[Cite as State v. Feemorlu, 2015-Ohio-4528.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                            CASE NO. 8-15-01

        v.

VARNEY P. FEEMORLU,                                    OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                            Trial Court No. CR14060133

                       Judgment Reversed and Cause Remanded

                          Date of Decision: November 2, 2015




APPEARANCES:

        Terrence K. Scott for Appellant

        Eric C. Stewart for Appellee
Case No. 8-15-01


WILLAMOWSKI, J.

           {¶1} Defendant-appellant, Varney P. Feemorlu, brings this appeal from the

judgment of the Common Pleas Court of Logan County, Ohio, which entered his

conviction after a jury found him guilty of two counts of trafficking in drugs in

violation of R.C. 2925.03(A)(1), a felony of the fifth degree. Feemorlu alleges

that the trial court erred when it denied the trial counsel’s motion to withdraw. For

the reasons that follow, we reverse the trial court’s judgment.

                               Factual and Procedural Background

           {¶2} Feemorlu was indicted on June 10, 2014, on two counts of trafficking

in drugs, a felony of the fifth degree in violation of R.C. 2925.03(A)(1). (R. at 2.)

Attorney Dawn Ward (“Attorney Ward”) was appointed as Feemorlu’s counsel on

June 25, 2014. (R. at 5.) A jury trial was scheduled to take place on November 13

and 14, 2014. (R. at 17.) On November 12, one day before the scheduled trial

date, Attorney Ward moved to withdraw as counsel for Feemorlu “due to a just

arisen conflict of interest.” (R. at 44.) The motion stated that Feemorlu was

“aware of the conflict and [was] in agreement with the withdrawal by counsel.”

(Id.) The trial court conducted a hearing on the motion on the same day.

           {¶3} It was submitted at the hearing that the confidential informant (“CI”)1

in this case had “misdemeanor charges pending in municipal court.” (Tr. of

Proceedings at 8, Nov. 12, 2014 (“Tr”).) Attorney Ward had been appointed to

1
    The name of the confidential informant was not disclosed at the hearing.

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Case No. 8-15-01


represent the CI on his misdemeanor charges and had spoken to him “regarding

himself and his misdemeanor matter.” (Tr. at 8-9.) On Friday before the hearing,

the State spoke with the CI and learned that the CI was represented by Attorney

Ward on his misdemeanor charges. (Tr. at 8.) The State then informed Attorney

Ward that her client from the municipal court was the CI in Feemorlu’s case. (See

Tr. at 8.)

       {¶4} Attorney Ward explained that through discovery and discussion with

the CI about his misdemeanor charges, she had learned information that would

prevent her from properly questioning the CI at the instant trial. (Tr. at 6-7.)

Attorney Ward indicated that she had filed a motion to withdraw from

representing the CI on his misdemeanor charges.          (Tr. at 6-7.)   The State

confirmed that there was “a possible conflict” as a result of Attorney Ward’s

representing the CI on the misdemeanor charges and that it did not have objections

to Attorney Ward’s withdrawal. (Tr. at 8.)

       {¶5} Furthermore, Attorney Ward indicated that she became involved in

another felony case in which the same CI was a witness. (Tr. at 6.) She believed

that as a result, she had “too much information” about the CI to be able to question

him properly. (Tr. at 7, 9.) She added that she “would not feel comfortable

questioning the CI.” (Tr. at 9.) Pointing to the fact that the CI was “an integral

witness in both matters,” Attorney Ward indicated that she would excuse herself

from the other felony case as well. (Id.)
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Case No. 8-15-01


       {¶6} The trial court questioned Attorney Ward, attempting to determine

how the other cases affected Attorney Ward’s representation of Feemorlu in the

instant case. Attorney Ward responded, “I would not feel comfortable questioning

[the CI] in this capacity knowing that he is the CI in the other case, and I don’t

believe that he would feel comfortable as well—as well as in speaking with my

client he’s not comfortable with that.” (Tr. at 9.) The trial court referred to a

discussion that had apparently occurred several days before, at a status conference,

where it had been agreed that Attorney Ward would be able to proceed in the

instant case if she withdrew from representing the CI on his misdemeanor charges.

