[Cite as State v. Coleman, 2015-Ohio-5381.]




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

 STATE OF OHIO                                      :
                                                    :   Appellate Case No. 26376
         Plaintiff-Appellee                         :
                                                    :   Trial Court Case No. 13-CR-1407
 v.                                                 :
                                                    :   (Criminal Appeal from
 KARL D. COLEMAN                                    :    Common Pleas Court)
                                                    :
         Defendant-Appellant                        :
                                                    :

                                               ...........
                                              OPINION
                         Rendered on the 23rd day of December, 2015.
                                               ...........

MATHIAS H. HECK, JR., by DYLAN G. SMEARCHECK, Atty. Reg. No. 0085429 and
KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Montgomery County Prosecutor’s Office,
Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third
Street, Dayton, Ohio 45402
       Attorneys for Plaintiff-Appellee

J. DAVID TURNER, Atty. Reg. No. 0017456, Post Office Box 291771, Kettering, Ohio
45429-1771
      Attorney for Defendant-Appellant

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

FAIN, J.

        {¶ 1} Defendant-appellant Karl Coleman appeals from his conviction and sentence
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for Murder, Felonious Assault, Rape, Attempted Rape, and Tampering with Evidence.

He contends that he was denied his right to counsel when the trial court denied his request

for substitution of counsel. Coleman also contends that the trial court erred in sentencing

by failing to merge the Rape and Attempted Rape convictions, and by sentencing him to

a mandatory sentence on the Attempted Rape convictions.

        {¶ 2} We conclude that the trial court did not abuse its discretion in denying

Coleman’s motion to substitute counsel a week prior to trial. We conclude that the trial

court did not err by declining to merge the convictions for Rape and Attempted Rape.

We further conclude that it is not clear from the termination entry whether the trial court

mistakenly believed that an eight-year sentence was mandatory, or whether it was merely

stating that a sentence was mandatory. In any event, the State concedes that the record

indicates that Coleman was sentenced to a mandatory sentence for Attempted Rape, and

that this was error.

        {¶ 3} Accordingly, that part of the judgment of the trial court making the sentence

for Attempted Rape a mandatory sentence is Reversed, the judgment is Affirmed in all

other respects, and this cause is Remanded for resentencing in accordance with this

opinion.



                                     I. The Offenses

        {¶ 4} This appeal involves the murder of DeMisha Mattison in her home in May

2011. Mattison was found dead lying face-down on her bed, with blood between her

legs.
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      {¶ 5} Mattison was killed by strangulation.      She had multiple bruises and

lacerations to her external and her internal vaginal area from blunt force trauma,

consistent with sexual assault. The blood between her legs was from the injuries to her

vagina. Mattison also suffered lacerations to her outer anus, consistent with attempted

anal penetration. Following an investigation, Coleman was developed as a suspect.



                             II. Course of the Proceedings

      {¶ 6} Coleman was indicted on one count of Murder, one count of Felonious

Assault, one count of Rape, one count of Attempted Rape, and one count of Tampering

with Evidence.   Trial was scheduled for July 22, 2014.      On July 16, the trial court

received a letter from Coleman seeking new counsel. The trial court heard Coleman on

the issue on two separate dates, and overruled the motion on both dates. Following a

jury trial, Coleman was convicted on all counts.

      {¶ 7} The trial court, for purposes of sentencing, merged the Felonious Assault

conviction with the Murder conviction. The trial court declined to merge the convictions

for Rape and Attempted Rape. Coleman was sentenced to a total prison term of 36

years to life. He appeals.



      III. The Trial Court Did Not Abuse its Discretion by Overruling a Motion

         for Appointment of Substitute Counsel Made Six Days Before Trial

      {¶ 8} Coleman’s First Assignment of Error states as follows:



             THE TRIAL COURT ERRED IN DENYING DEFENDANT’S REQUEST
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       FOR NEW COUNSEL.

       {¶ 9} Coleman contends that the trial court abused its discretion when it denied his

request for the appointment of new counsel.

       {¶ 10} “When a defendant asks the trial court for a new attorney during the course

of trial, the trial court must adequately investigate the defendant's complaint.” State v.

Jones, 2d Dist. Montgomery No. 20349, 2005-Ohio-1208, ¶ 12. “An indigent defendant

has no right to have a particular attorney of his own choosing represent him. He is

entitled to competent representation by the attorney the court appoints for him.

Therefore, in order to demonstrate the good cause necessary to warrant removing court

appointed counsel and substituting new counsel, defendant must show a breakdown in

the attorney-client relationship of such magnitude as to jeopardize defendant's Sixth

Amendment right to effective assistance of counsel.” (Citations omitted.) State v.

Coleman, 2d Dist. Montgomery No. 19862, 2004-Ohio-1305, ¶ 24.

       {¶ 11} “Disagreement between the attorney and client over trial tactics and

strategy does not warrant a substitution of counsel. Moreover, mere hostility, tension

and personal conflicts between attorney and client do not constitute a total breakdown in

communication if those problems do not interfere with the preparation and presentation

of a defense.” Id., ¶ 25.

