[Cite as State v. Ponce, 2012-Ohio-4572.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                            SEVENTH DISTRICT

STATE OF OHIO,                                    )
                                                  )   CASE NO. 11 MA 75
        PLAINTIFF-APPELLEE,                       )
                                                  )
        - VS -                                    )         OPINION
                                                  )
OSCAR PONCE,                                      )
                                                  )
        DEFENDANT-APPELLANT.                      )


CHARACTER OF PROCEEDINGS:                             Criminal Appeal from Common Pleas
                                                      Court, Case No. 08 CR 1074.


JUDGMENT:                                             Reversed and Remanded.


APPEARANCES:
For Plaintiff-Appellee:                               Attorney Paul J. Gains
                                                      Prosecuting Attorney
                                                      Attorney Ralph M. Rivera
                                                      Assistant Prosecuting Attorney
                                                      21 W. Boardman St., 6th Floor
                                                      Youngstown, OH 44503

For Defendant-Appellant:                              Attorney John Limbian
                                                      The Commerce Building
                                                      201 East Commerce Street
                                                      Youngstown, OH 44503



JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich

                                                      Dated: September 24, 2012
[Cite as State v. Ponce, 2012-Ohio-4572.]
DeGenaro, J.
       {¶1}      Defendant-Appellant, Oscar Ponce, appeals the May 2, 2011 judgment of
the Mahoning County Court of Common Pleas disqualifying Ponce's retained counsel
from representing him upon retrial for rape based upon the possibility that defense
counsel might have to testify during that proceeding. On appeal, Ponce contends the trial
court's decision was unreasonable and violates his right to have counsel of his own
choosing.
       {¶2}      This argument is meritorious in part. The trial court disqualified counsel
because it was "possible" counsel would be called as a witness at the second trial and to
"avoid any possible impropriety." This is the incorrect legal test. The trial court must
determine, first, whether defense counsel's testimony is necessary. If it is deemed
unnecessary, then disqualification is unwarranted; Ponce should be able to retain his
chosen counsel. If it is deemed necessary, then counsel should be disqualified, unless
the trial court determines one of the exceptions found in Prof.Cond.R. 3.7(a)(1), (2) or (3)
applies. Accordingly, the judgment of the trial court is reversed and remanded for the
court to apply the correct legal standard to the facts of this case.
                                   Facts and Procedural History
       {¶3}      This appeal arises from a final, appealable interlocutory order issued during
the course of a second trial of the charges filed against Ponce. On October 2, 2008,
Ponce was indicted by the Mahoning County grand jury on two counts of rape (R.C.
2907.02(A)(2)(B)), first-degree felonies, and one count of menacing by stalking (R.C.
2903.211(A)(1)(B)(2)(e)), a fourth-degree felony. The State alleged that on September 3,
2008, Ponce physically forced his wife to engage in two types of sexual conduct with him.
With regard to the menacing by stalking, the State alleged that Ponce followed the victim
to Ohio from New Jersey after she had decided to end the marriage, and relentlessly
contacted her, causing her to fear he would harm her.
       {¶4}      Initially, counsel was appointed for Ponce. However, Ponce later retained
Attorney Jeffrey Limbian on January 8, 2010. The first trial was to a jury and commenced
on November 30, 2010; no transcript from this trial was filed as a part of the appellate
record.
                                                                                        -2-


