[Cite as State v. Chaney, 2012-Ohio-3101.]




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

STATE OF OHIO                                    :
                                                 :     Appellate Case No. 2011-CA-13
        Plaintiff-Appellee                       :
                                                 :     Trial Court Case No. 11-CR-110
v.                                               :
                                                 :
BOBBY J. CHANEY                                  :     (Criminal Appeal from
                                                 :     (Common Pleas Court)
        Defendant-Appellant                      :
                                                 :
                                              ...........

                                             OPINION

                                Rendered on the 6th day of July, 2012.

                                              ...........

JAMES D. BENNETT, Atty. Reg. #0022729, and ROBERT E. LONG, III, Atty. Reg.
#0066796, Miami County Prosecutor’s Office, Miami County Safety Building, Troy, Ohio
45373
      Attorneys for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. #0067020, and NICOLE RUTTER-HIRTH, Atty. Reg.
#0081004, 130 West Second Street, Suite 2150, Post Office Box 10126, Dayton, Ohio 45402
      Attorneys for Defendant-Appellant

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

FAIN, J.

                {¶ 1} Defendant-appellant Bobby J. Chaney appeals from his conviction and

sentence, following a no-contest plea, for Theft, in violation of R.C. 2913.02(A)(1), a felony
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of the fifth degree. Chaney contends that the trial court erred by overruling his pre-sentence

motion to withdraw his plea. We conclude that the trial court did not err. Chaney, who was

represented by different counsel, was accorded a hearing on his motion. Chaney presented

nothing at that hearing beyond his counsel’s bare allegation that: (1) Chaney’s counsel at the

plea hearing had a conflict of interest in that counsel was also representing Chaney’s wife; and

(2) Chaney was actually innocent of the charge.

               {¶ 2} On this record, we conclude that the trial court did not err in finding

that Chaney failed to establish ineffective assistance of counsel at the time of his plea, or

anything else beyond a mere change of heart, to support his motion to withdraw his plea.

Accordingly, the judgment of the trial court is Affirmed.



                                I. The Course of Proceedings

               {¶ 3} Chaney was charged, by a bill of information, with the Theft of $500 or

more, but less than $5,000, in violation of R.C. 2913.02(A)(1), a felony of the fifth degree. In

one proceeding, Chaney waived indictment and pled no contest to the charge.

               {¶ 4} During the plea hearing, when the subject of restitution came up,

Chaney conferred off the record with his attorney, following which his attorney represented to

the trial court that restitution had already occurred. The State did not dispute this.

               {¶ 5} When asked by the trial court whether his counsel had explained

everything to him and answered all his questions, and whether he was satisfied with his

counsel’s advice and competence, Chaney responded in the affirmative.

               {¶ 6} Chaney indicated that the State had agreed to a joint recommendation,
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       as to sentence, of community control sanctions. After a proper plea colloquy, the trial court

       accepted Chaney’s plea, and set the matter for sentencing. Chaney was ultimately sentenced

       to community control sanctions for three years.

                      {¶ 7} Before sentencing, new counsel was substituted, and Chaney moved to

       withdraw his plea. In his motion, Chaney argued simply that “his attorney had a conflict of

       interest when he represented the Defendant, which can be further elaborated at a hearing.”

       The motion to withdraw Chaney’s plea was accompanied by his own affidavit, in which he

       averred simply that he was innocent of the charge, wanted to exercise his right to a trial by

       jury, and that: “I now believe my attorney had a conflict of interest when he represented me.”