       {¶ 12} “The decision whether or not to remove court appointed counsel and allow

substitution of new counsel is addressed to the sound discretion of the trial court, and its

decision will not be reversed on appeal absent an abuse of discretion.” Id., ¶ 26. The

term, “abuse of discretion,” implies an arbitrary, unreasonable, or unconscionable attitude

on the part of the court. State v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).
                                                                                          -5-


       {¶ 13} In this case, the trial court received a letter from Coleman less than a week

prior to the scheduled trial. The letter stated:

              I am writing you to ask you to remove [trial counsel] from my case

       because I do not feel he is able to defend me the way I need him to. I have

       just been informed that he spoke with the prosecutors about information that

       I never gave him permission to, this is crippling to my case and I feel like I

       am being forced into a defence [sic] that I don’t feel comfortable with this is

       my life at stake and I feel that it should be treated as such and [counsel] is

       not able to do so for reasons that still have not been explained to me

       therefore I respectfully ask for a new attorney before I go to trial.

       {¶ 14} On July 17, during a pretrial conference, the court questioned Coleman

about the reasons set forth in the letter for removing counsel. Coleman stated the issue

involved “some things that was [sic] discussed between [counsel] and the Prosecutor

which is not allowing him to say certain things during the closing and the opening

statements.” At that point, the prosecutor stated that other than discussions held before

the trial court, trial counsel had not revealed any statements by, or discussions with,

Coleman, and that no discussions regarding the case had been conducted between the

parties. The trial court then appears to begin asking Coleman what he wanted counsel

to say, at which point trial counsel interjected. Coleman then represented that counsel

had informed him that, with regard to his notice of alibi, there were certain matters that he

would not be allowed to disclose during opening statement and closing argument. Trial

counsel then stated that Coleman believed his defense had been compromised because

counsel had informed him that there were certain things that he could not state in court.
                                                                                      -6-


The trial court then asked counsel whether the concerns with the alibi were that it was

inconsistent with the evidence. Counsel declined to answer.

       {¶ 15} The trial court informed Coleman that an attorney has to comply with the

ethical rules even if the client wants him to do otherwise. Coleman then stated, “He’s

done everything possible to defense [sic] me. It’s just certain things that he discussed

with me and he said he couldn’t say.” The trial court then asked Coleman whether he

understood that regardless of his desire, attorneys have to abide by ethical obligations.

Coleman stated that he understood, and acknowledged that he had no other reason for

requesting a new attorney. The trial court overruled the motion.

       {¶ 16} The next day, the parties again appeared in court for a final pretrial

conference.   At that point, Coleman claimed that he and counsel were not able to

communicate. Upon questioning, Coleman acknowledged that he was concerned about

the same alibi issue he had raised the day before. He stated that counsel had answered

all of his questions, had done everything he had been asked to do, and had talked to

everyone he needed. Coleman also stated that counsel had been “amazing.” At that

point, it was determined that counsel would speak to Coleman regarding the reason why

counsel was unable to raise certain things at trial.

       {¶ 17} Nowhere in the record is there an explanation of the substance of the

misunderstanding between Coleman and counsel regarding the alibi issue. It appears

from the context of the transcript conversations, which span two days and fifteen pages,

that Coleman was informed that counsel was not able to state certain things to the jury

that Coleman believed should be raised regarding his alibi defense. It further appears

that counsel was constrained from making those statements by either the Ohio Rules of
                                                                                        -7-


Evidence or ethical considerations.

       {¶ 18} We conclude that the trial court adequately investigated Coleman's

complaints. Coleman admitted that counsel had done all that Coleman had asked, and

that his only dissatisfaction regarded the issue of the alibi defense. The trial court did

not find that matter sufficient to warrant substitution of counsel. Trial counsel indicated

that he was prepared for trial, and the trial court noted that counsel was a competent,

experienced attorney. We conclude that Coleman failed to establish the strong showing

of good cause necessary to demonstrate the requisite breakdown in the attorney-client

relationship.

       {¶ 19} The First Assignment of Error is overruled.



        IV. The Trial Court Did Not Err in Failing to Merge a Count of Vaginal

                     Rape with a Count of Attempted Anal Rape

       {¶ 20} Coleman’s Second Assignment of Error provides:

                THE TRIAL COURT ERRED BY NOT MERGING DEFENDANT’S RAPE

       AND ATTEMPTED RAPE CONVICTIONS.

       {¶ 21} Coleman contends that the trial court erred by failing to merge his Rape and

Attempted Rape convictions under R.C. 2941.25, Ohio's merger statute.