       {¶5}      The pleadings filed in the record show that On December 1, 2010, the State
filed a motion in limine objecting to defense counsel's stated intention to introduce certain
photographs, purportedly taken inside the victim's home, depicting what appeared to be
sexual paraphernalia, including bondage items, based upon rape shield law and because
they were never produced during discovery. According to a Disclosure of Evidence filed
by the State that same day, Ponce told Assistant Prosecutor Natasha Frenchko, while in
the presence of his attorney, Jeffrey Limbian that the photos were taken the night of the
alleged rapes. As a result, Frenchko was placed on the State's witness list. According to
Ponce, Frenchko did not end up testifying at the first trial, and the photographs in
question were not presented as evidence. However, we cannot consider this contention
because the transcript from the first trial was not made a part of this appellate record.
       {¶6}      The jury convicted Ponce of the menacing by stalking charge, but could not
reach a verdict on the rape charges, and the trial court declared a mistrial on those
counts.       The trial court entered judgment on the menacing by stalking verdict on
December 13, 2010, and the matter was set for pretrial regarding the rape charges.
       {¶7}      On April 28, 2011, Ponce filed a motion to remove Frenchko from the case
pursuant to Rule 3.7 of the Rules of Professional Conduct, since she remained on the
witness list for retrial. The trial court granted the motion on April 29, 2011. That same
day, the State filed a motion for removal of defense counsel Limbian. For cause, the
State asserted that because Limbian was present when Ponce made the disclosure about
the photographs, the State may be required to call Attorney Limbian at the Defendant's
next trial.
       {¶8}      A brief hearing was held on the State's disqualification motion. Defense
counsel lodged an objection, which the court overruled. On May 2, 2011, the court issued
a judgment entry removing Limbian from the case, stating:

                 Defendant previously made statements both to the Assistant
        Prosecutor and Defense Counsel after the previous trial commenced.
        Because of this disclosure it is possible that Defense Counsel could be
                                                                                         -3-


       called as a witness. Upon review of the State of Ohio's Motion and Rule 3.7
       of the Rules of Professional Conduct (Exhibit B), the Court hereby removes
       Attorney Limbian from this case in order to avoid any possible impropriety.

      {¶9}    Ponce filed a timely notice of appeal, and on May 12, 2011, the trial court
granted a stay of all further proceedings pending the outcome of the present appeal. This
court found that the first brief filed by Ponce’s counsel “is in narrative format, rather than
in the style and content contemplated by App.R. 16(A). Moreover, it contains no legal
citations." Ponce was granted leave to file a brief that complied with the Appellate Rules,
which he did on December 28, 2011. Appellee, the State of Ohio, filed its brief on
February 15, 2012.
                          Disqualification of Defense Counsel
      {¶10} In his sole assignment of error, Ponce asserts:
      {¶11} "The Trial Court committed error by removing Defense Counsel from the
further representation of the Defendant based on the conclusion that both the Prosecutor
and Defense Counsel were present when the Defendant made a comment during trial
that he had taken pictures of the parties [sic] bedroom."
      {¶12} Ponce contends that the trial court abused its discretion and violated his
constitutional right to counsel when it disqualified his retained pretrial counsel of choice.
A pretrial order disqualifying a criminal defendant's chosen counsel is a final, appealable
order subject to immediate appellate review. State v. Chambliss, 128 Ohio St.3d 507,
2011-Ohio-1785, 947 N.E.2d 651, at syllabus.
      {¶13} " '[T]he standard of review for determining whether the court erred in its
pretrial disqualification of defense counsel is whether it abused its broad discretion.' "
State v. Keenan, 81 Ohio St.3d 133, 137, 689 N.E.2d 929 (1998), quoting State ex rel.
Keenan v. Calabrese, 69 Ohio St.3d 176, 180, 631 N.E.2d 119 (1994). "The term 'abuse
of discretion' connotes more than an error of law or of judgment; it implies that the court's
attitude is unreasonable, arbitrary or unconscionable." State v. Adams, 62 Ohio St.2d
151, 157, 404 N.E.2d 144 (1980). Further, in reviewing the trial court's action, an
                                                                                        -4-


