[Cite as State v. Davis, 2014-Ohio-5144.]



                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 101208



                                            STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                            RICHARD DAVIS

                                                       DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED




                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-13-570872-A

        BEFORE: S. Gallagher, J., Celebrezze, P.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: November 20, 2014
ATTORNEY FOR APPELLANT

R. Brian Moriarty
2000 Standard Building
1370 Ontario Street
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Anthony Thomas Miranda
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:

         {¶1} Appellant Richard Davis appeals his conviction on two counts of rape and one

count of kidnapping. For the reasons stated herein, we affirm the judgment of the trial court.

         {¶2} On March 5, 2013, appellant was indicted on two counts of rape of a minor under

the age of 13 with a sexually violent predator specification, each an unclassified felony, and two

counts of kidnapping with sexual motivation and sexually violent predator specifications, each a

felony of the first degree. At his arraignment on March 8, 2013, appellant was appointed trial

counsel and appellant entered a plea of not guilty to the indictment. Over the course of the next

year, defense counsel filed appropriate discovery motions, the state responded to the discovery

requests, and 14 pretrials were held.

         {¶3} It was not until the date of trial, March 5, 2014, that the court was informed

appellant wished to disqualify his attorney. Although it appears that appellant attempted to send

a motion to disqualify to the judge in October 2013, no motion was ever filed with the court.

Appellant expressed his displeasure with his counsel, making general assertions that “he’s been

telling me * * * lies,” “it’s always a heated discussion,” “he has no interest,” and “[he’s] not

representing me.” Appellant also claimed his counsel had lied to his family and “hung up on

them.”

         {¶4} Defense counsel indicated that the problem was appellant and his family did not like

what they were hearing. Defense counsel stated he had discussed the case with appellant, seen

appellant in jail, had appellant’s mental health examined, and explained to appellant that the rape

charges were unclassified felonies that carried a life sentence.

         {¶5} The court indicated that the victim had been flown in for trial and that the case

would go forward to trial. The court denied the motion to disqualify counsel.
       {¶6} Appellant proceeded to state he could not go to trial with defense counsel and that

he was ready to accept the plea deal. Before accepting appellant’s plea, the trial court ensured

that appellant understood his constitutional rights, the nature of the charges, the maximum

penalties that could be imposed, the plea that was being offered, and the effect of a guilty plea.

       {¶7} Appellant continued to express that he did not wish to go to trial with defense

counsel. Defense counsel indicated that he had been over the case with appellant “dozens and

dozens” of times and that appellant simply did not like what he was hearing. Counsel indicated

that he had two similar cases with appellant’s cell mates that were resolved with plea deals

involving less prison time. The prosecution was not offering a similar plea deal in appellant’s

case. The prosecutor confirmed that he had a discussion with defense counsel about another

case that resulted in a three-year sentence, but the state’s position was that appellant’s case

involved a totally different factual scenario.

       {¶8} Appellant then indicated that the victim in the case lied about her age. The court

expressed its understanding that there was DNA evidence in the case and that when the victim is

under the age of 13, consent is not a defense in the case. The court indicated that appellant was

facing a potential of 25 years to life, and that the plea offer was a flat ten years. Appellant stated

he did not really want to take the deal, “but I guess I got to.” The court stated it was prepared to

proceed with trial and that it was appellant’s choice, to which appellant stated he was not going

to trial with his defense counsel.

       {¶9} The court again explained to appellant the nature of the charges and the potential

sentence. The appellant stated he would take the deal. After further discussions, the plea offer

was placed on the record. The court complied with Crim.R. 11 and found that appellant’s plea

was made knowingly, intelligently, and voluntarily.
       {¶10} Appellant entered a plea of guilty to two counts of rape, as amended, each a

first-degree felony in violation of R.C. 2907.02(A)(2), and one count of kidnapping, as amended,

a first-degree felony in violation of R.C. 2905.01(A)(4) with a sexual motivation specification.

The remaining kidnapping count was dismissed. The trial court imposed a ten-year prison

sentence and classified appellant as a Tier III sex offender.

       {¶11} Appellant filed this appeal, raising two assignments of error for our review. Under

his first assignment of error, appellant claims he was denied his right to counsel and the trial

court abused its discretion in denying his motion for new counsel. Under his second assignment

of error, appellant claims he was deprived of his right to effective assistance of counsel because

his trial counsel failed to timely bring before the court the issues concerning counsel’s

representation.

       {¶12} Although an indigent defendant has the right to the appointment of counsel, he has

no right to have a particular attorney represent him and must demonstrate “good cause” in order

for the substitution of counsel to be warranted.         State v. Williams, 99 Ohio St.3d 439,

2003-Ohio-4164, 793 N.E.2d 446, ¶ 55; State v. Cowans, 87 Ohio St.3d 68, 72, 1999-Ohio-250,

717 N.E.2d 298. Three recognized examples of “good cause” that would warrant the discharge

of court-appointed counsel include (1) a conflict of interest; (2) a complete breakdown of

communication; and (3) an irreconcilable conflict that could cause an apparently unjust result.

State v. Burrell, 11th Dist. Lake No. 2013-L-024, 2014-Ohio-1356, ¶ 24. Before an indigent

defendant is entitled to discharge court-appointed counsel, he must show “a breakdown in the

attorney-client relationship of such magnitude as to jeopardize the defendant’s right to effective

assistance of counsel.” State v. Coleman, 37 Ohio St.3d 286, 525 N.E.2d 792 (1988), paragraph
four of the syllabus. A trial court’s denial of a motion to substitute counsel is reviewed for an

abuse of discretion. Cowans at 73.

       {¶13} In the instant case, appellant’s dissatisfaction with his trial counsel was stated in

general terms. Appellant did not give any substantial reason for desiring new counsel or provide

specificity as to the alleged “lies” and lack of representation. Although the record suggests

appellant attempted to send a motion to the court in October 2013, the date of trial was the first

time the trial court was made aware of any dissatisfaction with counsel by appellant. The trial

court engaged in a discussion on the record. The record does not reflect that trial counsel was

unprepared to proceed with trial, nor does it suggest such a breakdown in the attorney-client

relationship that appellant failed to receive adequate representation. Even if appellant did not

get along well with counsel, a lack of rapport is not sufficient to constitute a total breakdown

when it does not inhibit the attorney from both preparing and presenting a competent defense.

State v. Lewis, 11th Dist. Lake No. 2012-L-074, 2013-Ohio-3974, ¶ 48. Because appellant

failed to demonstrate a complete breakdown in communications with counsel or “good cause” to

substitute counsel, we cannot find that the trial judge abused his discretion in denying the

motion.

       {¶14} Likewise, because the record contains no evidence that would justify substitution

of counsel, we are unable to find that trial counsel was ineffective for failing to raise issues

concerning his representation ahead of trial. Further, appellant has failed to show that his guilty

plea was not knowing, voluntary, and intelligent, or that his counsel’s performance was deficient

or that he was prejudiced by any deficiency. Therefore, we are unable to find that appellant

failed to receive effective assistance of counsel. Appellant’s assignments of error are overruled.

       {¶15} Judgment affirmed.
       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated.      Case remanded to the trial court for execution of

sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
