[Cite as State v. Whittaker, 2017-Ohio-7286.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                HARDIN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 6-16-12

        v.

JAMIE LEA WHITTAKER,                                      OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Hardin County Common Pleas Court
                            Trial Court No. CR 20162126

                                      Judgment Affirmed

                            Date of Decision: August 21, 2017




APPEARANCES:

        Todd A. Workman for Appellant

        Jason M. Miller for Appellee
Case No. 6-16-12



SHAW, J.

       {¶1} Defendant-appellant, Jamie Whittaker (“Whittaker”), brings this appeal

from the December 1, 2016, judgment of the Hardin County Common Pleas Court

sentencing Whittaker to an aggregate 60-month prison term after she was convicted

of various drug offenses. On appeal, Whittaker argues that the trial court erred by

denying her the “counsel of her choice” and by denying her request for a

continuance of the trial date.

                      Relevant Facts and Procedural History

       {¶2} On August 19, 2016, Whittaker was indicted in a 17-count indictment

alleging various drug offenses as follows: three counts of Possession of Dangerous

Drugs in violation of R.C. 4729.51(C)(3)/4729.99(H), all felonies of the fifth degree

(Counts 1, 13, 15); three counts of Sale of Dangerous Drugs in violation of R.C.

4729.51(C)(2)/4729.99(E)(1), all felonies of the fourth degree (Counts 2, 14, 16);

two counts of Possession of Drugs (Suboxone) in violation of R.C.

2925.11(A)/(C)(2)(a), both felonies of the fifth degree (Counts 3, 11); two counts

of Trafficking in Suboxone in violation of R.C. 2925.03(A)(2)/(C)(2)(a), both

felonies of the fifth degree (Counts 4, 12); three counts of Aggravated Possession

of Oxycodone in violation of R.C. 2925.11(A)/(C)(1)(a), all felonies of the fifth

degree (Counts 5, 7, 9); three counts of Aggravated Trafficking in Oxycodone in

violation of R.C. 2925.03(A)(2)/(C)(1)(a), all felonies of the fourth degree (Counts

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6, 8, 10); and one count of Possessing Criminal Tools in violation of R.C.

2923.24(A), a felony of the fifth degree (Count 17). Counts 1, 2, and 13-16 also

alleged the penalty enhancement that Whittaker had a prior conviction for

Permitting Drug Abuse.1 Whittaker pled not guilty to the charges.

        {¶3} On October 3, 2016, Whittaker filed a motion to suppress alleging that

the affidavit supporting a search warrant to search her room where the drugs were

found was not supported by probable cause. A hearing was held on that motion and

Whittaker’s motion was ultimately overruled.

        {¶4} Whittaker’s case proceeded to a jury trial where the evidence indicated

that a search of her room was conducted pursuant to a warrant and that the search

uncovered Suboxone strips, Promethazine, Oxycodone, and 40 mg Nexium

(prescription strength), none of which she had a prescription for. Over $24,000 in

cash was also located in Whittaker’s room, and there were indications that the drugs

were packaged for sale in Whittaker’s room. During a prior search of another

residence, law enforcement officers found Whittaker with pills, money, and a

“ledger” detailing initials of various people and dollar amounts owed. Evidence

was also presented that Whittaker had a prior drug offense.

        {¶5} Based on the evidence presented, the jury convicted Whittaker of all 17

counts against her. Whittaker’s case then proceeded to sentencing, where the trial


1
  A forfeiture specification was also included indicating that Whittaker was found to have $24,162.38 and
that it was proceeds derived from or acquired through the commission of felony offenses.

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court merged a number of the offenses and the State elected to proceed to sentence

Whittaker on Counts 2, 4, 6, 16, and 17. For Count 2, Sale of Dangerous Drugs

(Promethazine), Whittaker was sentenced to serve 14 months in prison, for Count

4, Trafficking in Suboxone, Whittaker was ordered to serve 10 months in prison, for

Count 6, Aggravated Trafficking of Oxycodone, Whittaker was ordered to serve 14

months in prison, for count 16, Sale of Dangerous Drugs (Nexium 40 mg),

Whittaker was ordered to serve 12 months in prison, and for Count 17, Possessing

Criminal Tools (Ledger), Whittaker was ordered to serve 10 months in prison. All

of the prison terms were ordered to be served consecutive to each other for an

aggregate prison term of 60 months. A judgment entry memorializing Whittaker’s

sentence was filed on December 1, 2016. It is from this judgment that Whittaker

appeals, asserting the following assignment of error for our review.

                            Assignment of Error
      The trial court erred to the prejudice of [Whittaker] when it
      deprived [Whittaker] of her Sixth Amendment Right to choose
      who will represent her.

      {¶6} In her assignment of error, Whittaker argues that she was deprived of

her right to choose who would represent her. Specifically, she argues that the trial

court essentially denied her ability to choose her own counsel when the trial court

denied her request for a continuance made two weeks before trial.




