[Cite as State v. Gilliam, 2013-Ohio-888.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       SCIOTO COUNTY

STATE OF OHIO,                        :    Case Nos. 11CA3439
                                      :               11CA3440
     Plaintiff-Appellee,              :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
ANDRE J. GILLIAM,                     :
                                      :
     and                              :
                                      :
TYRAIL L. GRAHAM,                     :    RELEASED 02/08/13
                                      :
     Defendants-Appellants.           :
______________________________________________________________________
                            APPEARANCES:

Sterling E. Gill, II, Columbus, Ohio, for appellants.

Mark E. Kuhn, Scioto County Prosecutor, and Julie Cooke Hutchinson, Scioto County
Assistant Prosecutor, Portsmouth, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     Andre Gilliam and Tyrail Graham are charged with multiple drug related

offenses stemming from the same incident. In consolidated appeals, the co-defendants

contend that the trial court abused its discretion when it removed Sterling Gill as their

retained counsel of choice on conflict-of-interest grounds. Although both have pleaded

not guilty, the Appellants claim no actual or potential conflict exists because: (1) Gilliam

denies any knowledge of or involvement in the charged offenses, and (2) Graham

admits his culpability and denies Gilliam’s knowledge of criminal activity. They also

argue that if a conflict exists or arises in the future, they waived it. However, a trial court

has substantial latitude to refuse waivers of conflicts of interest. And regardless of

whether an actual conflict exists, a possible conflict inheres in almost every instance of
Scioto App. Nos. 11CA3439 & 11CA3440                                                        2


multiple representation. Given the potential for conflict and fact that nothing in the

record suggests the court’s decision to refuse the waivers and remove Gill was

unreasonable, arbitrary, or unconscionable, we reject the Appellants’ arguments and

affirm the judgment below.

                                          I. Facts

       {¶2}   In case number 11-CR-261, Gilliam was indicted on two counts of

trafficking crack cocaine, one count of possession of crack cocaine, one count of

possession of criminal tools, and one count of possession of marihuana. In case

number 11-CR-263, Graham was charged with the same offenses stemming from the

same incident. Gilliam appeared for arraignment with Gill as his retained counsel. At

Graham’s arraignment, the court appointed him an attorney. However, Graham

subsequently retained Gill to represent him. Graham and Gilliam each filed a document

titled: “AFFIDAVIT and WAIVER of POSSIBLE CONFLICT of INTEREST.” In the

document, the defendants claim Gill advised them of a potential conflict of interest, and

they waived any claim of conflict of interest. The document also provides:

       “Mr. Gilliam states that he had no knowledge nor involvement in the * * *
       offenses and Mr. Graham states that the transaction charged in the
       indictment(s) were of his own doing and as the driver of the vehicle they
       were in, he sold crack cocaine to undercover law enforcement on [March
       11, 2011], unbeknownst to Mr. Gilliam.

             Attached here to [sic] is the affidavit of Tyrail Graham dated April
       21, 2011 were [sic] he specifies his involvement as [sic] respect to case
       number 11-CR-263.” (Emphasis sic.)

Both defendants purportedly signed the document on May 17, 2011, but had Gill

notarize it on May 2, 2011. No one attached Graham’s April 21, 2011 affidavit to the

document.
Scioto App. Nos. 11CA3439 & 11CA3440                                                        3


       {¶3}   The court conducted a hearing to determine whether Gill could represent

both defendants. Subsequently, the court found that “a conflict or potential conflict

exists between the defendants that is aggravated by the dual representation by one

attorney.” The court recognized that at the hearing, both defendants acknowledged the

possible conflict and waived it. Nonetheless, the court expressed its concern “about the

allegations, the waiver of conflict of interest and the fact that the document places the

blame and knowledge of the crime upon one of the two defendants.” In addition, the

court noted that the affidavit referenced in the written waiver, in which Graham was to

specify his “involvement” in case 11-CR-263, was not attached to the waiver. The court

recognized the defendants’ right to counsel of their own choosing, but “in light of the

arguments at hearing and potential for conflict in these cases,” the court found that “to

protect the constitutional rights of the defendants * * * they cannot be represented by

the same attorney.” Therefore, the court held that Gill could not represent either

defendant. This appeal followed.

