[Cite as State v. Barnes, 2018-Ohio-3273.]



                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 105964



                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                             BASIM BARNES

                                                        DEFENDANT-APPELLANT




                                          JUDGMENT:
                                    REVERSED AND REMANDED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-16-607475-A

        BEFORE: Laster Mays, J., E.T. Gallagher, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: August 16, 2018
                                 -i-
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender

By: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Daniel T. Van
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

        {¶1}     Defendant-appellant Basim Barnes (“Barnes”) is charged with five counts of gross

sexual imposition, three counts of rape, and one count of kidnapping against Jane Doe I

occurring on October 19, 2007. Barnes is also charged in counts six through nine for two rapes,

an aggravated robbery, and kidnapping of Jane Doe II on February 2, 2009. If convicted, Barnes

could potentially receive a life sentence of imprisonment.

        {¶2} Counsel from the Cuyahoga County Public Defender’s office was appointed to

represent Barnes in the case. A conflict check of the public defender’s office revealed that other

counsel had represented one of the victims on two prior occasions. 1 Counsel discussed the

matter with Barnes who expressed concern about the conflict, and counsel filed a motion to

withdraw from the case on May 12, 2017.

        {¶3} After a hearing on May 18, 2017, the trial court issued a June 2, 2017 judgment

entry and opinion denying the motion. After the filing of the July 3, 2017 appeal, this court sua

sponte ordered the parties to brief the following issue:

        Whether the denial of an appointed counsel’s motion to withdraw as counsel due
        to an alleged conflict of interest is a final appealable order giving the indigent
        defendant a right to an interlocutory appeal.

I.      Final Appealable Order

        {¶4} A defendant’s right to counsel is guaranteed to be free from conflicts of interest by

the Sixth Amendment to the United States Constitution. Parma v. Fonte, 8th Dist. Cuyahoga


        1
            The office of the public defender is a “firm” pursuant to Prof.Cond.R. 1.0. Journal entry No. 99134195
(June 2, 2017), p. 4. Members of the office are therefore required to maintain client confidences. Id.
No. 99147, 2013-Ohio-3804, ¶ 68, citing State v. Dillon, 74 Ohio St.3d 166, 167, 657 N.E.2d

273 (1995). This inalienable right, Barnes argues, entitles him to an immediate appeal as a

provisional remedy2 under R.C. 2505.02(B)(4).

        {¶5} R.C. 2505.02(B)(4) provides:

        (4) An order that grants or denies a provisional remedy and to which both of the

        following apply:

                (a) The order in effect determines the action with respect to the provisional
        remedy and prevents a judgment in the action in favor of the appealing party with
        respect to the provisional remedy.

                (b) The appealing party would not be afforded a meaningful or effective
        remedy by an appeal following final judgment as to all proceedings, issues,
        claims, and parties in the action.

Id.



        {¶6} Effectively, the statute prescribes a three-part test, each of which must be satisfied:



        “(1) the order must either grant or deny relief sought in a certain type of
        proceeding — a proceeding that the General Assembly calls a ‘provisional
        remedy,’ (2) the order must both determine the action with respect to the
        provisional remedy and prevent a judgment in favor of the appealing party with
        respect to the provisional remedy, and (3) the reviewing court must decide that the
        party appealing from the order would not be afforded a meaningful or effective
        remedy by an appeal following final judgment as to all proceedings, issues,
        claims, and parties in the action.”

State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785, 947 N.E.2d 651, ¶ 15, quoting State v.

Muncie, 91 Ohio St.3d 440, 446, 746 N.E.2d 1092 (2001).


        2
            “‘Provisional remedy’ means a proceeding ancillary to an action, including, but not limited to, a
proceeding for a preliminary injunction, attachment, discovery of privileged matter, suppression of evidence, a
prima-facie showing pursuant to section 2307.85 or 2307.86 of the Revised Code, a prima-facie showing pursuant to
section 2307.92 of the Revised Code, or a finding made pursuant to division (A)(3) of section 2307.93 of the
         {¶7} The denial of motions to disqualify counsel are “ancillary proceedings” that are

“not final and appealable under R.C. 2505.02(B)(4).” State ex rel. McGinty v. Eighth Dist.

