[Cite as State v. Stephenson, 2014-Ohio-670.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                     :

                 Plaintiff-Appellee,               :
                                                                     No. 13AP-609
v.                                                 :             (C.P.C. No. 13CR-02-679)

Beau Stephenson,                                   :          (ACCELERATED CALENDAR)

                 Defendant-Appellant.              :




                                            D E C I S I O N

                                    Rendered on February 25, 2014


                 Ron O'Brien, Prosecuting Attorney, and Laura R. Swisher, for
                 appellee.

                 Javier H. Armengau, for Stephenson.

                   APPEAL from the Franklin County Court of Common Pleas

McCORMAC, J.
        {¶ 1} Defendant-appellant, Beau Stephenson, appeals from an order of the
Franklin County Court of Common Pleas granting a motion filed by the state seeking
disqualification of Stephenson's defense counsel in the underlying criminal case.
        {¶ 2} Stephenson is currently awaiting trial pursuant to his indictment on charges
arising from the murder of Christopher Manley on January 28, 2013. Disqualification of
his privately retained trial counsel, attorney Javier H. Armengau, by the trial court is
based upon dual representation by attorney Armengau of Stephenson and Stephenson's
girlfriend, Cassandra Pack, who is also implicated in the murder.
        {¶ 3} The facts and procedural history of the case are not unduly complicated. On
January 28, 2013, Christopher Manley was shot and killed in his home in Columbus. On
No. 13AP-609                                                                           2

February 8, 2013, the Franklin County Grand Jury indicted Stephenson on an array of
charges arising out of this crime: aggravated robbery, kidnapping, aggravated murder,
murder, attempted murder, all with firearm specifications, tampering with evidence, and
having a weapon while under disability. Attorney Armengau entered his appearance on
behalf of Stephenson on February 11, 2013, and Stephenson was arraigned on
February 15, 2013. Stephenson has been incarcerated since his arrest.
       {¶ 4} Prior to the murder, Stephenson had another brush with the law. On
December 3, 2012, he was a passenger in a vehicle driven by Cassandra Pack. After a
traffic stop, police found narcotics on Pack and arrested her and charged her with a
misdemeanor count of drug abuse. The same search pursuant to a traffic stop yielded a
syringe in Stephenson's possession, leading to misdemeanor charges of possession of
paraphernalia. Attorney Armengau, already representing Stephenson in the murder case,
entered an appearance on February 27, 2013 on behalf of Pack in her drug case. After
further lab analyses, Pack was indicted on two felony counts of drug possession on
April 23, 2013.
       {¶ 5} In the interval between this initial criminal episode and the subsequent
indictment for murder, Stephenson attempted to cooperate with investigating officers on
other matters. Accounts differ on whether Stephenson formally became a confidential
police informant, but he undoubtedly met with police several times to provide
information, and on some of these occasions Pack was present.
       {¶ 6} Ultimately, investigators learned that not only Stephenson but also Pack
had a role in Manley's murder. According to the state's information, on the day of the
murder, Pack drove Stephenson to Manley's trailer home, where he robbed Manley of
drugs and money, then fatally shot him. Pack thereafter drove Stephenson to a hotel, got
a room for him in her name and, after leaving Stephenson at the hotel, went to retrieve
new clothing for him from their home. Thereafter, Pack drove Stephenson to help him
dispose of evidence from the shooting. All of this information was obtained directly from
Pack through police interviews in which she admitted her involvement with Stephenson
and her participation in his activities on the day of the murder.
       {¶ 7} The state moved to disqualify attorney Armengau from Stephenson's
defense on May 15, 2013, based upon his dual representation of Stephenson and Pack and
No. 13AP-609                                                                                 3

the strong likelihood of a conflict due to their adverse interests arising out of their alleged
respective roles in the murder. The trial court granted the motion, and Stephenson brings
the following assignment of error:
              THE TRIAL COURT ABUSED ITS DISCRETION IN
              DETERMINING THAT A CONFLICT OF INTEREST
              EXISTED THAT WOULD PRECLUDE DEFENSE COUNSEL
              FROM REPRESENTING APPELLANT IN THE CASE
              BELOW.

