[Cite as State v. Hathaway, 2015-Ohio-5299.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      GREENE COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :  C.A. CASE NO. 2015-CA-11
                                                     :
 v.                                                  :  T.C. NO. 13CR285
                                                     :
 JOSEPH L. HATHAWAY                                  :  (Criminal appeal from
                                                     :   Common Pleas Court)
         Defendant-Appellant                         :
                                                     :
                                                ...........

                                               OPINION

              Rendered on the ___18th___ day of ____December____, 2015.

                                                ...........

ELIZABETH A. ELLIS, Atty, Reg. No. 0074332, Assistant Prosecutor, 61 Greene Street,
Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee

BRIAN A. MUENCHENBACH, Atty. Reg. No. 0088722, 200 W. Main Street, Eaton, Ohio
45320
      Attorney for Defendant-Appellant

                                               .............

DONOVAN, J.

        {¶ 1} Defendant-appellant Joseph L. Hathaway appeals from a decision of the

Greene County Court of Common Pleas denying his petition for post-conviction relief.

Hathaway filed his petition for post-conviction relief on August 26, 2014. The trial court

issued a decision and entry denying Hathaway’s petition on January 27, 2015.

Hathaway filed a timely notice of appeal with this Court on February 26, 2015.
                                                                                          -2-


       {¶ 2} On June 3, 2013, Hathaway was indicted for one count of complicity in the

commission of tampering with evidence, in violation of R.C. 2923.03(A)(2) and R.C.

2921.12(A)(1); one count of possession of hashish, in violation of R.C. 2925.11(A); one

count of possession of marijuana, in violation of R.C. 2925.11(A); one count of trafficking

in marijuana, in violation of R.C. 2925.03(A)(2); one count of permitting drug abuse, in

violation of R.C. 2925.13(B); one count of illegal assembly or possession of chemicals for

the manufacture of drugs, in violation of R.C. 2925.041; and one count of illegal cultivation

of marijuana, in violation of R.C. 2925.04(A), along with a firearm specification.

       {¶ 3} On June 21, 2013, Hathaway pled not guilty, and on August 21, 2013, he

filed a Motion to Suppress. A hearing was held on said motion on October 9, 2013. In

overruling Hathaway’s motion to suppress, the trial court issued a Judgment Entry on

January 13, 2014, which states that it reviewed Joint Exhibit 1, “a search warrant

requesting the use of a thermal imaging device to address heat signatures at 1490 South

Central Drive, Beavercreek, Greene County, Ohio,” and Joint Exhibit 2, which “reflects

the results of the use of the thermal imaging device which requested a search of the

subject residence and the seizure of evidence which is the basis of this case.” The South

Central Drive address is the home of Hathaway and his wife, Jennifer Bradshaw-

Hathaway. The Judgment Entry provides that the “parties agreed that the Court would

decide this case solely upon the warrant and affidavit finding that there was no need for

additional testimony or issues for the Court under the authority of Franks v. Delaware,

438 U.S. 154 (1978).” Ultimately, the trial court found that the search warrant was based

on probable cause and overruled Hathaway’s motion to suppress.

       {¶ 4} On March 12, 2014, Hathaway pled guilty to trafficking in marijuana, a felony
                                                                                          -3-


of the second degree, and illegal assembly or possession of chemicals for the

manufacture of drugs, a felony of the third degree.

       {¶ 5} On the same date, the trial court issued an “Entry and Order” which provides

in part that in accepting Hathaway’s pleas, the Court “has complied with Criminal Rule

11.” The March 12, 2014, transcript of the proceedings reflects that Jennifer Bradshaw-

Hathaway was present at the hearing and entered guilty pleas to complicity to tampering

with evidence, a felony of the third degree, and permitting drug abuse, a felony of the fifth

degree. The transcript reflects the following charges were dismissed against Bradshaw-

Hathaway: possession of hashish, possession of marijuana, trafficking in marijuana, and

illegal possession of chemicals for the manufacture of drugs. She and Hathaway were

both represented by the same attorney. After accepting the couple’s pleas, Hathaway

received an agreed sentence of five years. The trial court postponed disposition for

Bradshaw-Hathaway pending the completion of a pre-sentence investigation. Hathaway

subsequently filed notice of his direct appeal on April 11, 2014. Hathaway’s direct appeal

is currently pending before this Court under a separate appellate case number in Greene

App. No. 2014-CA-0013.

       {¶ 6} As previously mentioned, Hathaway filed his petition for post-conviction relief

on August 26, 2014. Hathaway attached only his own affidavit to the petition wherein he

stated the following:

       4) That throughout said representation, Attorney *** failed to inform me of

       the actual conflict of interest that existed as a result of the dual

       representation and that Attorney *** failed to request that I sign, and/or

       secure a conflict of interest waiver.
                                                                                        -4-


       {¶ 7} A hearing was held on Hathaway’s petition on December 17, 2014. The trial

court denied Hathaway’s petition in a decision issued on January 27, 2015.