Court of Appeals, 142 Ohio St.3d 100, 2015-Ohio-937, 28 N.E.3d 88, ¶ 19, citing Bernbaum v.

Silverstein, 62 Ohio St.2d 445, 406 N.E.2d 532 (1980).

         The order is not final and appealable under R.C. 2505.02(B)(4), because even if
         the order is considered the denial of a provisional remedy, and even if the order
         determines the action and prevents a judgment in favor of the appealing party with
         respect to the provisional remedy, [the requesting party] will still be afforded a
         meaningful and effective remedy after a jury trial by way of appeal.

Id.

         {¶8} Conversely, an order granting a motion to disqualify is a final appealable order

because the effect will be “irreversible.” Wilhelm-Kissinger v. Kissinger, 129 Ohio St.3d 90,

2011-Ohio-2317, 950 N.E.2d 516, ¶ 10. “ An order denying disqualification, however, lacks a

similarly permanent effect.” Id., citing Russell v. Mercy Hosp., 15 Ohio St.3d 37, 41, 472

N.E.2d 695 (1984). Delaying review of a denial “is consistent with the interests of judicial

economy.” Russell at ¶ 42.

         {¶9} While motions to disqualify opposing counsel are more frequently used to remove

opposing counsel in civil actions, they have also been employed in the criminal context where

defendants seek to disqualify, or retain, their own counsel as they have a Sixth Amendment right

to do.    The denial of a defendant’s right to be represented by “retained counsel” of the

defendant’s choice “is a final, appealable order.” Id. at ¶ 21, citing Chambliss, 128 Ohio St.3d

507, 2011-Ohio-1785, 947 N.E.2d 651, ¶ 18, citing United States v. Gonzalez-Lopez, 548 U.S.

140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006).



Revised Code.” R.C. 2505.02(A)(3).
         {¶10} The denial “results in a structural error that renders a postconviction appeal

meaningless because the defendant has been irretrievably deprived of the counsel’s advice and

representation at trial.” Id. at ¶ 21, citing Chambliss at ¶ 22. See also State v. Gordon, 152

Ohio St.3d 528, 2018-Ohio-259, 98 N.E.3d 251, ¶ 16.

         {¶11} Indigent criminal defendants have a Sixth Amendment right to have counsel

appointed by the court.3 State v. Ingram, 8th Dist. Cuyahoga No. 84925, 2005-Ohio-1967, ¶ 20,

citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). That right

“does not, however, guarantee that defendants will have their ‘counsel of choice.’” Id.

         {¶12}      An indigent defendant is required to demonstrate that the relationship with

counsel “has broken down to such a degree as to jeopardize [the] right to effective assistance of

counsel.”        (Citations omitted.)         State v. Badran, 8th Dist. Cuyahoga No. 90725,

2008-Ohio-6649, ¶ 8.           The trial court is required to inquire into the indigent defendant’s

complaint regarding the assigned counsel and to “make the inquiry part of the record.”

(Citations omitted.) Id. The trial court conducted an extensive inquiry on the record in this

case.

         {¶13} In State v. Anderson, 11th Dist. Geauga No. 2012-G-3108, 2013-Ohio-339, ¶ 21, a

defendant filed a “Motion to Terminate Counsel and Appoint New One.” Id. at ¶ 1. The

appellate court considered whether the trial court’s denial of the motion was a final appealable

order.

         {¶14} The appellate court first determined that the denial of the motion to disqualify

was a provisional remedy because it was “ancillary to the main action” pursuant to R.C.

2505.02(A)(3). Id. at ¶ 21. Satisfying this element allowed the court to shift its attention to the


         3
             See R.C. Chapter 120, “Public Defenders.”
next step, determining whether the elements of R.C. 2505.04(B)(4) were satisfied, constituting a

final appealable order.

       {¶15}    The court observed that the first two elements of the statute were satisfied

because “the resulting order determines the action with respect to the motion and prevents a

judgment in favor of the appealing party with respect to the motion.” Id. at ¶ 22, citing Freer v.

Loma Ents., 7th Dist. Mahoning No. 98 CA 194, 1999 Ohio App. LEXIS 6422, at 7-8 (Dec. 30,

1999) (involving the disqualification of counsel in civil action). See also Chambliss 128 Ohio

St.3d 507, 2011-Ohio-1785, 947 N.E.2d 651, ¶ 15, where the state conceded that the order denied

a provisional remedy and the order determined the action with respect to that remedy.