                      {¶ 8} At the hearing on the motion to withdraw Chaney’s plea, counsel was

       asked if he wished to present any testimony. Counsel indicated that he “would just like to

       make a brief statement regarding this matter.” The entirety of that statement was as follows:

              Your Honor as stated in our Motion, Mr. Chaney did have representation at his – when

       he entered his plea – at the time he entered his plea. He does at this time believe that there is

       a conflict involved with the attorney that represented both him and his wife. He, he would

       like to withdraw his plea. He had filed a motion on April 26th of this year, well before his

       sentencing date. We do understand that the Court has the ability to withdraw any pleas

       entered prior to sentencing time, if requested timely. Additionally, he does feel as though he

       should not have entered this plea at that time, that he is innocent of these charges, and he

       would like to pursue the matter in order to prove his innocence.

              {¶ 9} The trial court took the motion under advisement at the hearing. The trial

court’s subsequent entry overruling the motion concluded as follows:
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        The defendant was represented by experienced counsel at the plea hearing. He was

afforded a thorough hearing prior to entering his no contest plea. The judge who took the

plea advised the defendant of all of his valuable constitutional rights and thoroughly complied

with all of the requirements of Criminal Rule 11(C)(2). The court finds that the defendant’s

no contest plea was entered knowingly, intelligently and voluntarily and comports with the

due process rights of the defendant. At the hearing on the Motion to Vacate Plea, the

defendant did not offer any factual basis to support the naked assertion that he believed he was

innocent. Without more, this claim can only be treated as a “change of heart” and insufficient

as a basis to withdraw a no contest plea. The defendant also failed to provide evidence to

establish the asserted claim that his prior attorney had a conflict of interest.

{¶ 10} Chaney appeals from his conviction and sentence.



                   II. The Trial Court Did Not Err in Overruling

                        Chaney’s Motion to Withdraw his Plea.

{¶ 11} Chaney’s sole assignment of error is as follows:

        {¶ 12} “DENIAL OF APPELLANT’S MOTION TO VACATE HIS PLEA WAS AN

ABUSE OF DISCRETION AS APPELLANT’S COUNSEL HAD A CONFLICT OF

INTEREST IN HIS REPRESENTATION, DEPRIVING APPELLANT OF EFFECTIVE

ASSISTANCE OF COUNSEL DURING THE PLEA PROCEEDINGS, WHICH THE TRIAL

COURT FAILED TO CONSIDER IN OVERRULING THE MOTION.”

        {¶ 13} In support of his motion, Chaney asserts a number of facts that find no support

in the record. He contends that he and his wife were both subject to investigation, and “were
                                                                                              5


both accused of stealing league funds for personal use.” He asserts that “upon the advice of

counsel, [he] entered a plea, while his wife was never charged.” None of these facts is

established in the record of this appeal.

       {¶ 14} Chaney then argues that: “his counsel had competing interests in his

representation, namely he could not protect the interests of Appellant while also protecting the

interests of Appellant’s wife. Specifically, a conflict arose by advising Appellant to enter a

plea, which protected his wife, but was against Appellant’s interest and his claim of

innocence.” Again, the factual underpinning for this argument is not set forth in the record.

       {¶ 15} Even if Chaney had established that he and his wife were both accused of the

theft, we have held that the representation of a husband and wife by the same trial counsel

does not necessarily implicate the constitutional guarantee of the effective assistance of

counsel. State v. Booker, 63 Ohio App.3d 459, 464-466, 579 N.E.2d 264 (2d Dist. 1989).

       {¶ 16} But Chaney cannot establish, from this record, that he and his wife were both

accused of the theft, that he and his wife had a conflict of interest for purposes of

Prof.Cond.R. 1.7(a) – which discusses whether there is a substantial risk that the lawyer’s

ability to consider, recommend, or carry out an appropriate course of action for one client will

be materially limited by the lawyer’s responsibilities to another client – or that Chaney was

prejudiced, in his decision to plead no contest, by the fact that his attorney represented both

himself and his wife. Chaney’s answer to these defects in the record is that the trial court had

an affirmative duty to inquire whether a conflict of interest actually existed.