appellate court must be cognizant of the context within which the ruling is made, and that
" '[t]he likelihood and dimensions of nascent conflicts of interest are notoriously hard to
predict.' " Serra v. Michigan Dept. of Corr., 4 F.3d 1348, 1354 (6th.Cir.1993), quoting
Wheat v. U.S., 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).
      {¶14} Ponce cites U.S. v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165
L.Ed.2d 409 (2006), in support of his contention that a structural error analysis applies;
however, that case has a different procedural posture. In Gonzalez-Lopez, the Court
examined the effect of an erroneous denial of counsel after the case had proceeded to
trial. Notably, in that case, the government did not dispute that the trial court erroneously
deprived the defendant of his chosen counsel—at issue was the standard of review when
the error is determined post-trial. Id. at 144-145. The Court determined this constitutes
structural error and therefore no showing of prejudice was required for reversal. Id. at
150-152. By contrast, the present case involves an interlocutory appeal from the trial
court's pretrial order removing defense counsel.
      {¶15} Turning to the substantive analysis, the right to select and be represented
by one's preferred attorney is comprehended by the Sixth Amendment to the United
States Constitution, "the essential aim of the Amendment is to guarantee an effective
advocate * * * rather than to ensure that a defendant will inexorably be represented by the
lawyer whom he prefers."        Wheat at 159.      Therefore, "[a] defendant has only a
presumptive right to employ his own chosen counsel." (Emphasis sic.) Keenan, 81 Ohio
St.3d at 137. That presumption may be overcome by a showing of an actual or serious
potential for conflict. Id., citing Wheat.
      {¶16} In Keenan, the Ohio Supreme Court held that a criminal defendant's
presumptive right to counsel may be overcome by a showing of an actual or serious
potential for conflict. Keenan at 137, citing Wheat. In Keenan, a death penalty case, the
trial court disqualified the defendant's retained counsel of choice because counsel had
previously represented a co-defendant.         See former DR 5-505 (superseded by
Prof.Cond.R. 1.7).
      {¶17} The Ohio Supreme Court determined that the trial court did not abuse its
                                                                                        -5-


discretion by disqualifying counsel, because regardless of "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 co-defendant]
in litigation stemming from the same set of facts. '[A] possible conflict inheres in almost
every instance of multiple representation.' " Keenan at 137, quoting Cuyler v. Sullivan,
446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).
      {¶18} The present case differs from Keenan in that the conflict does not stem from
dual representation. Rather, the alleged conflict here stems from the potential that
defense counsel might be called as a witness to testify at trial. That situation is governed
by Prof.Cond.R. 3.7, which provides:

              (a) A lawyer shall not act as an advocate at a trial in which the
       lawyer is likely to be a necessary witness unless one or more of the
       following applies:
              (1) the testimony relates to an uncontested issue;
              (2) the testimony relates to the nature and value of legal services
       rendered in the case;
              (3) the disqualification of the lawyer would work substantial hardship
       on the client.

      {¶19} "In determining whether an attorney should be disqualified under
Prof.Cond.R. 3.7 * * * the trial court must determine if the attorney's testimony is 1)
admissible and 2) necessary. * * *." Ross v. Olsavsky, 7th Dist. No 09 MA 95, 2010-
Ohio-1310, ¶49, (adopting the test in Brown v. Spectrum Networks, Inc., 180 Ohio
App.3d 99, 2008-Ohio-6687, 904 N.E.2d 576 (1st Dist.), ¶15.) If it meets both criteria,
then the trial court must disqualify counsel unless it determines that one of the Rule 3.7
exceptions applies. Olsavsky at ¶49.
      {¶20} The State asserts that Limbian's testimony was both admissible and
necessary and that none of the exceptions apply, and that therefore the trial court's
decision to disqualify counsel was reasonable. With regard to admissibility, it is clear as a
                                                                                           -6-