       {¶16} The remaining inquiry was whether the appellant would be denied “a meaningful

or effective remedy by an appeal after the final judgment.” Anderson, 11th Dist. Geauga No.

2012-G-3108, 2013-Ohio-339, ¶ 23. Citing portions of its decision in Freer, the court decided

that any alleged damage could be rectified after judgment or conviction and that if an appellant

could establish prejudice by the disqualification denial, the appellant could receive a new trial.

Id. at ¶ 25. “As a result, a decision in favor of [appellant] on ‘an appeal after final judgment will

not be a hollow victory.’ (Citation omitted.) In addition, ‘an immediate appeal is not mandated

to afford [appellant] a meaningful or effective review.’” Id., citing Freer at *10, and Bernbaum,

62 Ohio St.2d 445, 406 N.E.2d 532.

       {¶17} We find that the facts of this case are unique and require a different result than in

Freer. Counsel pointed to a specific conflict of interest between a current client who is charged

with a crime against a former client. The current client agreed that counsel should withdraw.

Barnes has the Sixth Amendment right to be represented by counsel who is not burdened by a

conflict of interest. “The principles of loyalty and independent judgment are fundamental to the
attorney-client relationship and underlie the conflict of interest provisions of these rules.”

Prof.Cond.R. 1.7, cmt. 1.

       {¶18} Prof.Cond.R. 1.7 applies to conflicts of interest involving current clients. Id.

Pertinent to the instant case, Prof.Cond.R. 1.7(a)(2) provides that a conflict of interest exists

where “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 a former client.” Id.

       {¶19} Though Prof.Cond.R. 1.7(b) allows for the clients to give consent in writing to

the representation, Prof.Cond.R. 1.7(c) provides that

       (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.

       {¶20} Counsel also expressed his concern about violating the duty of confidentiality

under Prof.Cond.R. 1.6 through 1.9. As is the case with Prof.Cond.R. 1.7, a former client may

waive confidentiality in writing, however:

       (c)     A lawyer who has formerly represented a client in a matter or whose
               present or former firm has formerly represented a client in a matter shall
               not thereafter do either of the following:

               (1) use information relating to the representation to the disadvantage of
                     the former client except as these rules would permit or require with
                     respect to a client or when the information has become generally
                     known;

               (2)     reveal information relating to the representation except as these
                       rules would permit or require with respect to a client.
Id.   Prof.Cond.R. 1.9, like Prof.Cond.R. 1.7, prevents counsel from zealously representing

Barnes.

       {¶21} Generally, “[t]he denial of a party’s motion to disqualify his or her opponent’s

attorney does not implicate the same concerns and does not render a postconviction appeal

meaningless.” (Emphasis sic.) State ex rel. McGinty v. Eighth Dist. Court of Appeals, 142 Ohio

St.3d 100, 2015-Ohio-937, 28 N.E.3d 88, ¶ 22.          However, we find that under the unique

circumstances of this case involving acknowledged conflict and confidentiality issues as well as a

defendant-victim relationship, there would be no “meaningful review of the decision” after final

judgment. R.C. 2505.02(B)(4); Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785, 947 N.E.2d

651, ¶ 15.

       {¶22} In this case, “there is no remedy on appeal that can ‘unring the proverbial bell.’”

Kenneth’s Hair Salons & Day Spas, Inc. v. Braun, 10th Dist. Franklin No. 17AP-816,

2018-Ohio-186, ¶ 10, citing Dispatch Printing Co. v. Recovery Ltd. Partnership, 166 Ohio

App.3d 118, 2006-Ohio-1347, 849 N.E.2d 297, ¶ 13 (10th Dist.).

       {¶23} We also find that our decision allowing immediate appeal from the pretrial denial

of a motion to withdraw by Barnes and his counsel supports the policy of preventing the “waste

of scarce judicial resources.” Chambliss at ¶ 22.

       {¶24} In light of our finding, we move forward with addressing the merits of the case.