       {¶ 22} Pursuant to R.C. 2941.25, the merger of allied offenses occurs when the

conduct of the defendant can be construed to constitute two or more allied offenses of a

similar import, and this conduct shows that the offenses were not committed separately

or with a separate animus. The Supreme Court of Ohio, in State v. Ruff, 143 Ohio St.3d

114, 2015-Ohio-995, 34 N.E.3d 892, held that offenses are of dissimilar import “when the
                                                                                           -8-


defendant's conduct constitutes offenses involving separate victims or if the harm that

results from each offense is separate and identifiable.” Id. at paragraph two of the

syllabus. The Court further held that separate convictions are permitted under R.C.

2941.25 for allied offenses if any of the following is true: “(1) the offenses are dissimilar

in import or significance– in other words, each offense caused separate, identifiable harm,

(2) the offenses were committed separately, or (3) the offenses were committed with

separate animus or motivation.” Id., ¶ 25. We review the trial court's merger ruling de

novo. See State v. Williams, 134 Ohio St.3d 482, 2012–Ohio–5699, 983 N.E.2d 1245, ¶

28.

       {¶ 23} Coleman was convicted of one count of Rape and one count of Attempted

Rape. The statute proscribing Rape, R.C. 2907.02(A)(2), provides that “[n]o person shall

engage in sexual conduct with another when the offender purposely compels the other

person to submit by force or threat of force.” Sexual conduct is defined as “vaginal

intercourse between a male and female; anal intercourse, fellatio, and cunnilingus

between persons regardless of sex; and, without privilege to do so, the insertion, however

slight, of any part of the body or any instrument, apparatus, or other object into the vaginal

or anal opening of another. Penetration, however slight, is sufficient to complete vaginal

or anal intercourse.” R.C. 2907.01(A).

       {¶ 24} The Rape count was based upon evidence establishing vaginal penetration,

while the Attempted Rape was based upon evidence establishing that Mattison’s anus

had lacerations consistent with attempted penetration of her anus. The trial court found

that these offenses were committed separately, because they were predicated upon

necessarily separate conduct. The trial court also found that the offenses resulted in
                                                                                          -9-


separate violent injuries to Mattison.

       {¶ 25} We agree. This court has noted that anal rape and vaginal rape do not

involve the same conduct. State v. Nesser, 2d Dist. Clark No. 2013 CA 21, 2014-Ohio-

1978, ¶ 63. Other courts have likewise held that penetration of separate bodily orifices

constitutes separate acts of Rape. See State v. Wilson, 8 Ohio App.3d 216, 456 N.E.2d

1287 (8th Dist. 1982); State v. Ludwick, 11th Dist. Ashtabula No. 2002-A-0024, 2004-

Ohio-1152. Furthermore, the offenses caused separate identifiable harm to Mattison.

Thus, we conclude that the trial court did not err in denying merger of these two offenses.

       {¶ 26} The Second Assignment of Error is overruled.



      V. The Trial Court Erred by Imposing a Mandatory Eight-Year Sentence

                                   for Attempted Rape

       {¶ 27} The Third Assignment of Error is as follows:

              THE TRIAL COURT ERRED IN SENTENCING DEFENDANT TO A

       MANDATORY SENTENCE FOR COUNT IV ATTEMPTED RAPE.



       {¶ 28} Coleman contends that the trial court erred in sentencing by imposing a

mandatory sentence for the Attempted Rape conviction. The State concedes that the

sentence was improper in this regard, but contends that it is the result of a clerical error,

that can be corrected by a nunc pro tunc order.

       {¶ 29} The State is correct that, at the sentencing hearing, the trial court did not

make reference to a mandatory sentence for the Attempted Rape conviction. However,

a court speaks through its journal entries. State v. Arnold, 189 Ohio App.3d 238, 2009-
                                                                                      -10-


Ohio-3636, 938 N.E.2d 45, ¶ 42 (2d Dist.). In this case, the termination entry stated

“Count 4: Mandatory Eight (8) years.”

      {¶ 30} We cannot conclude from the record before us that this was simply a clerical

error. While it is possible that the trial court was referring to the fact that a prison

sentence was required when it included the word “mandatory,” it is also possible that the

trial court mistakenly thought the eight-year sentence was a mandatory sentence. We

cannot tell. The eight-year sentence is the maximum allowed under R.C. 2929.14(A)(2)

for Attempted Rape, and is a permissible sentence. We decline to correct this issue with

an order, but instead reverse this part of the judgment, and remand this cause for

resentencing.

      {¶ 31} The Third Assignment of Error is sustained.



                                    VI. Conclusion

      {¶ 32} Coleman’s First and Second Assignments of Error being overruled, and his

Third Assignment of Error being sustained, that part of the judgment of the trial court

making the sentence for Attempted Rape a mandatory sentence is Reversed, the

judgment is Affirmed in all other respects, and this cause is Remanded for resentencing

in accordance with this opinion.

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




DONOVAN and WELBAUM, JJ., concur.


Copies mailed to:
                       -11-


Mathias H. Heck
Dylan G. Smearcheck
Kirsten A. Brandt
J. David Turner
Hon. Mary K. Huffman
