opportunity to be heard, rendering the appellants under

indictment, remanded to jail without bond, and wholly without counsel.” Id.,

¶13. Such action was indeed an abuse of discretion.

      {¶ 13} Appellants’ assignment of error is sustained.    The trial court’s

judgment removing defense counsel is reversed and the matter is remanded

for further proceedings consistent with this opinion.

      Reversed and remanded.

      It is ordered that appellants recover from appellee 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

common pleas 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.




KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
