[Cite as State v. Brown, 2014-Ohio-4420.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                )
                                              )   CASE NO. 12 MA 198
        PLAINTIFF-APPELLEE,                   )
                                              )
        - VS -                                )         OPINION
                                              )
DARRELL BROWN,                                )
                                              )
        DEFENDANT-APPELLANT.                  )

CHARACTER OF PROCEEDINGS:                         Criminal Appeal from
                                                  Youngstown Municipal Court,
                                                  Case No. 12 CRB 1798.

JUDGMENT:                                         Reversed, Conviction Vacated
                                                  and Remanded.

APPEARANCES:
For Plaintiff-Appellee:                           Attorney Martin Hume
                                                  City Prosecutor
                                                  Attorney Kathleen Thompson
                                                  Assistant City Prosecutor
                                                  Youngstown Prosecutor's Office
                                                  26 S. Phelps Street, 4th Floor
                                                  Youngstown, OH 44503

For Defendant-Appellant:                          Attorney Scott Essad
                                                  721 Boardman-Poland Road
                                                  Suite 201
                                                  Youngstown, OH 44512



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


                                                  Dated: September 29, 2014
[Cite as State v. Brown, 2014-Ohio-4420.]
DeGenaro, P.J.
        {¶1} Defendant-Appellant Darrell Brown appeals the October 18, 2012
judgment of the Youngstown Municipal Court convicting him of Domestic Violence.
On appeal Brown asserts the trial court erred in not granting his request for a new
attorney and removing him from the courtroom based upon his conduct during the
proceedings. Because the trial court failed to conduct a meaningful inquiry on the
record to determine whether defense counsel divulged confidential information to the
prosecutor as alleged by Brown, the judgment of the trial court is reversed, Brown's
conviction is vacated, and the matter is remanded to the trial court for further
proceedings. This decision renders Brown's second assignment of error moot.
        {¶2} On August 14, 2012, Brown was arrested, and later charged with
Domestic Violence, R.C. 2929.25(A), a first degree misdemeanor. Brown entered a
plea of not guilty and executed a time waiver. The case proceeded to a bench trial,
with the State presenting the testimony of the victim and one police officer. Brown
appeared with his court appointed counsel; and as detailed below, requested a new
attorney, which the trial court denied without a hearing. As a result, Brown did not
present any testimony or evidence, and was removed from the courtroom during the
course of the proceedings due to his conduct. The trial court found Brown guilty as
charged and sentenced him to 180 days in jail, which the trial court stayed pending
appeal.
        {¶3} In his first of two assignments of error, Brown asserts:
        {¶4} "It is obvious that there was a total failure of communication between the
Appellant and his court-appointed counsel. The trial court erred by not appointing new
counsel for Darrell Brown."
        {¶5} An indigent defendant has the right to professionally competent, effective
representation, not the right to have a particular attorney represent him. State v.
Murphy, 91 Ohio St.3d 516, 523, 2001-Ohio-112, 747 N.E.2d 765. State v. McNeill, 83
Ohio St.3d 438, 452, 1998-Ohio-293, 700 N.E.2d 596. Therefore, an indigent defendant
must demonstrate good cause to warrant substitution of counsel, which contemplates a
breakdown in the attorney-client relationship of such severity as to jeopardize the
                                                                                        -2-


defendant's right to effective assistance of counsel. Murphy at 523; State v. Coleman,
37 Ohio St.3d 286, 525 N.E.2d 792 (1988), paragraph four of the syllabus. Examples of
good cause are "a conflict of interest, a complete breakdown in communication, or an
irreconcilable conflict which leads to an apparently unjust result." State v. Blankenship,
102 Ohio App.3d 534, 558, 657 N.E.2d 559, 574 (12th Dist.1995). "[O]nly in the most
extreme of circumstances should appointed counsel be substituted." State v. Glasure,
132 Ohio App.3d 227, 239, 724 N.E.2d 1165 (7th Dist.1999). Moreover, the defendant
bears the burden of demonstrating grounds that substitute counsel is warranted. State
v. Carter, 128 Ohio App.3d 419, 423, 715 N.E.2d 223 (4th Dist.1998).
       {¶6} Once an indigent defendant questions the adequacy of assigned counsel
during trial, the court must inquire into the complaint on the record. See State v. Prater,
71 Ohio App.3d 78, 82-83, 593 N.E.2d 44 (10th Dist.1990); State v. Deal, 17 Ohio St.2d
17, 244 N.E.2d 742 (1969), syllabus. When the timing of a request for new counsel is
an issue, a trial court may consider whether the defendant's request for new counsel
was made in bad faith. State v. Haberek, 47 Ohio App.3d 35, 41, 546 N.E.2d 1361
(8th.Dist.1988). A motion for new counsel made on the day of trial, "intimates such
motion is made in bad faith for the purposes of delay." Id.
       {¶7} A trial court's decision regarding a request for new counsel is reviewed for
an abuse of discretion standard. McNeill at 452. "Abuse of discretion means an error in
judgment involving a decision that is unreasonable based upon the record; that the
appellate court merely may have reached a different result is not enough." State v.
Dixon, 7th Dist. No. 10 MA 185, 2013-Ohio-2951, ¶21. "Factors to consider in deciding
whether a trial court erred in denying a defendant's motion to substitute counsel include
'the timeliness of the motion; the adequacy of the court's inquiry into the defendant's
complaint; and whether the conflict between the attorney and client was so great that it
resulted in a total lack of communication preventing an adequate defense.' " State v.
Jones, 91 Ohio St.3d 335, 342, 2001-Ohio-57, 744 N.E.2d 1163, quoting United States
v. Jennings, 83 F.3d 145 (6th Cir.1996).
                                                                                   -3-