II.    Assignment of Error

       {¶25}      Barnes’s single assigned error asks whether the trial court erred by denying the

public defender’s motion to withdraw due to a conflict of interest, violating Barnes’s Sixth

Amendment right to representation that is free from conflicts of interest.   We find that it did.
        {¶26} Attorneys Spadaro, Stanard, and Tylee are attorneys with the public defender’s

office. Spadaro is assigned to represent Barnes in the current action, a nine-count indictment

involving sexual assaults against Jane Doe I and Jane Doe II committed on or about October 19,

2007. Tylee represented Jane Doe I from November 12, 2014 to April 15, 2015 for one count

of domestic violence and two counts of felonious assault. Stanard represented Jane Doe I from

June 8, 2007 until September 20, 2007. Both cases resulted in dismissal of the charges.

        {¶27} Barnes states that the prior representation poses a conflict between Spadaro’s

duty to zealously represent Barnes and the duty of confidentiality and loyalty to the public

defender’s former client, Jane Doe I.

        I have a duty to represent my client in this case, Mr. Barnes, zealous [sic] within
        the bounds of the law. And to me that includes, among other things, a thorough
        investigation of the complaining witness. That’s not always such an easy task, of
        course, from the defense perspective. But because my office has represented that
        party, I have an advantage in that respect.

        ***

        Because I have a duty to represent Mr. Barnes zealously, so that includes
        investigating, to the best of my ability, however, I can legally, what I can learn
        about [Jane Doe I]. And I have access to this file and the lawyer that represented
        her.

(Tr. 5-6.)

        {¶28} Spadaro also explained that his duty to cross-examine Jane Doe I in this case is

impeded by his duty to Jane Doe I as a former client, infringing Barnes’s right to the effective

assistance of counsel.

        [E]ffective assistance of counsel includes, amongst other things, a — an attorney
        client-relationship that has its foundation in trust. Mr. Barnes should be able to
        trust his lawyer, that his lawyer is doing everything he can to zealously represent
        him.

(Tr. 11.)
        {¶29} As we acknowledged in our analysis of the finality issue, a defendant’s right to

counsel is guaranteed to be free from conflicts of interest by the Sixth Amendment to the United

States Constitution. Fonte, 8th Dist. Cuyahoga No. 99147, 2013-Ohio-3804, ¶ 68, citing Dillon,

74 Ohio St.3d 166, 167, 657 N.E.2d 273.

        {¶30} The trial court agrees that Barnes is entitled to conflict-free representation, and

acknowledges that “[t]here is no doubt that the interests” of Barnes and Jane Doe I conflict.

Journal entry No. 99134195 (June 2, 2017), p. 4. The trial court also recognized “Spadaro has

demonstrated that he owes the duty of confidentiality to [Jane Doe I].” Id.

        Prof.Cond.R. 1.9(c) * * * is not a prohibition against representation where a
        former client is involved, but imposes a duty on a lawyer in the form of a
        restriction on the use of information acquired during representation. That rule
        provides that a lawyer whose firm has formerly represented a client in a matter
        shall not thereafter use information relating to the representation to the
        disadvantage of the former client, unless the information has become generally
        known, or reveal information relating to the representation.

Id. at 5.

        {¶31} The trial court concluded, assuming arguendo that the public defender’s files

“contain confidences and secrets disclosed to them by [Jane Doe I] that would be useful in

defending” Barnes, Spadaro would “have only a duty to refrain from using [Jane Doe I’s]

confidential information to her disadvantage.”    Id. at 6. The trial court rejected the assertion

that Barnes “deserves a lawyer who at least appears to be doing everything possible to defend

him” determining that “every attorney outside of the public defender’s office” would be at the

same disadvantage of not having access and use of any confidential information contained in the

files of Jane Doe I. Id. at 5-6.

        {¶32}    A trial court has broad discretion in determining whether to remove

court-appointed counsel. State v. Patterson, 8th Dist. Cuyahoga No. 100086, 2014-Ohio-1621, ¶
19. An appellate court reviews the trial court’s decision to determine whether that discretion

has been abused.         Id.   An “abuse of discretion” implies that the court’s decision was

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

       {¶33}     Barnes has been charged with the sexual assault of Jane Doe I, an assault that

allegedly occurred in October 2007, mere weeks from the conclusion of the public defender’s

representation of Jane Doe I in the first case, and before representation in the 2014 case.

