[Cite as State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785.]




      THE STATE OF OHIO, APPELLEE, v. CHAMBLISS ET AL., APPELLANTS.
       [Cite as State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785.]
Appellate procedure — Final orders — Removal of retained counsel of criminal
        defendant.
    (No. 2008-2251 — Submitted March 1, 2011 — Decided April 19, 2011.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 91272,
                                    2008-Ohio-5285.
                                  __________________
                               SYLLABUS OF THE COURT
A pretrial ruling removing a criminal defendant’s retained counsel of choice is a
        final order subject to immediate appeal.
                                  __________________
        LUNDBERG STRATTON, J.
        {¶ 1} Today, this court must decide whether the denial of retained
counsel of choice prior to trial in a criminal case is a final, appealable order. As a
general matter, we first caution that this case is limited to the issue of removal of
retained counsel of choice.        The issue of whether the removal of appointed
counsel is a final, appealable order may involve different considerations that have
not been briefed in this case. We leave that issue for another day.
        {¶ 2} Further, we are examining only the issue of whether the denial of
retained counsel of choice is a final, appealable order. The merits of the trial
court’s decision in removing retained counsel of choice in this case are not before
us. Because we hold that the denial of retained counsel of choice in a criminal
proceeding is a final, appealable order, we reverse the judgment of the court of
appeals and remand the cause to the court of appeals for further proceedings on
the merits of the appeal.
                             SUPREME COURT OF OHIO




                          Facts and Procedural History
        {¶ 3} Dantae Chambliss, James Bennett, and Travis Sanders, defendants-
appellants, were indicted on several drug-related offenses.         Each defendant
retained his own attorney, pleaded not guilty, and filed a request for discovery.
Several pretrials were held and continued.
        {¶ 4} Each defendant filed a motion to compel production of a search
warrant affidavit and a motion for discovery. Each defendant filed at least one
motion to continue trial based on denial of access to the requested affidavit, which
remained sealed. In addition, each defendant filed a motion to suppress evidence
and a motion for a trial separate from the other defendants. After the defendants’
motions for separate trials were denied, they filed motions to continue based on
the fact that they had not yet received the search warrant affidavit despite repeated
requests.
        {¶ 5} All three defendants pleaded guilty. A few weeks later, when the
trial court refused to accept the agreement between the state and defense,
defendants moved to withdraw their pleas. The trial court vacated the pleas of all
three defendants, set trial, and granted a motion to unseal the search warrant
affidavit.
        {¶ 6} It is unclear from the record whether or when the search warrant
affidavit was unsealed, but during a hearing on the day of trial, it became clear
that the attorneys had not yet received the search warrant affidavit, and they
claimed that if they were required to proceed to trial without the necessary
information, they would be ineffective as counsel within the meaning of the Sixth
Amendment. The trial court removed all three retained counsel, remanded all
three defendants to the custody of the sheriff, ordered all three defendants to
retain new counsel in less than two weeks, and set trial for the following month.
        {¶ 7} The defendants’ retained attorneys filed a motion with the court of
appeals to stay execution of the order pending appeal and attached their affidavits.



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The Cuyahoga County Court of Appeals stayed execution of the trial court’s order
pending appeal, vacated the trial court’s order remanding Chambliss, Bennett, and
Sanders to jail, affirmed that the bonds remained in effect, and released the
defendants. On appeal, the Cuyahoga County Court of Appeals vacated the trial
court’s remand order but concluded that the removal of retained counsel of choice
was not a final and appealable order. Accordingly, the court dismissed the appeal
as to that issue.
          {¶ 8} The case is now before this court pursuant to a discretionary
appeal.
                                      Analysis
                                    R.C. 2505.02
          {¶ 9} R.C. 2953.02 provides for appellate review of the judgment or
final order of a trial court in a criminal case. R.C. 2505.02 defines whether a
particular order is final and appealable:
          {¶ 10} “(B) An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of the following:
          {¶ 11} “* * *
          {¶ 12} “(4) An order that grants or denies a provisional remedy and to
which both of the following apply;
          {¶ 13} “(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the
appealing party with respect to the provisional remedy.
          {¶ 14} “(b) The appealing party would not be afforded a meaningful or
effective remedy by an appeal following final judgment as to all proceedings,
issues, claims, and parties in the action.”
                           Three-Part Test for Final Order
          {¶ 15} In State v. Muncie (2001), 91 Ohio St.3d 440, 446, 746 N.E.2d
1092, this court described the analysis for determining whether a decision