      {¶8} On October 18, 2012, Brown's case was called for trial, at which point he
informed the trial court that he wanted new counsel:

             THE COURT: Darrell Brown. We are here this afternoon on the
      charge of domestic violence. Mr. Brown, have a seat at the counsel table,
      please.
             Attorney Ally, are you ready to proceed?
             MR. BROWN: (Inaudible.)
             THE COURT: You may not, sir; you may not, sir. We are set for trial
      today so we will proceed with trial. Anybody want to make any opening
      statement before we start?
             PROSECUTOR: We would waive opening statement.
             DEFENSE COUNSEL: We would waive opening statement, Your
      Honor. I understand that you said we would proceed with trial but just for
      the record my client has indicated that he does not want me to represent
      him in this case.
             THE COURT: Are you going to hire a lawyer, Mr. Brown?
             MR. BROWN: No, Your Honor.
             THE COURT: Well you have a very good lawyer so she is
      representing you.
             MR. BROWN: May I approach the bench, Your Honor?
             THE COURT: You may not approach the bench, Mr. Brown. We are
      set for trial today.
             MR. BROWN: There is something very important I have to say that I
      never got a chance to say.
             THE COURT: Concerning what?
             MR. BROWN: That I was here for my pretrial on the 29th. I told her
      something in confidential (sic) and she went back and told the Prosecutor
      so that violated our client/lawyer privilege.
                                                                                        -4-


              THE COURT: That did not violate any privilege, sir. Where do you
       think you got your legal knowledge from?
              MR. BROWN: Being in trouble enough to know that if I told her
       something in confidential (sic) she couldn't go back and tell the Prosecutor.
              THE COURT: Well, sir, I am not playing games with you on this.
       You have a very good lawyer. She is representing you. We are set for trial
       today and we are going to have a trial.
              So, Attorney Ally, call your first witness, please.

       {¶9} Because Brown requested new counsel the day of trial, this raises a
presumption that he made the request in bad faith for the purposes of delay. However,
Brown gave a specific, facially valid reason for requesting new counsel, but the trial
court made no inquiry to test whether Brown had overcome the presumption, and in fact
the attorney-client relationship had been compromised to such an extent that Brown no
longer had effective counsel. Although there is no right to a meaningful attorney-client
relationship, a "total lack of communication preventing an adequate defense" is a factor
the court should consider in evaluating a defendant's request for substitute counsel."
Jennings, supra, 83 F.3d at 148; Morris v. Slappy, 461 U.S. 1, 13-14, 103 S.Ct. 1610,
1617, 75 L.Ed.2d 610, 621 (1983).
       {¶10} The trial court's inquiry as to Brown's reasoning was dismissive and lacked
substance. When Brown stated he believed there was a violation of the attorney-client
privilege, the trial court did not question him regarding the details of the purported
statements. Instead, the trial court ruled that there was no violation, without the benefit
of any inquiry as to what was conveyed to the prosecutor. Additionally, counsel stated
from the beginning that Brown did not want to proceed to trial with her as the attorney; in
fact, later in the proceedings, Brown did not present a defense, instead telling the trial
court that he had "a lot of evidence to present but not with her." Thus, the record
demonstrates that there appeared to be a complete breakdown in communication
between Brown and his attorney, sufficient to overcome a presumption that the request
                                                                                          -5-


was made as a delay tactic. Thus, the trial court abused its discretion for failing to
inquire into Brown's allegations on the record. Accordingly, Brown's first assignment of
error is meritorious, Thus, Brown's conviction is vacated, and this matter is reversed and
remanded for a hearing on Brown's request for new counsel and a new trial.
       {¶11} In his second of two assignments of error, Brown asserts:
       {¶12} "The trial court erred in banishing the Appellant from the courtroom.
Brown's interjections of "may I speak" and "may I approach the bench" – in a non-jury
trial, no less – did not rise to the level of excluding his (sic) for disruptive behavior."
       {¶13} As a result of our decision regarding Brown's first assignment of error, this
assignment of error is moot. See App.R. 12(A)(1)(c).
       {¶14} In conclusion, the trial court erred by failing to conduct a meaningful inquiry
on the record regarding Brown's request for a new attorney. This decision renders
Brown's second assignment of error moot. Accordingly, the judgment of the trial court is
reversed, Brown's conviction is vacated, and the matter is remanded to the trial court for
further proceedings.
Vukovich, J., concurs.
Waite, J., concurs

                                                    APPROVED:


                                                    _________________________________
                                                    JUDGE MARY DeGENARO