(Tr. at 8, 10.) The trial court expressed its concern about a request for withdrawal

being filed so close to the trial date and referred to “local rules that say when you

withdraw you have to do it 20 days ahead of time.” (Tr. at 10-11.) Relying on

ethics opinions 2013-4 and 2008-4, the trial court denied Attorney Ward’s motion

to withdraw. (Tr. at 10.)

       {¶7} The case proceeded to trial with Attorney Ward as Feemorlu’s

counsel, and Feemorlu was found guilty of both charges. He was sentenced on

December 15, 2014, and filed this timely appeal in which he alleges one

assignment of error as quoted below.

       The trial court denied Varney P. Feemorlu’s right to counsel
       free from conflict when the trial court denied trial counsel’s
       motion to withdraw, in violation of the Sixth and Fourteenth
       Amendments to the United States Constitution and Section 10,
       Article I of the Ohio Constitution.
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Case No. 8-15-01


                               Preliminary Matters

       {¶8} Prior to addressing the assignment of error we note that on June 8,

2015, the State filed a motion for leave to supplement the record, and it added

certain documents to its brief. An appellate court may consider only those papers

and exhibits that were properly filed and included in the record before the trial

court. See App.R. 9(A); State v. Ishmail, 54 Ohio St.2d 402, 405-406, 377 N.E.2d

500 (1978) (“Since a reviewing court can only reverse the judgment of a trial court

if it finds error in the proceedings of such court, it follows that a reviewing court

should be limited to what transpired in the trial court as reflected by the record

made of the proceedings.”). A record may be supplemented only to add matters

that were actually before the trial court and therefore, constituted part of the

original proceedings, but were inadvertently not transmitted. See id.; App.R. 9(E).

       {¶9} In the instant case, the State attached pleadings from Bellefontaine

Municipal Court. These pleadings were not filed with the Logan County Common

Pleas Court prior to the hearing at issue in this case, and they were not made part

of the record. The State fails to show that these pleadings were before the trial

court in this action but were inadvertently omitted. Accordingly, the motion for

leave to supplement the record is not well taken. The documents attached to the

State’s brief are not properly before us and we do not consider them in our

analysis of the issues on appeal. Likewise, we do not consider any additional facts

included in the parties’ briefs that were not before the trial court, such as dates
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Case No. 8-15-01


when certain procedural events occurred or dates when pleadings were filed in the

Bellefontaine Municipal Court.

       {¶10} We also note that Feemorlu’s contentions on appeal stem from the

trial court’s denial of Attorney Ward’s request to withdraw, rather than from

Feemorlu’s request for new counsel. We recognize, however, that Attorney Ward

represented that Feemorlu was “aware of the conflict and [was in] agreement with

the withdrawal by counsel.” (R. at 44.) She further stated at the hearing that her

client was not comfortable with this alleged conflict. (Tr. at 9.) Based on these

observations, we treat Attorney Ward’s request to withdraw as equivalent to

Feemorlu’s request for substitution of counsel for the purpose of this opinion.

                                  Legal Standard

       {¶11} The analysis of this case starts with the criminal defendant’s right to

counsel guaranteed by the United States Constitution and the Ohio Constitution.

See State v. Combs, 3d Dist. Hancock No. 5-96-15, 1996 WL 518112, *1 (Sept.

12, 1996). We have previously recognized that although a criminal defendant has

an absolute right to counsel, there is no “absolute right” to counsel of one’s own

choosing. Id., citing United States v. Iles, 906 F.2d 1122, 1130 (6th Cir.1990),

and State v. Marinchek, 9 Ohio App.3d 22, 23, 457 N.E.2d 1198 (9th Dist.1983).

Therefore, an indigent defendant does not have the right to choose his counsel.

Combs at *1; Iles at 1130; Thurston v. Maxwell, 3 Ohio St.2d 92, 93, 209 N.E.2d

204 (1965). In situations where an issue of substitution of appointed counsel
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Case No. 8-15-01


arises, an indigent defendant must demonstrate “good cause” to warrant

substitution. Combs at *1; Iles at 1130.