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                                  Standard of Review

         {¶7} Inasmuch as Whittaker’s assignment of error pertains to the trial court’s

denial of her oral request for a continuance, we review the trial court’s determination

under an abuse of discretion standard. State v. Unger, 67 Ohio St.2d 65 (1981), at

syllabus.

         {¶8} As Whittaker’s assignment of error relates to the trial court’s purported

denial of the counsel of Whittaker’s choice, “[a]n element of the Sixth Amendment

right to counsel is the right of a defendant who does not require appointed counsel

to select an attorney of [her] own choosing.” State v. Daily, 2d Dist. Montgomery

No. 23069, 2009-Ohio-4582, ¶ 10, citing United States v. Gonzalez–Lopez, 548 U.S.

140, 126 S.Ct. 2557 (2006). The Sixth Amendment right is violated when the

defendant is erroneously prevented from being represented by the lawyer she wants,

regardless of the quality of the representation she receives. Id. citing Gonzales-

Lopez.      A trial court’s erroneous deprivation of a criminal defendant’s Sixth

Amendment right to counsel of her own choosing “entitles defendant to a reversal

of [her] conviction because the error is ‘structural.’” Daily at ¶ 10, quoting

Gonzalez-Lopez.

                         Whittaker’s Request for New Counsel

         {¶9} In this case, Whittaker argues that the trial court essentially denied her

request for the counsel of her choice at a pre-trial hearing that was held on


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November 1, 2016. At that pretrial hearing, which was approximately two weeks

before Whittaker’s scheduled trial date, the trial court had the parties put the

proposed plea negotiations on the record. The plea negotiations were noted on the

record, and then the parties went off the record so that Whittaker could speak further

with her attorney regarding her case.

       {¶10} When the hearing resumed, Whittaker’s counsel indicated that

Whittaker still did not wish to accept the plea offer, and that Whittaker had indicated

to him that she wanted to hire a new attorney. Whittaker expressed her desire for a

continuance of her trial date in order to give a potential new attorney adequate time

to prepare.

       {¶11} The following discussion then occurred regarding Whittaker desiring

to replace her counsel.

       JUDGE: * * * Ms. Whittaker, the basis for your request to change
       attorneys is what?

       ***

       DEFENDANT: I haven’t been comfortable with his advice on
       how it’s been going, keeping in contact with each other, I would
       just rather go the other route and fire him and to get my own
       attorney.

       JUDGE: There is a jury trial set for two weeks from tomorrow.
       I mean if you choose your own attorney, he’ll need to be ready or
       she’ll need to be ready by two weeks from tomorrow. There is a
       trial set, jury notices go out today. Is that what you intend to do?



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      DEFENDANT: I was requesting a continuance.

      JUDGE: On what basis?

      DEFENDANT: So the new attorney I’m gonna hire can come
      prepared.

      JUDGE: You’ve had plenty of time to hire an attorney. You have
      a competent attorney appointed to you. Has [your counsel] Mr.
      Kelley done anything you believe is not legal or is incompetent?

      DEFENDANT: No Your Honor.

      JUDGE: Has Mr. Kelley made attempts—he’s said he met with
      you in the jail on multiple occasions, we’ve given you a lot of time
      today, he’s met with you at other times.

      DEFENDANT: This is actually the longest I’ve talked to Mr.
      Kelley since he’s been court appointed to me. He seen me once at
      the jail, and then I haven’t even talked to him on the phone.

      JUDGE: Alright. That wasn’t my question.             Has he done
      anything you believe is incompetent?

      DEFENDANT: I mean I guess I would say yeah, because I wasn’t
      able to get a hold of him yesterday before this trial.

      JUDGE: We’ll give you more time right now if you wish to talk
      with him. He said that—have you presented to her all of the
      discovery that’s been obtained Mr. Kelley?

      KELLEY: Yes Your Honor. We have discussed the discovery. I
      believe that’s what we did do at the jail that day, so we did go
      through it.

      JUDGE: Alright. Do you believe you’ve provided her with the
      information containing the statutory law of the State of Ohio and
      how it applies to these fact situations?

      KELLEY: Yes Your Honor.

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      JUDGE: Do you have any questions concerning those things Ms.
      Whittaker?

      DEFENDANT: No Your Honor.

      JUDGE: Alright. Is there anything else—and once again, if there
      is anything you wish to present as evidence in support of your
      request to discharge your attorney, I’ll allow you to do that.

      DEFENDANT: I just don’t think he’s been effective in
      representing me.

      JUDGE: Well you’d have to give me some basis for that Mr.
      Kelley is an experienced trial attorney * * * If you have any
      evidence on which you wish me to consider that, I certainly will
      allow you to * * * otherwise you’re just your [sic] opinion that
      you’re not satisfied with the proposal that’s been made is not
      sufficient for the Court to find that there has been a conflict of
      interest or a breakdown in communication or any irreconcilable
      conflict. None of that would be supported, but I’ll allow you to
      present whatever evidence you wish[.]