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granting or denying a provisional remedy is a final order: “R.C. 2505.02(B)(4)
now provides that an order is a ‘final order’ if it satisfies each part of a three-part
test: (1) the order must either grant or deny relief sought in a certain type of
proceeding—a proceeding that the General Assembly calls a ‘provisional
remedy,’ (2) the order must both determine the action with respect to the
provisional remedy and prevent a judgment in favor of the appealing party with
respect to the provisional remedy, and (3) the reviewing court must decide that the
party appealing from the order would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues,
claims, and parties in the action.”
                           Meaningful or Effective Remedy
       {¶ 16} The state concedes that the removal of retained counsel meets the
first two prongs of the analysis. Therefore, the only question before us is whether
a postconviction appeal in this instance would be effective and meaningful. The
court of appeals noted the quandary.          By asserting that this is not a final,
appealable order, it said, the state was left in a position where, should it obtain a
conviction at trial, that conviction would be subject to automatic reversal.
Further, defendants could not lose, since they would either win the case or it
would be reversed due to structural error. 2008-Ohio-5285, 2008 WL 4531965, ¶
15. Noting the waste of judicial resources, the appellate court still held that this
court’s decision in State ex rel. Keenan v. Calabrese (1994), 69 Ohio St.3d 176,
631 N.E.2d 119, warranted a conclusion that the order removing appellants’
retained counsel was not a final, appealable order. We now conclude that it is a
final, appealable order.
       {¶ 17} In Keenan, we held that a pretrial order granting disqualification of
counsel in a criminal case is not a final, appealable order, id. at 178, because “[a]n
appeal following conviction and sentence would be neither impractical nor
ineffective since any error in granting the motion would, in certain circumstances,



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be presumptively prejudicial,” id. at 179, citing Flanagan v. United States (1984),
465 U.S. 259, 268, 104 S.Ct. 1051, 79 L.Ed.2d 288. However, Keenan was
decided before R.C. 2505.02(B)(4) was in existence.
       {¶ 18} Moreover, several years after this court’s per curiam decision in
Keenan, the United States Supreme Court considered the issue and held that the
“erroneous deprivation of the right to counsel of choice, ‘with consequences that
are necessarily unquantifiable and indeterminate, unquestionably qualifies as
“structural error.” ’ ” United States v. Gonzalez-Lopez (2006), 548 U.S. 140, 150,
126 S.Ct. 2557, 165 L.Ed.2d 409, quoting Sullivan v. Louisiana (1993), 508 U.S.
275, 282, 113 S.Ct. 2078, 124 L.Ed.2d 182. This is because “[d]ifferent attorneys
will pursue different strategies with regard to investigation and discovery,
development of the theory of defense, selection of the jury, presentation of the
witnesses, and style of witness examination and jury argument. And the choice of
attorney will affect whether and on what terms the defendant cooperates with the
prosecution, plea bargains, or decides instead to go to trial. In light of these
myriad aspects of representation, the erroneous denial of counsel bears directly on
the ‘framework within which the trial proceeds,’ [Arizona v.] Fulminante [(1991),
499 U.S. 279] at 310 [111 S.Ct. 1246, 113 L.Ed.2d 302]—or indeed on whether it
proceeds at all.” Id. at 150. Thus, the erroneous deprivation of a defendant’s
choice of counsel entitles him to an automatic reversal of his conviction.
       {¶ 19} The state argues that in addition to this court’s decision in Keenan,
Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288,
controls. Flanagan held that a district court’s pretrial disqualification of defense
counsel in a criminal prosecution was not immediately appealable. However, just
like Keenan, Flanagan was decided prior to Gonzalez-Lopez, which clearly holds
that the erroneous deprivation of the right to counsel of choice qualifies as
structural error. When Keenan was decided, the erroneous denial of retained
counsel was presumptively prejudicial. However, in Gonzalez-Lopez, the United