       {¶12} A conflict of interest is one of the recognized causes for substitution

of counsel because “where there is a right to counsel, there is a correlative right to

representation free from conflicts of interest.” State v. Gillard, 64 Ohio St.3d 304,

1992-Ohio-48, 595 N.E.2d 878 (1992), syllabus. But an assertion of a conflict of

interest does not automatically require substitution of counsel. Rather, “[w]here 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.” Id.

       An inquiry into whether the substitution of counsel is warranted
       serves several important goals. This procedural protection not only
       aids in determining whether “good cause” has been shown, but
       serves to ease the defendant’s distrust, to preserve the integrity of the
       trial process, and to foster confidence in the jury verdict.

Iles at 1131. The Sixth Circuit Court of Appeals further recognized that the

inquiry “must of course be conducted delicately because of the danger of intruding

into privileged communications.” Id., citing United States v. Welty, 674 F.2d 185,

190 (3d Cir.1982). If the inquiry reveals an actual conflict of interest, the trial

court must replace the attorney. Combs at *1. But if the trial court ascertains that

“the risk of conflict [is] too remote,” there is no duty to appoint separate counsel.

Gillard at 309.



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       {¶13} The Ohio Supreme Court has held that “[t]he trial judge has ‘wide

latitude’ in determining that an actual or potential conflict exists.”       State v.

Keenan, 81 Ohio St.3d 133, 137, 1998-Ohio-459, 689 N.E.2d 929 (1998), quoting

United States v. Mays, 69 F.3d 116, 121 (6th Cir.1995). Furthermore, the decision

on an attorney’s motion to withdraw or the defendant’s request for substitution of

counsel rests within the sound discretion of the trial court. Combs, 3d Dist.

Hancock No. 5-96-15, 1996 WL 518112, at *1; N. Eagle, Inc. v. Kosas, 8th Dist.

Cuyahoga No. 92358, 2009-Ohio-4042, ¶ 32; see also Keenan at 137 (applying the

same standard to the trial court’s disqualification of counsel); State v. Britton, 3d

Dist. Marion No. 9-99-81, 2000-Ohio-1881, 2000 WL 765805, *4. Because abuse

of discretion connotes more than an error in judgment, we will not substitute our

judgment for that of the trial court. Keenan at 137, citing State v. Adams, 62 Ohio

St.2d 151, 157, 404 N.E.2d 144 (1980). Therefore, we will only reverse the trial

court’s decision if “the trial court’s attitude [was] unreasonable, arbitrary, or

unconscionable.” Id. “A decision is unreasonable if there is no sound reasoning

process that would support the decision.” Britton at *4.

                          Application to the Instant Case

       {¶14} In this case, the question of a potential conflict of interest was raised

by defense counsel, so the trial court had a duty to inquire into whether a conflict

of interest actually existed. See Gillard, 64 Ohio St.3d 304, 1992-Ohio-48, 595

N.E.2d 878, syllabus. The trial court conducted the required hearing and denied
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Case No. 8-15-01


Attorney Ward’s request for substitution of counsel the day before the assigned

trial date. Feemorlu alleges that “[t]he trial court did not engage in sufficient

discussion with trial counsel regarding the existence of an actual conflict.” (App’t

Br. at 19.)

       {¶15} We have reviewed the scope of the trial court’s inquiry in State v.

Johnson, 185 Ohio App.3d 654, 2010-Ohio-315, 925 N.E.2d 199 (3d Dist.).

There, the trial court was notified about the potential conflict of interest because

the confidential informant in the case was Johnson’s attorney’s former client. Id.

at ¶ 2.   The trial court “engaged in a dialogue with Johnson concerning the

conflict,” and Johnson waived the conflict. Id. We reviewed the record and noted

that

       the trial court extensively discussed the effect of a waiver on the
       potential conflict of interest, but did not inquire as to whether an
       actual conflict of interest was present. * * * Without more
       information concerning the circumstances of the conflict, this court
       cannot ascertain whether the waiver was sufficient. * * *

       For example, if the representation of the informant was several years
       earlier and on a matter entirely unrelated to the present case, there
       might well be no actual conflict of interest and hence no need for
       any admonishment. On the other hand, if the representation of the
       informant was related to matters that led to the current charges
       against the defendant, there might be a conflict significant enough to
       override even the most thorough of admonishments. Thus, the trial
       court, in this case, needed to inquire into the prior representation of
       the confidential informant to determine the required scope of the
       waiver, or whether new counsel was required.