       {¶ 8} One aspect of the constitutional right to effective assistance of trial counsel
is a presumptive right to employ counsel of the defendant's choosing. Powell v. Alabama,
287 U.S. 45, 53 (1932); Chandler v. Fretag, 348 U.S. 3, 9 (1954). This right to choice of
counsel is rooted in part upon the inevitable reality that the criminal defendant is the one
to suffer the consequences if the defense fails. Faretta v. California, 422 U.S. 806, 819-
20 (1975). The defendant's right to oppose disqualification of his chosen counsel is
therefore rooted in the constitutional guarantee of effective assistance of trial counsel:
              The Sixth Amendment to the United States Constitution
              guarantees that a criminal defendant shall have the assistance
              of counsel for his defense. [Wheat v. U.S., 486 U.S. 153, 158
              (1988).] The "aim of the Amendment is to guarantee an
              effective advocate for each criminal defendant rather than to
              ensure that a defendant will inexorably be represented by the
              lawyer whom he prefers." Id. There is a presumptive right to
              employ one's own counsel. [State v. Keenan, 81 Ohio St.3d
              133, 137 (1998).] That presumption may be overcome by a
              showing of an actual or serious potential for conflict. Id.,
              citing Wheat.

State v. Crosky, 10th Dist. No. 06AP-655, 2008-Ohio-145, ¶ 25.
       {¶ 9} "A pretrial ruling removing a criminal defendant's retained counsel of
choice is a final order subject to immediate appeal." State v. Chambliss, 128 Ohio St.3d
507, 2011-Ohio-1785, syllabus. "[T]he standard of review for determining whether the
court erred in its pretrial disqualification of defense counsel is whether it abused its broad
discretion." State ex rel. Keenan v. Calabrese, 69 Ohio St.3d 176, 180 (1994). " ' "The
likelihood and dimensions of nascent conflicts of interest are notoriously hard to
predict." ' " Crosky at ¶ 24, quoting Serra v. Michigan Dept. of Corr., 4 F.3d 1348, 1354
(6th Cir.1993), quoting Wheat v. U.S., 486 U.S. 153, 162-63 (1988). In keeping with this
No. 13AP-609                                                                               4

deferential standard of review, we examine the trial court's determination with an eye
towards the trial court's superior ability to ascertain the context in which the ruling was
made. Crosky at ¶ 24.
       {¶ 10} There is no dispute that some dual representation occurred here. In
addition to continuously representing Stephenson commencing with the date of the
murder indictment on February 8, 2013, attorney Armengau filed a notice of appearance
in Pack's misdemeanor drug case on February 27, 2013. Only after the state filed its
motion for disqualification on May 15, 2013 did attorney Armengau move to voluntarily
withdraw from representation of Pack. We note ab initio that Stephenson cannot rely on a
waiver executed by Pack purporting to waive her objections to any prejudice resulting
from dual representation. Pack did not execute the waiver until a month after the trial
court's ruling on the motion to disqualify. The trial court did not have the opportunity to
consider it, and we decline to do so in the first instance.
       {¶ 11} Because attorney Armengau withdrew from representation of Pack, the
potential for conflict here arises not from ongoing and concurrent dual representation but
from successive dual representation. "Thus, the situation was one of successive, not joint,
representation. Successive representation occurs when counsel has previously
represented a co-defendant or witness. McFarland v. Yukins (C.A.6, 2004), 356 F.3d 688,
701, citing Moss v. U.S. (C.A.6, 2003), 323 F.3d 445, 459. Successive representation may
give rise to an actual conflict of interest. Moss, at 459; U.S. v. Culp (M.D.Fla., 1996), 934
F.Supp. 394, 397-398." Crosky at ¶ 27.
       {¶ 12} Stephenson now asserts that mere multiple representation will not support
an order preventing a criminal defendant from retaining counsel of his choice. Indeed,
such representation does not invariably pose the risk of conflict of interest and thus
compromise the prospect of a fair trial. Holloway v. Arkansas, 435 U.S. 475, 482-83
(1978). Thus, the presumption of the defendant's right to employ his chosen counsel may
be overcome only by demonstration of actual conflict or potential for conflict. Keenan, 81
Ohio St.3d at 137. There must more than a mere theoretical division of loyalties. State v.
Hunter, 1st Dist. No. C-090569, 2012-Ohio-2859, ¶ 53.
       {¶ 13} Stephenson stresses that the risk of conflict is less clear-cut in successive
representation cases: "Simultaneous and successive representation differs materially
No. 13AP-609                                                                                   5