       {¶ 8} It is from this decision that Hathaway now appeals.

       {¶ 9} Hathaway’s sole assignment of error is as follows:

       {¶ 10} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED MR.

HATHAWAY’S         PETITION   FOR     POST-CONVICTION         RELIEF     BECAUSE      MR.

HATHAWAY WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE

ASSISTANCE OF COUNSEL.”

       {¶ 11} In his sole assignment of error, Hathaway contends that the trial court

abused its discretion when it denied his petition for post-conviction relief. Specifically,

Hathaway argues that he received ineffective assistance of counsel because his trial

counsel represented both him and his wife, Bradshaw-Hathaway, thus creating a direct

conflict of interest.

       {¶ 12} Post-conviction relief is governed by R.C. 2953.21. The statute provides,

in pertinent part, that:

               Any person who has been convicted of a criminal offense * * * and

       who claims that there was such a denial or infringement of the person's

       rights as to render the judgment void or voidable under the Ohio

       Constitution or the Constitution of the United States, * * * may file

       a petition in the court that imposed sentence, stating the grounds for

       relief relied upon, and asking the court to vacate or set aside the judgment

       or sentence or to grant other appropriate relief. The petitioner may file a

       supporting affidavit and other documentary evidence in support of the claim
                                                                                          -5-


       for relief.

R.C. 2953.21(A)(1)(a).

       {¶ 13} “A post[-]conviction proceeding is not an appeal of a criminal conviction, but,

rather, a collateral civil attack on the judgment.” State v. Stefen, 70 Ohio St.3d 399, 410,

639 N.E.2d 67 (1994). See, also, State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679,

860 N.E.2d 77, ¶ 48. To prevail on a petition for post-conviction relief, the defendant

must establish a violation of his constitutional rights which renders the judgment of

conviction void or voidable. R.C. 2953.21.

       {¶ 14} We review the trial court’s denial of Hathaway’s petition for an abuse of

discretion. Gondor at ¶ 52. As the Supreme Court of Ohio determined:

               “Abuse of discretion” has been defined as an attitude that is

       unreasonable, arbitrary or unconscionable. (Internal citation omitted). It is

       to be expected that most instances of abuse of discretion will result in

       decisions that are simply unreasonable, rather than decisions that are

       unconscionable or arbitrary.

               A decision is unreasonable if there is no sound reasoning process

       that would support that decision. It is not enough that the reviewing court,

       were it deciding the issue de novo, would not have found that reasoning

       process to be persuasive, perhaps in view of countervailing reasoning

       processes that would support a contrary result.

AAAA Enterprises, Inc. v. River Place Community Redevelopment, 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990).

       {¶ 15} As this Court noted in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
                                                                                           -6-


2052, 80 L.Ed.2d 674 (1984), “the proper standard for attorney performance is that of

reasonably effective assistance. * * *.” Id., 466 U.S. at 687. “An error by counsel, even

if professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment. * * *.” Id., at 691. “It is not enough

for the defendant to show that the errors had some conceivable effect on the outcome of

the proceeding. * * *.” Id., at 693. The Strickland Court further noted, “[o]n the other

hand, we believe that a defendant need not show that counsel’s deficient conduct more

likely than not altered the outcome in the case.” Id. “The result of a proceeding can be

rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel

cannot be shown by a preponderance of the evidence to have determined the outcome.”

Id., at 694.   Finally, the Court in Strickland determined that to establish ineffective

assistance, “[t]he defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id.

       {¶ 16} Initially, we note that neither Hathaway nor his wife objected to their retained

counsel’s joint representation at any point during the proceedings before the trial court.

In order to establish a violation of the Sixth Amendment right to effective assistance of

counsel, a defendant who fails to object to joint representation at trial must demonstrate

that an actual conflict of interest adversely affected his lawyer’s performance. Cuyler v.

Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); State v. Manross,

40 Ohio St.3d 180, 532 N.E.2d 735 (1988).              An attorney representing multiple

defendants in criminal proceedings is in the best position professionally and ethically to
                                                                                              -7-


determine when a conflict of interest exists or will probably develop during the course of

the trial. Cuyler at 347. A reviewing court cannot presume that the mere possibility of

a conflict resulted in ineffective assistance of counsel. Manross at 182.             A possible

conflict of interest is inherent in almost all instances of joint or multiple representation.

The mere possibility of a conflict of interest is insufficient to impugn a criminal conviction.

Id. An actual conflict of interest must be shown. State v. Gillard, 78 Ohio St.3d 548,

552, 679 N.E.2d 276 (1997).