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(Emphasis sic.) Id. at ¶ 6-7. We therefore reversed the case and remanded it for a

hearing to determine whether an actual conflict of interest existed. Id. at ¶ 8.

       {¶16} In the instant case, a review of the record indicates that the trial court

allowed both Attorney Ward and the State to make their arguments and present the

relevant facts. Upon hearing the facts, as they are recited above, the trial court

attempted to determine how the existence of the other cases involving Attorney

Ward and the CI was “relevant” or what it “had to do with this case.” (Tr. at 8-

10.)   The trial court did not ask whether Attorney Ward would be able to

competently represent Feemorlu or whether she had learned any facts relevant to

Feemorlu’s case from either of the other two cases. The trial court did not inquire

whether the misdemeanor charges pending in the municipal court against the CI

were in any way related to the instant prosecution or whether the interests of

Feemorlu and the CI were in any way conflicting.              Upon Attorney Ward’s

statement that she had information about the CI that would cause her to feel

“uncomfortable,” the trial court only probed into what was the “relevance” of

Attorney Ward’s feeling uncomfortable to Feemorlu’s case.

       {¶17} The hearing transcript shows that the trial court attempted to conduct

the delicate inquiry. But the trial court’s inquiry, as it is before us in the record,

did not satisfy the important goals: it did not serve to ascertain “whether ‘good

cause’ has been shown” or “to ease the defendant’s distrust, to preserve the

integrity of the trial process, and to foster confidence in the jury verdict.” Iles, 906
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Case No. 8-15-01


F.2d 1122, at 1131. Therefore, on the record before us, the trial court did not

properly fulfil its “affirmative duty to inquire.” Gillard, 64 Ohio St.3d 304, 1992-

Ohio-48, 595 N.E.2d 878, at syllabus.

       {¶18} We acknowledge the trial court’s reference to a prior discussion

about the conflict, at “a status conference with the attorneys Monday.” (Tr. at 8.)

We thus realize the possibility that the appropriate inquiry might have occurred

outside of the record in this case and the trial court based its decision on the facts

learned at the status conference. Nevertheless, the record before us does not

support such an inference. The trial court did not make a determination on the

record as to whether an actual conflict existed in this case or whether the potential

of conflict was too remote to warrant substitution of counsel. See Gillard at 309.

It merely stated that it was “unconvinced” and concluded that “the Court’s earlier

agreement with counsel, that she would withdraw in the municipal court” was

dispositive of the issue. (Tr. at 10.)

       {¶19} While we are bound to rely on the trial court’s discretion in the

matters of conflict of interest, the record lacks support for the trial court’s decision

and it lacks proof that the affirmative duty to properly inquire was fulfilled.

Therefore the judgment must be reversed. Pursuant to Gillard and Johnson, on

remand the trial court must “hold a hearing to determine whether an actual conflict

of interest existed. If a conflict of interest is found, the trial court must then

conduct a new trial free from conflicts of interest. However, if no actual conflict
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Case No. 8-15-01


of interest is found, then no new trial is necessary.” Johnson, 185 Ohio App.3d

654, 2010-Ohio-315, 925 N.E.2d 199, at ¶ 8, citing Gillard at 312.

       {¶20} For the reasons set forth above, we sustain the assignment of error

and remand the matter for further proceedings consistent with this opinion.

                                    Conclusion

       {¶21} Having reviewed the arguments, the briefs, and the record in this

case, we find error prejudicial to Appellant in the particulars assigned and argued.

The judgment of the Common Pleas Court of Logan County, Ohio, is therefore

reversed.

                                                           Judgment Reversed and
                                                                Cause Remanded

SHAW and PRESTON, J.J., concur.

/jlr




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