       {¶ 17} In support of his argument that the trial court erred by failing to inquire

concerning the possibility of a conflict of interest, Chaney first cites State v. Gillard, 64 Ohio
                                                                                             6


St.3d 304, 1992-Ohio-48, 595 N.E.2d 878. In that case, the trial court became aware, during

a trial, that the same attorney was representing both the defendant and a witness called for the

defense. The Supreme Court held that the trial court was under a duty to conduct an inquiry

to determine whether an actual conflict of interest existed. In the case before us, there was

nothing before the trial court at the time of the plea proceeding to suggest that a conflict of

interest existed. Chaney asserted, as a ground for withdrawing his plea, that there was a

conflict of interest. As the movant, he had a duty to establish that there was a conflict of

interest, and that it adversely affected his counsel’s performance. Furthermore, Chaney was

represented by new counsel when he moved to withdraw his plea, who could be expected to

advocate in support of the motion, unlike the defendant in State v. Gillard, who was

represented by the attorney with the alleged conflict of interest at the time when the issue

arose in the trial court.

        {¶ 18} Chaney also cites State v. Pelphrey, 149 Ohio App.3d 578, 2002-Ohio-5491,

778 N.E.2d 129 (1st Dist.). In that case, the court of appeals held that a trial court had erred

when it dismissed a motion to withdraw a guilty plea without holding a hearing on the

defendant’s claim that his counsel had a conflict of interest, and remanded the cause for a

hearing on his motion to withdraw his plea, at which the defendant would have the burden of

establishing the factual basis for his motion. Id., ¶ 18-19. In the case before us, the trial

court held a hearing on Chaney’s motion to withdraw his plea. Chaney failed to produce

evidence to establish that there was a conflict of interest, that he had not waived any conflict

of interest, or that the existence of a conflict of interest made his plea other than knowing and

voluntary – i.e., whether he was prejudiced by a conflict of interest.
                                                                                             7


       {¶ 19} Chaney cites State v. Manross, 40 Ohio St.3d 180, 532 N.E.2d 735 (1988), but

that case cuts against Chaney’s argument. The Supreme Court held that “a trial court is not

constitutionally mandated to inquire of criminal co-defendants whether they wish to be jointly

represented by the same counsel[,]” but that the “judgment will be reversed if an appealing

defendant shows that an actual conflict adversely affected counsel’s representation of said

defendant.” Id., at 40 Ohio St.3d 183. Under that holding, even if the trial court in this case

had been aware that Chaney and his wife were being jointly represented, it had no duty of

inquiry, and it was Chaney’s burden to establish, in post-trial or post-plea proceedings, that an

actual conflict of interest adversely affected his counsel’s representation of him. The trial

court correctly found that Chaney failed to meet this burden in the hearing on his motion to

withdraw his plea.

       {¶ 20} Chaney essentially claims that it was the trial court’s burden, through inquiry

at the hearing on his motion to withdraw his plea, to establish the factual predicates for that

motion. To the contrary, the trial court met any burden it may have had by according Chaney

a hearing on his motion, at which he was given the opportunity to present evidence in support

of his motion. It was then Chaney’s burden to present evidence in support of his motion. He

failed to do so, and the trial court properly overruled his motion.

       {¶ 21} Chaney’s assignment of error does not implicate the trial court’s rejection of

his claim of actual innocence. Without some evidence in support of that claim, we conclude

that the trial court properly regarded this claim as nothing more than a change of heart, which

we have previously held to be an insufficient ground, even for a pre-sentence motion to

withdraw a plea.     State v. Landis, 2d Dist. Montgomery No. 15099, 1995 WL 722990
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(December 6, 1995), at p. 3.

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



                                     III. Conclusion

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

trial court is Affirmed.

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

FROELICH and WILLAMOWSKI, JJ., concur.

(Hon. John R. Willamowski, Third District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio).


Copies mailed to:

James D. Bennett
Robert E. Long, III
Jon Paul Rion
Nicole Rutter-Hirth
Hon. Christopher Gee