      ***

      DEFENDANT: I don’t really have anything else to say, I just
      figure I’ll just leave it to you. You decide.

      * * * [Judge then inquires of the prosecutor’s position and the
      prosecutor opposes any continuance, indicating the State had issued
      subpoenas for the scheduled trial date]. * * *

      JUDGE: The Court, under the case law from the State of Ohio
      would need to find that there is either a conflict of interest—I find
      no basis for that; there has been a complete breakdown in
      communication—I find no interest [sic] in that, I find you and Mr.
      Kelley talking today, you’ve been given a chance to discuss the
      case in private, we actually removed ourselves from the
      courtroom, that, in fact, that you and he have appeared to talk
      well here at counsel table—so I cannot find that and I do not find

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       any basis for irreconcilable conflict that might lead to an unjust
       result. If you wish to have another attorney represent you, there
       is a trial set for two weeks from tomorrow, and you’re welcome
       to get somebody involved if you wish to do that, but we’re not
       going to continue the case. I’m going to continue Mr. Kelley’s
       appointment at this point. If for some reason you decide to hire
       another attorney to be ready for that trial, I certainly—you know,
       I have no prohibition against somebody else, however Mr. Kelley
       is going to be kept as your attorney of record as far as the Court’s
       concerned. * * *

       ***

       JUDGE: And I think you understand Ms. Whittaker, that there
       is a trial set and if you wish somebody to co-counsel with Mr.
       Kelley, with his approval, or anything, I certainly will not prohibit
       you from doing anything like that if you wish to do it * * *[.] The
       Court has already denied your request for a continuance now.
       This matter has been set for trial for quite some time, and so
       therefore—and it’s a serious case Ms. Whittaker. I believe that
       Defendants are entitled to have their issues resolved in a timely
       manner. The law requires that. * * *

       ***

       JUDGE: Alright. Any questions about that procedure?

       DEFENDANT: No Your Honor.

(Nov. 1, 2016, Tr. at 15-22).

                                     Analysis

       {¶12} Whittaker argues that during the November 1, 2016, pretrial hearing,

the trial court prevented her from acquiring the counsel of her choice. However, the

preceding dialogue makes clear that the trial court never actually prevented

Whittaker from the “counsel of her choice” as she suggests. The trial court

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emphasized multiple times that Whittaker was free to hire her own attorney,

whomever that may be, but her attorney would have to be ready for the trial date

that was two weeks from the final pretrial hearing. Thus to the extent that Whittaker

specifically argues that the trial court denied her the counsel of her choice, there is

no basis in the record for this assertion, and her argument is not well-taken.

       {¶13} To the extent that Whittaker is arguing that the trial court erred by

finding that Whittaker had not established “a complete breakdown in

communication” such that her attorney should be discharged, the record does not

support this claim either. “An indigent defendant is entitled to the appointment of

substitute counsel only upon a showing of good cause, such as a conflict of interest,

a complete breakdown in communication, or an irreconcilable conflict which leads

to an apparently unjust result.” State v. Blankenship, 12th Dist. No. CA94-05-118,

102 Ohio App.3d 534, 538 (1995), citing State v. Pruitt, 18 Ohio App.3d 50, 57 (8th

Dist. 1984). Whittaker’s only argument as to a complete breakdown in

communication was that her attorney had not met with her enough, but there was no

indication that her attorney was not adequately handling her case or that Whittaker

and her attorney were not communicating well.           In fact, at this point in the

proceedings Whittaker’s attorney had already handled a full suppression hearing

with Whittaker, and had met with Whittaker and discussed the case with her. At

this specific pretrial hearing the record reflects that they communicated before and


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during a recess taken so that Whittaker could consider the State’s plea offer. On

this basis, we cannot find that the trial court erred in determining that there was not

a complete breakdown in communication.

       {¶14} Finally, Whittaker seems to contend that the trial court erred by

denying her request for a continuance, though it is not set out as an assignment of

error. Regarding her request for a continuance, Whittaker seemed to be requesting

a continuance of an indefinite duration, as she wanted to hire a different, unspecified

counsel. Whittaker provided no indication that she actually had tried to contact a

different attorney and that such an attorney indicated that he or she could not be

ready for the trial, which was two weeks from the final pretrial hearing. Whittaker

invites this court to speculate that such an attorney would have been hired and that

the attorney could not have been prepared for trial by the trial date. We decline to

engage in such speculation. Under the specific circumstances of this case, without

anything more definite, we certainly cannot find that the trial court abused its

discretion in denying Whittaker’s request for a continuance where the trial date was

set and her attorney was prepared to handle it. Therefore, Whittaker’s argument is

not well-taken, and her assignment of error is overruled.




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                                   Conclusion

       {¶15} For the foregoing reasons Whittaker’s assignment of error is overruled

and the judgment of the Hardin County Common Pleas Court is affirmed.

                                                              Judgment Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

/jlr




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