[Cite as State v. Burton, 2011-Ohio-2516.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95150




                                     STATE OF OHIO
                                                   PLAINTIFF-APPELLEE

                                             vs.

                               CLARENCE BURTON
                                                   DEFENDANT-APPELLANT




                                 JUDGMENT:
                           REVERSED AND REMANDED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                           Case No. CR-529936

     BEFORE: Celebrezze, J., Blackmon, P.J., and E. Gallagher, J.

    RELEASED AND JOURNALIZED:               May 26, 2011
ATTORNEYS FOR APPELLANT

Robert Tobik
Cuyahoga County Public Defender
BY: Nathaniel McDonald
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Brian R. Radigan
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113


FRANK D. CELEBREZZE, JR., J.:

     {¶ 1} Appellant, Clarence Burton, appeals from the denial of his

presentence motion to withdraw his guilty plea to one count of drug

trafficking with schoolyard specification and one count of having a weapon

while under disability. After a thorough review of the record and law, we

reverse and remand.
      {¶ 2} Appellant was indicted along with co-defendant, Mitchell Greer,

on October 15, 2009.       Appellant faced charges of drug trafficking with

firearm and schoolyard specifications, drug possession, having a weapon

while under disability, tampering with evidence, and possession of criminal

tools; all with forfeiture specifications. On April 21, 2010, as part of a plea

agreement, appellant agreed to plead guilty to an amended indictment of

drug trafficking with forfeiture and schoolyard specifications and having a

weapon while under disability, both third-degree felonies.     As part of the

plea, the state did not make a sentencing recommendation, but left it up to

the discretion of the trial court.

      {¶ 3} At the request of appellant’s counsel, the trial court ordered a

presentence investigation report and withheld sentence until May 12, 2010.

On that date, appellant orally moved to withdraw his plea at the sentencing

hearing before sentence was imposed. Appellant claimed that he was under

the impression he would receive probation, but realized that was not going to

occur after he was remanded while awaiting sentence. He also claimed he

had pled guilty to charges of which he was not guilty. The trial court held a

brief hearing on this motion where the state had an opportunity to respond.

Following this, appellant’s counsel addressed an issue that appellant had

raised in a letter to the attorney. Counsel stated:
      {¶ 4} “I would like to put on the record, your Honor, that apparently

Mr. Burton — at one point Mr. Burton was — and when I was originally

assigned the case I was reviewing Mr. Burton’s record. And it was indicated

on his record that at some point he appeared in Garfield Heights Municipal

Court on the charge of driving under suspension. And I brought it to his

attention that I may or may not have been — I don’t remember, and I’m not

sure if he does either — I may or may not have been the sentencing

magistrate or acting judge that sentenced him on that case. I made him

aware of that.

      {¶ 5} “I asked him if he had a problem with me representing him.

This was at the natural pretrial stage. He indicated that at that point he

had to [sic] problem with me representing him. I don’t know if his opinion

has changed on that, but in his letter he mentions that. And I just wanted to

put on the record that I discussed that matter with him thoroughly, and he

indicated that he had no problem with me representing him at the beginning

of the case.”

      {¶ 6} The trial court denied appellant’s oral motion and proceeded with

sentencing.     Appellant received a two-year term of incarceration for each

count, to be served concurrently; was ordered to forfeit various cell phones, a

gun, and money; and was informed of postrelease control. Appellant then

timely filed the instant appeal, raising four assignments of error.
                              Law and Analysis

                             Conflict of Interest

      {¶ 7} Appellant first argues that “[t]he trial court, in violation of

appellant’s Sixth Amendment right to counsel under the United States

Constitution and Ohio law, failed to inquire into the nature and extent of a

conflict of interest between appellant and his counsel.”

      {¶ 8} The Sixth Amendment to the United States Constitution

guarantees that representation shall be free from conflicts of interest. State

v. Dillon, 74 Ohio St.3d 166, 1995-Ohio-169, 657 N.E.2d 273. In State v.

Gillard, 64 Ohio St.3d 304, 1992-Ohio-48, 595 N.E.2d 878, the Ohio Supreme

Court recognized “where a trial court knows or reasonably should know of an

attorney’s possible conflict of interest in the representation of a person

charged with a crime, the trial court has an affirmative duty to inquire

whether a conflict of interest actually exists. The duty to inquire arises not

only from the general principles of fundamental fairness, but from the

principle that where there is a right to counsel, there is a correlative right to

representation free from conflicts of interest.” “Where a trial court breaches

its affirmative duty to inquire, a criminal defendant’s rights to counsel and to

a fair trial are impermissibly imperiled and prejudice or ‘adverse effect’ will

be presumed.” Id. at 311-312. See, also, Holloway v. Arkansas (1978), 435

U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426; Cuyler v. Sullivan (1980), 446 U.S.
335, 100 S.Ct. 1708, 64 L.Ed.2d 333; and Wood v. Georgia (1981), 450 U.S.