                                 II. Assignments of Error

       {¶4}   Gilliam and Graham assign the same error for our review:

       The Trial Court violated the 6th. and 14th. Amendments to the U.S.
       Constitution by denying Defendant(s) right to retained counsel.
       Hence the [T]rial Court abused its discretion by its order filed June
       29, 2011 by ruling that “…Attorney Sterling Gill may not represent
       either defendant and shall be removed as counsel for both Andre J.
       Gilliam and Tyrail Graham, by reason of possible conflict of
       interest…”

                       III. Removal of Retained Counsel of Choice

       {¶5}   In their sole assignment of error, the Appellants contend that the trial court

abused its discretion when it removed their retained counsel on conflict-of-interest
Scioto App. Nos. 11CA3439 & 11CA3440                                                             4


grounds, thereby denying their constitutional right to retained counsel of choice. “A

pretrial ruling removing a criminal defendant’s retained counsel of choice is a final order

subject to immediate appeal.” State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-

1785, 947 N.E.2d 651, syllabus. We review a trial court’s pretrial disqualification of

defense counsel for an abuse of discretion. State v. Keenan, 81 Ohio St.3d 133, 137,

689 N.E.2d 929 (1998). The phrase “abuse of discretion” implies the court’s attitude is

unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157,

404 N.E.2d 144 (1980).

       {¶6}   “[W]hile the right to select and be represented by one’s preferred attorney

is comprehended by the Sixth Amendment, the essential aim of the Amendment is to

guarantee an effective advocate for each criminal defendant rather than to ensure that a

defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v.

United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Therefore,

“[a] defendant has only a presumptive right to employ his own chosen counsel.”

(Emphasis sic.) Keenan at 137. “ ‘[T]hat presumption may be overcome not only by a

demonstration of actual conflict but by a showing of a serious potential for conflict.’ ” Id.,

quoting Wheat at 164.

       {¶7}   “The trial judge has ‘wide latitude’ in determining that an actual or potential

conflict exists.” Id., quoting United States v. Mays, 69 F.3d 116, 121 (6th Cir.1995). A

possibility of a conflict of interest exists if the “ ‘interests of the defendants may diverge

at some point so as to place the attorney under inconsistent duties.’ ” State v. Dillon, 74

Ohio St.3d 166, 168, 657 N.E.2d 273 (1995), quoting Cuyler v. Sullivan, 446 U.S. 335,

356, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), fn. 3 (Marshall, J., concurring in part and
Scioto App. Nos. 11CA3439 & 11CA3440                                                             5


dissenting in part). An “actual, relevant” conflict of interest exists if “ ‘during the course

of the representation, the defendants’ interests do diverge with respect to a material

factual or legal issue or to a course of action.’ ” Cuyler at 356, fn. 3 (Marshall, J.,

concurring in part and dissenting in part).

       {¶8}   Moreover, a trial court “must be allowed substantial latitude in refusing

waivers of conflicts of interest not only * * * where an actual conflict may be

demonstrated before trial, but in the more common cases where a potential for conflict

exists which may or may not burgeon into an actual conflict * * *.” Keenan, 81 Ohio

St.3d at 137, 689 N.E.2d 929, quoting Wheat at 163. As the Supreme Court of the

United States has explained:

       The likelihood and dimensions of nascent conflicts of interest are
       notoriously hard to predict, even for those thoroughly familiar with criminal
       trials. It is a rare attorney who will be fortunate enough to learn the entire
       truth from his own client, much less be fully apprised before trial of what
       each of the Government’s witnesses will say on the stand. A few bits of
       unforeseen testimony or a single previously unknown or unnoticed
       document may significantly shift the relationship between multiple
       defendants. These imponderables are difficult enough for a lawyer to
       assess, and even more difficult to convey by way of explanation to a
       criminal defendant untutored in the niceties of legal ethics. Nor is it amiss
       to observe that the willingness of an attorney to obtain such waivers from
       his clients may bear an inverse relation to the care with which he conveys
       all the necessary information to them. Wheat at 162-163.

       {¶9}   In Keenan, the trial court disqualified the defendant’s retained counsel of

choice because his attorneys previously represented his co-defendant. The trial court

found an actual conflict of interest existed that precluded the representation under

former DR 5-105. On appeal, the Ohio Supreme Court stated: “Whether or not an

actual conflict of interest existed, there clearly was a potential conflict of interest

inherent in Keenan’s representation by the same attorneys who had represented [his
Scioto App. Nos. 11CA3439 & 11CA3440                                                       6


co-defendant] in litigation stemming from the same set of facts. ‘[A] possible conflict

inheres in almost every instance of multiple representation.’ ” (Emphasis sic.) Keenan

at 136-137, quoting Cuyler at 348. The Court found the existence of a potential conflict

was “fatal” to Keenan’s appeal, and it was “irrelevant” that both Keenan and his co-

defendant waived their right to conflict free counsel. Id. Because nothing in the record

justified a finding that the trial court abused its discretion by disqualifying Keenan’s

attorneys, the Court rejected the portion of Keenan’s appeal challenging the

disqualification. Id. at 137.