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States Supreme Court went further to conclude that the erroneous denial of the
right to retained counsel of choice constitutes structural error, which would mean
that the court of appeals would automatically reverse the conviction. Gonzalez-
Lopez, 548 U.S. at 148,126 S.Ct. 2557, 165 L.Ed.2d 409.
        {¶ 20} As the court in Gonzalez-Lopez held, “It is impossible to know
what different choices the rejected counsel would have made, and then to quantify
the impact of those different choices on the outcome of the proceedings. Many
counseled decisions, including those involving plea bargains and cooperation with
the government, do not even concern the conduct of the trial at all. Harmless-error
analysis in such a context would be a speculative inquiry into what might have
occurred in an alternative universe.” Id. at 150.
                         Chambliss, Bennett, and Sanders
        {¶ 21} In the case at bar, the trial court ordered that all three retained
counsel be removed as counsel and remanded defendants to the custody of the
sheriff. The court of appeals concluded that the order removing counsel was not a
final, appealable order, thus potentially forcing the defendants to run the gauntlet
of trial twice.
        {¶ 22} A postconviction reversal of the trial court’s judgment would not
be automatically effective.     A criminal defendant might exhaust his or her
resources during the first trial, thereby denying that defendant the counsel of his
or her choice. Further, if counsel of choice were later deemed to have been
erroneously removed, the subject matter of the first trial, including the strategy
employed, witnesses cross-examined, etc., would be stale and likely weakened.
This, in addition to the waste of scarce judicial resources, satisfies the third prong
of R.C. 2505.02(B)(4)—rendering a postconviction appeal ineffective or
meaningless—and compels a conclusion that a pretrial ruling disqualifying a
criminal defendant’s retained counsel of choice is a final order, subject to
immediate appeal.



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                                     Conclusion
       {¶ 23} Not every issue in a criminal case is subject to an interlocutory
appeal. Moreover, not every trial court decision to remove retained counsel will
be found to have been erroneous. However, because the United States Supreme
Court has held that the erroneous denial of counsel of choice is a structural error
that occurs at the very moment counsel is removed, an immediate appeal to avoid
a potential retrial is practical and warranted.
       {¶ 24} The dissent in Keenan captured the depth of the issue:
       {¶ 25} “A post-conviction appeal does not offer Keenan an adequate
remedy at law, nor does it suit an orderly and efficient judicial system.
       {¶ 26} “The question of Keenan’s right to the counsel of his choice is
necessarily most critical prior to the beginning of his trial. A post-conviction
appeal may offer a remedy, but not an adequate one—the choice of counsel is
fundamental and impacts the entirety of the case.” (Emphasis sic.) Keenan, 69
Ohio St.3d at 180, 631 N.E.2d 119 (Pfeifer, J., dissenting).
       {¶ 27} We hold that a pretrial ruling removing a criminal defendant’s
retained counsel of choice is a final order, subject to immediate appeal.
Therefore, we reverse the judgment of the court of appeals and remand the cause
to the court of appeals for further proceedings consistent with this opinion.
                                                                 Judgment reversed
                                                               and cause remanded.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, CUPP, and
MCGEE BROWN, JJ., concur.
                               __________________
       William D. Mason, Cuyahoga County Prosecuting Attorney, and Thorin
Freeman, Assistant Prosecuting Attorney, for appellee.
       Marein & Bradley and Steven L. Bradley, for appellant Dantae Chambliss.
       Marein & Bradley and Mark B. Marein, for appellant James Bennett.



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Robey & Robey and Gregory Scott Robey, for appellant Travis Sanders.
                  ______________________




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