matter of law that Limbian's testimony about what Ponce told him would be admissible as
non-hearsay. Evid.R. 801(D)(2)(a) ("A statement is not hearsay if: The statement is
offered against a party and is (a) the party's own statement, in either an individual or a
representative capacity.")
      {¶21} Whether Limbian's testimony is "necessary" is more speculative because it
depends in large part upon whether the defense will move for admission of the
photographs, and whether Ponce himself will be called to testify about them, and if he
does, whether Limbian will be needed as a rebuttal witness. Moreover, counsel could
stipulate to foundational issues only regarding the pictures, eliminating the need for
Ponce and Limbian to testify at all. In any event, the trial court made no finding as to the
necessity of Limbian's testimony, leaving a limited record for review purposes.
      {¶22} In this respect, this case is similar to State v. Johnson, 197 Ohio App.3d
631, 2011-Ohio-6809, 968 N.E.2d 541 (6th Dist.). Johnson also involved an interlocutory
appeal from the trial court's pretrial disqualification of defense counsel. In Johnson,
counsel met with the child-victim in the case and obtained a written statement from her
that contradicted her earlier statements to police and to a children's services agency. The
state therefore claimed that defense counsel was an essential witness regarding the issue
of the victim's credibility, and asserted that it planned to call counsel as a witness at trial.
There was some dispute regarding whether the child's mother was present during
defense counsel's questioning of the victim and whether she could therefore testify in lieu
of the attorney. The trial court, citing Prof.Cond.R. 3.7, concluded that the mother's
absence or presence at the meeting between appellant and the victim was not
determinative, rather, the fact that counsel was a potential witness at trial was sufficient to
disqualify him from serving as Johnson's trial counsel. Id. at ¶3-5.
      {¶23} The Sixth District concluded this was an abuse of discretion:

               Disqualification of a party's attorney is an extreme measure that
       should be imposed only when it is absolutely necessary. Akron v. Carter,
       190 Ohio App.3d 420, 2010-Ohio-5462, 942 N.E.2d 409, ¶ 19. A party's
                                                                                             -7-


       simple declaration of an intention to call opposing counsel as a witness at
       trial is insufficient to establish the necessity for disqualification. Id. at ¶ 21.
       Thus, as the movant in the case before us, the state was required to prove
       that attorney Gerken was a necessary witness. Popa Land Co., Ltd. v.
       Fragnoli, 9th Dist. No. 08CA0062–M, 2009-Ohio-1299, 2009 WL 735969, ¶
       16.   If the evidence that is to be offered by an opposing attorney's
       testimony "can be elicited through other means, then the attorney is not a
       necessary witness." Rock v. Sanislo, 9th Dist. No. 09CA0031M, 2009-
       Ohio-6913, 2009 WL 5154889, ¶ 9. In other words, the attorney must be
       someone who has relevant, necessary information that no other witness
       can provide. Popa Land at ¶ 15. Finally, if the court finds that the
       testimony of the attorney is necessary, it must then determine whether one
       of the exceptions in Prof.Cond.R. 3.7 exists. Id. at ¶ 17.
              In the present case, the trial court failed to comply with the test set
       forth in Prof.Cond.R. 3.7(a) by finding that the fact that attorney Gerken
       was a potential witness was sufficient to satisfy the rule. Accordingly, the
       common pleas court's decision to disqualify appellant as Johnson's
       attorney was unreasonable, arbitrary, and unconscionable.

Johnson at ¶15-16.
      {¶24} Johnson is similar to this case in that the trial court here also concluded that
disqualification was warranted because of the possibility that defense counsel would
testify, in other words, that he was a potential witness. And like in Johnson, the trial court
did not expressly conclude that defense counsel was a necessary witness.
      {¶25} While we would also conclude, like the court in Johnson, that the trial court
applied an incorrect legal analysis to the disqualification issue, we believe the proper
remedy is to reverse and remand for the trial court to apply the correct test, rather than to
reverse the judgment outright. See, e.g, State v. Meisel, 7th Dist. No. 10 MO 4, 2011-
Ohio-6426, ¶41-44 (concluding that trial court applied erroneous legal standard and
                                                                                       -8-


reversing and remanding for the trial court to apply the correct legal analysis to the facts
of the case).
      {¶26} Accordingly, Ponce's sole assignment of error is meritorious in part. The
judgment of the trial court is reversed and remanded for the court to apply the correct
legal standard to the facts of this case. Namely, the trial court must determine, first,
whether defense counsel's testimony is necessary. If it is deemed unnecessary, then
disqualification is unwarranted; Ponce should be able to retain his chosen counsel. If it is
deemed necessary, then counsel should be disqualified, unless the trial court determines
one of the exceptions found in Prof.Cond.R. 3.7(a)(1), (2) or (3) applies.
Waite, P.J., concurs.
Vukovich, J., concurs.