       {¶10} Here, the Appellants contend that “[n]o possible, potential or actual conflict

of interest(s) exists in this case.” They argue that the Ohio Rules of Professional

Conduct do not prohibit Gill’s representation of them both. Specifically, they point to

Prof.Cond.R. 1.7, which provides:

              RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS

               (a)   A lawyer’s acceptance or continuation of representation of a
       client creates a conflict of interest if either of the following applies:

                    (1) the representation of that client will be directly adverse to
              another current client;

                      (2) there is a substantial risk that the lawyer’s ability to
              consider, recommend, or carry out an appropriate course of action
              for that client will be materially limited by the lawyer’s
              responsibilities to another client, a former client, or a third person or
              by the lawyer’s own personal interests.

                (b)    A lawyer shall not accept or continue the representation of a
       client if a conflict of interest would be created pursuant to division (a) of
       this rule, unless all of the following apply:

                    (1) the lawyer will be able to provide competent and diligent
              representation to each affected client;

                      (2) each affected client gives informed consent, confirmed in
Scioto App. Nos. 11CA3439 & 11CA3440                                                               7

              writing;

                      (3) the representation is not precluded by division (c) of this
              rule.

             (c)    Even if each affected client consents, the lawyer shall not
       accept or continue the representation if either of the following applies:

                      (1) the representation is prohibited by law;

                    (2) the representation would involve the assertion of a claim
              by one client against another client represented by the lawyer in the
              same proceeding. (Emphasis sic.)

       {¶11} The Appellants suggest there is no conflict under Prof.Cond.R. 1.7(a)

because Gilliam asserts that he has no knowledge of the charged offenses, and

Graham admits that the “transaction charged in the indictment(s) were of his own doing

and he sold crack cocaine to an undercover law enforcement officer on the date

specified, unbeknownst to Mr. Gilliam.” The Appellants indicate that even if a conflict

exists or might exist, Gill’s representation is appropriate under Prof.Cond.R. 1.7(b)

because they gave informed consent, confirmed in writing, and Prof.Cond.R. 1.7(c)

does not preclude the representation.

       {¶12} However, the issue before us is not whether Gill’s representation of the

Appellants would violate his ethical duties regarding conflicts of interest. The issue is

whether the trial court abused its discretion by removing the Appellants’ retained

counsel of choice on conflict-of-interest grounds. Regardless of whether an actual

conflict exists, as the trial court concluded, there is clearly a potential conflict of interest

inherent in Gill’s simultaneous representation of Gilliam and Graham in litigation

stemming from the same of set of facts. See Keenan, 81 Ohio St.3d at 136-137, 689

N.E.2d 929. Again, a “ ‘possible conflict inheres in almost every instance of multiple
Scioto App. Nos. 11CA3439 & 11CA3440                                                      8

representation.’ ” Id. at 137, quoting Cuyler, 446 U.S. at 348, 100 S.Ct. 1708, 64

L.Ed.2d 333. For instance, it is possible that Graham will change his position and claim

Gilliam committed the charged offenses alone or in conjunction with Graham. And

while the Appellants waived any conflict, the court was free to refuse their waiver.

         {¶13} As in Keenan, nothing in the record suggests that the trial court’s decision

to refuse the waiver and remove retained counsel was unreasonable, arbitrary, or

unconscionable. Instead, it is clear the court based its decision on the potential for

conflict and the court’s desire to protect the Appellants’ constitutional rights.

Accordingly, we overrule the Appellants’ assignments of error and affirm the judgment

below.

                                                              JUDGMENT AFFIRMED AND
                                                                CAUSE REMANDED FOR
                                                               FURTHER PROCEEDINGS.
Scioto App. Nos. 11CA3439 & 11CA3440                                                          9


                                    JUDGMENT ENTRY

      It is ordered that the JUDGMENT IS AFFIRMED, the CAUSE IS REMANDED,
and that Appellants shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Kline, J. & McFarland, J.: Concur in Judgment and Opinion.

                                            For the Court



                                            BY: ____________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