       {¶ 17} The term “conflict of interest” involves circumstances in which regard for

one duty tends to lead to disregard of another duty, such as when there is representation

of multiple clients with incompatible interests. Id. at 552-553. A possible conflict of

interest exists where the interests of the defendants may diverge at some point, so as to

place the attorney under inconsistent duties, but an actual conflict of interest is shown

where during the course of the representation the defendants’ interests do diverge with

respect to a material factual or legal issue or to a course of action.          Id.    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. Manross, 40 Ohio St.3d at 182,

532 N.E.2d at 738. In order to demonstrate an actual conflict of interest based upon

what an attorney has failed to do, a defendant must demonstrate that some plausible

alternative defense strategy or tactic that has sufficient substance to be at least viable

might have been pursued but was not undertaken due to the attorney’s conflicting

loyalties or interests. Gillard, 78 Ohio St.3d at 553, 679 N.E.2d 276.

       {¶ 18} Hathaway asserts that an actual conflict existed with trial counsel’s joint

representation because “it was in his interest and the interest of his wife/co-defendant to
                                                                                        -8-


deny all knowledge and involvement and testify against each other because of the nature

of the charges.” Hathaway also argues that he and his wife “were to be the prosecution’s

primary witnesses against each other.” Lastly, Hathaway argues that his trial counsel

never discussed the issue of spousal privilege with either himself or his wife.

Accordingly, Hathaway asserts that he was placed under the impression by his trial

counsel that he would be obligated to testify against his wife/co-defendant.

      {¶ 19} At the hearing on his petition for post-conviction relief, Hathaway testified

that the only reason he pled guilty was because his trial counsel informed him that if he

did not accept the plea, he would have to testify against his wife, and she would go to

prison. Hathaway also testified that he only met with his trial counsel once at his office.

Hathaway testified that all other meetings with trial counsel were conducted by phone or

when they were scheduled to appear in court. Hathaway testified that his wife was

present for every conversation he had with their trial counsel. Hathaway conceded at

the hearing that he never even considered testifying against his wife, even if the case had

gone to trial. Hathaway also admitted that he would never have filed the petition for post-

conviction relief had he been sentenced to community control and not sent to prison.

Hathaway also acknowledged that at the plea hearing, he expressly stated that he was

satisfied with his trial counsel’s performance. Nevertheless, Hathaway asserts their trial

counsel possessed a conflict of interest because of his dual representation of the couple.

       {¶ 20} Bradshaw-Hathaway also testified at the post-conviction relief hearing.

Similar to her husband’s testimony, Bradshaw-Hathaway testified that she and Hathaway

were both always present for every conversation had with their trial counsel, confirming

that their trial counsel never met with them individually. However, Bradshaw-Hathaway
                                                                                            -9-


testified that while she and her husband spoke with their trial counsel several times, they

also met with him approximately three to four times at his office. Significantly, although

she was present with her husband for all of their meetings, Bradshaw-Hathaway testified

that she never heard their trial counsel advise Hathaway that he would have to testify

against her if he did not take the plea deal offered by the State, thereby undermining

Hathaway’s claim that he somehow entered his guilty plea under duress or based upon

misinformation. Bradshaw-Hathaway also testified that she was never advised by trial

counsel that she would have to testify against her husband. Simply put, Bradshaw-

Hathaway’s testimony contradicted some of the primary assertions made by her husband

in his petition for post-conviction relief, and in his testimony at the hearing. We note that

Bradshaw-Hathaway testified that trial counsel advised her that if she did not accept the

plea deal, she would likely be sent to prison rather than receive community control.

       {¶ 21} In light of the inconsistencies between the testimony of Hathaway and his

wife, the trial court found his petition for post-conviction relief to be without merit. By all

accounts, trial counsel was able to negotiate plea deals for Hathaway and his wife that

were beneficial to each of them considering the offenses for which they had been

charged. Furthermore, the trial court found Hathaway’s testimony at the post-conviction

relief hearing lacking in credibility and factual support. We must defer to the trial court’s

finding as to credibility. While the better course of action would have been for trial

counsel to ask Hathaway and his wife to sign a conflict of interest waiver, the record

before us does not support Hathaway’s claim that any actual conflict existed. Nor does

it support a conclusion that counsel misstated to Hathaway the law on spousal privilege.

Thus, the trial court did not abuse its discretion when it denied Hathaway’s petition for
                                                                                      -10-


post-conviction relief finding that he failed to adduce any evidence to support his claim

that he received ineffective assistance.

       {¶ 22} Hathaway’s sole assignment of error is overruled.

       {¶ 23} Hathaway’s sole assignment of error having been overruled, the judgment

of the trial court is affirmed.

                                       ..........

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Elizabeth A. Ellis
Brian A. Muenchenbach
Hon. Stephen A. Wolaver