261, 101 S.Ct. 1097, 67 L.Ed.2d 220.

      {¶ 9} A possibility of a conflict exists if the “interests of the defendants

may diverge at some point so as to place the attorney under inconsistent

duties.” Sullivan at 348. A trial court must determine whether an actual

conflict of interest exists when the court learns of or should have learned of a

potential conflict between defendants and their counsel. See State v. Kelly,

Cuyahoga App. Nos. 91875 and 91876, 2010-Ohio-432.

      {¶ 10} In a Mandamus case dealing with a court’s failure to inquire into

a possible conflict of interest, the Supreme Court determined that “‘an actual

conflict of interest’ meant precisely a conflict that affected counsel’s

performance — as opposed to a mere theoretical division of loyalties.”

Mickens v. Taylor (2002), 535 U.S. 162, 171, 122 S.Ct. 1237, 152 L.Ed.2d 291.

      {¶ 11} Here, appellant apparently raised the issue in a letter written to

trial counsel prior to sentencing. This letter does not appear in the record

before us, but appellant’s counsel brought it to the court’s attention.

Appellant’s attorney had possibly been a magistrate or sentencing judge in

appellant’s municipal court traffic case several years prior.          Appellant

complains that the court did not inquire into the nature or extent of the

conflict.   While appellant’s attorney indicated that appellant waived any

conflict, after a possible conflict is brought to the court’s attention, such a
waiver must be made on the record in open court.        See State v. Johnson

(1980), 70 Ohio App.2d 152, 160, 435 N.E.2d 429.

      {¶ 12} The court did not explain any implications or obtain a waiver of

any potential conflict on the record. The court did nothing other than move

on with sentencing, stating, “I will note for the record that there is no

evidence before this court that counsel has done anything but represent you

highly competently and zealously as counsel and appeared on your behalf at

all pretrials; and discovery was ongoing and completed pursuant to the

discovery rules.”

      {¶ 13} While there is little to suggest a conflict existed that would

prevent counsel from adequately representing appellant’s interests, the trial

court did not inquire further, discuss any potential ramifications, or obtain a

waiver on the record. At oral arguments, appellant advanced the theory that

because his attorney was a former judge, he could reasonably rely on a

representation by the attorney that he would receive probation in this case.

Had the trial court simply asked appellant any questions regarding this

perceived conflict, this court could point to it and the plea colloquy, where

appellant indicated no promise regarding sentencing was made, and found

that the trial court satisfied its duty to inquire as set forth in Johnson and

overrule the error. The trial court’s failure to do so was error. “Once that

duty arises, however, the failure of a trial court to further inquire into a
possible conflict does not lead to a reversal of a defendant’s conviction.

Rather, it results in a remand to the trial court for that court to conduct a

hearing to determine whether there was an actual conflict of interest.” State

v. Terry, Summit App. No. 23205, 2007-Ohio-1259, ¶12, citing Wood at

272-274.    Because that was not done, reluctantly, this case must be

remanded.

      {¶ 14} On remand the trial court should make such an inquiry to

determine whether an actual conflict exists.         The trial court should then

determine anew if this presents sufficient grounds for appellant to withdraw

his plea based on the potential conflict since appellant’s motion to withdraw

his plea was still pending when appellant’s counsel informed the trial court of

the alleged conflict.   This holding renders appellant’s remaining assigned

errors moot, and they will not be addressed.1

      This cause is reversed and remanded to the lower court for further

proceedings consistent with this opinion.

      It is ordered that appellant recover of said appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.


      1  These assigned errors state: “The trial court, in violation of appellant’s
rights under the United States and Ohio Constitutions, abused its discretion when
it refused to allow appellant to withdraw his guilty plea prior to sentencing without
holding a meaningful hearing[ ]”; “[t]he trial court violated appellant’s
Constitutional right to conflict-free representation under United States v. Cronic
and Ohio law[ ]”; and “[i]neffective assistance of counsel due to failure to request
waiver of or object to court costs for an indigent defendant.”
     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.



FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