because in the latter, the attorney is no longer beholden to the former client." State v.
Jones, 5th Dist. No. 2007-CA-00041, 2008-Ohio-1068, ¶ 77.               As such, successive
representation does not give rise to the same presumption of prejudice as simultaneous
representation. Id., citing Gillard v. Mitchell, 445 F.3d 883, 891 (6th Cir.2006). That is
not to say, however, that such multiple representation does not present any risk of
conflict:
                A conflict of interest may arise in a successive representation
                situation where (1) counsel's earlier representation of the
                witness or co-defendant was substantially and particularly
                related to counsel's later representation of defendant; or (2)
                counsel actually learned particular confidential information
                during the prior representation of the witness or co-defendant
                that was relevant to defendant's case.

Crosky at ¶ 27, citing Enoch v. Gramley, 70 F.3d 1490, 1496 (7th Cir.1995).
       {¶ 14} The authorities presented by Stephenson on appeal are, for the most part,
distinguishable as they involved post-conviction proceedings in which a criminal
defendant was denied a choice of counsel or affected by an alleged conflict of interest on
the part of counsel. In the present, the trial court was presented with the rather different
problem of anticipating potential conflict. As such, the trial court's ruling is inherently
preemptive and cannot be tested by evidence of actual conflict. We must determine
whether the trial court abused its discretion in ascertaining the probability of conflict. On
the present facts, we find no such abuse of discretion on the part of the trial court.
       {¶ 15} While     Stephenson    now    argues   that   attorney   Armengau,        in   his
representation of Pack, learned nothing from her that would not eventually be learned by
the police in the course of investigation, this addresses only the peripheral aspects of the
alleged conflict.   As the state points out, there is a substantial possibility, if not a
probability, that given Pack's admitted conduct on the day of the murder she could be
charged with murder on a complicity theory. Pack will likely be, at the least, a key witness
for the prosecution in the case against Stephenson, where she will be subject to cross-
examination by her own former counsel.
       {¶ 16} "The fear in successive representation cases is that the lawyer will fail to
cross-examine the former client rigorously for fear of revealing or misusing privileged
information."     Moss v. U.S., 323 F.3d 445, 460 (6th Cir.2003). The attorney may "be
No. 13AP-609                                                                            6

tempted to use confidential information to impeach the former client; or * * * may fail to
conduct a rigorous cross-examination for fear of misusing his confidential information."
U.S. v. Agosto, 675 F.2d 965, 971 (8th Cir.1982).        "When an attorney attempts to
represent his client free of compromising loyalties, and at the same time preserve the
confidences communicated by a present or former client during representation in the
same or a substantially related matter, a conflict arises." Id.
       {¶ 17} Stephenson's sole assignment of error is overruled, and the judgment of the
Franklin County Court of Common Pleas is affirmed.
                                                                     Judgment affirmed.

                          DORRIAN and O'GRADY, JJ., concur.

              McCORMAC, J., retired, of the Tenth Appellate District,
              assigned to active duty under authority of Ohio Constitution,
              Article IV, Section 6(C).