“Disqualification is appropriate when an attorney accepts employment in a case involving a

former client where there is a substantial relationship between the existing controversy and the

prior representation.”     State v. Henry, 6th Dist. Lucas No. L-12-1209, 2013-Ohio-2247, ¶ 17,

citing In re Smith, 11th Dist. Ashtabula Nos. 2005-A-0048 and 2005-A-0056, 2007-Ohio- 893, ¶

66, citing Morford v. Morford, 85 Ohio App.3d 50, 57, 619 N.E.2d 71 (4th Dist.1993).

       {¶34} “A lawyer must decline a new representation that would create a conflict of

interest, unless representation is permitted under division (b).” Prof.Cond.R. 1.7, cmt. 4.

Prof.Cond.R. 1.7(b) states that an attorney “shall not” represent a client where a conflict exists or

“would be created” “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 writing;

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

This exception does not apply.

       {¶35}     Spadaro asserts and Barnes agrees that there is a substantial risk that the conflict

in this case will prevent Spadaro from providing competent and diligent representation without

impacting the duty of confidentiality to Jane Doe I.     The trial court concluded that a conflict
exists but determined that Spadaro could provide effective assistance of counsel in spite of the

conflict.   We disagree with the trial court’s finding, and find that a substantial risk does exist in

this case where the interests of Barnes as the accused and Jane Doe I as the alleged victim are

directly divergent.

        {¶36}    We find that a conflict has been established.           The trial court abused its

discretion in denying the motion to withdraw in this case.     Barnes’s assigned error has merit.

III.    Conclusion

        {¶37} The trial court’s judgment is reversed.        The case is remanded to the trial court

for further proceedings in accordance with this opinion.

        It is ordered that appellant recover from appellee costs herein taxed.

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.

        A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



__________________________________________
ANITA LASTER MAYS, JUDGE

LARRY A. JONES, SR., J., CONCURS;
EILEEN T. GALLAGHER, P.J., DISSENTS WITH SEPARATE OPINION


EILEEN T. GALLAGHER, P.J., DISSENTING:

        {¶38} I respectfully dissent from the majority’s determination that the denial of a motion

to withdraw as counsel is a final appealable order. Assuming the trial court’s judgment denied
the defendant a provisional remedy, I would find the denial of counsel’s motion to withdraw does

not satisfy the requirements of R.C. 2505.02(B)(4).

       In order to qualify as a final, appealable order under R.C. 2505.02(B)(4), three
       requirements must be satisfied (1) the order must grant or deny a provisional
       remedy as that term is defined in the statute, (2) the order must in effect determine
       the action with respect to the provisional remedy, and (3) the appealing party
       would not be afforded a meaningful review of the decision if that party had to wait
       for final judgment as to all proceedings in the action.

State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 42, citing State v.

Upshaw, 110 Ohio St.3d 189, 2006-Ohio-4253, 852 N.E.2d 711, ¶ 15; State v. Muncie, 91 Ohio

St.3d 440, 446, 746 N.E.2d 1092 (2001).

       {¶39} In my view, there is nothing in this record to suggest that the defendant “would not

be afforded a meaningful or effective remedy by an appeal following final judgment as to all

proceedings, issues, claims, and parties in the action.” R.C. 2505.02(B)(4)(b). At this point,

defense counsel’s motion to withdraw is premised on potential conflicts that may arise during

counsel’s preparation for trial. If, during the course of the action, defense counsel encounters

the conflicts that were referenced in the motion to withdraw, the record will be further developed

for the reviewing court to ultimately determine whether the trial court’s denial of the motion was

error. If the defendant can establish that he was prejudiced by the court’s denial of the motion to

withdraw, then the defendant may receive a new trial. As a result, a decision in favor of the

defendant on an appeal after final judgment “‘will not be a hollow victory.’” State v. Anderson,

11th Dist. Geauga No. 2012-G-3108, 2013-Ohio-339, ¶ 25, quoting Freer v. Loma Ents., 7th

Dist. Mahoning No. 98CA194, 1999 Ohio App. LEXIS 6422, 9 (Dec. 30, 1999).

       {¶40} While the majority concludes that the trial court’s judgment improperly ignored an

established conflict, I believe such a holding is premature and does not comply with statutory
requirements of R.C. 2505.02(B)(4). Accordingly, I would dismiss this appeal for lack of a final

appealable order.
