[Cite as State v. Washington, 2012-Ohio-1531.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                  Nos. 96565 and 96568


                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                             BRIAN K. WASHINGTON
                                                       DEFENDANT-APPELLANT




                                      JUDGMENT:
                                 AFFIRMED; REMANDED
                                   FOR CORRECTIONS


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CR-535298 and CR-542057

              BEFORE:           Blackmon, A.J., Celebrezze, J., and Rocco, J.

              RELEASED AND JOURNALIZED:                    April 5, 2012
                                2
ATTORNEY FOR APPELLANT

John W. Hawkins
Center Plaza North
35353 Curtis Blvd., Suite 441
Eastlake, Ohio 44095


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Maxwell M. Martin
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
                                            3
PATRICIA ANN BLACKMON, A.J.:

       {¶1} Appellant Brian K. Washington (“Washington”) appeals his convictions for

theft of a motor vehicle and attempt to have a weapon while under disability and assigns

the following error for our review:

       Defendant was materially prejudiced by the failure of the court to

       inform defendant of his right to proceed pro se with a standby counsel

       appointed by the court after the court allowed his attorney to

       withdraw.

       {¶2} Having reviewed the record and pertinent law, we affirm Washington’s

convictions but remand for the trial court to correct the journal entry. The apposite facts

follow.

                                            Facts

       {¶3} On April 18, 2002, the Cuyahoga County Grand Jury indicted Washington

in Case No. CR-535298 for aggravated robbery, kidnapping, two counts of theft,

possessing a defaced firearm, and having weapons while under disability.1 Washington

initially entered a not guilty plea, and a bench trial commenced. On February 3, 2011,

after the trial began, Washington retracted his not guilty plea and entered a plea of guilt to

one count each of theft and attempt to have a weapon while under disability. The court



       Washington was also indicted in Case No. CR-542057 for receiving stolen
       1

property. Although the cases were consolidated for appeal, the motion to withdraw
Washington’s guilty plea, which is the subject of the instant appeal, was only filed
in Case No. CR-535298.
                                           4
would only accept the plea if both Washington and his co-defendant pled.              Both

defendants accepted the plea.

        {¶4} On February 7, 2011, Washington filed a pro se motion to withdraw his

plea.   On February 24, 2011, his trial counsel filed a motion to withdraw from

representing Washington because he did not agree with Washington’s motion to withdraw

his plea. After conducting a hearing, the trial court granted Washington’s counsel’s

motion to withdraw representation and set a hearing on Washington’s motion to withdraw

his plea. In so doing, the trial court explained to Washington that case law from the court

of appeals did not allow him to proceed with a pro se motion if he had appointed counsel

who did not agree with the motion. Washington still maintained he wanted counsel.

The court then appointed Washington new counsel in hopes his new attorney would adopt

Washington’s pro se motion to withdraw his plea.         However, Washington’s second

attorney also disagreed with Washington’s motion to withdraw his plea.

        {¶5} The trial court then explained to Washington that according to case law, the

only way it could proceed to review his pro se motion to withdraw his plea was if

Washington agreed to proceed pro se.        Washington refused to represent himself or

withdraw his motion. The trial court, therefore, concluded that Washington’s pro se

motion to withdraw his plea was not properly before the court and refused to consider the

motion. The trial court proceeded to sentence Washington to 36 months of community

control, 300 hours of community service, and drug rehabilitation.

                                Withdrawal of Guilty Plea
                                           5
       {¶6} In his sole assigned error, Washington contends the trial court did not

advise Washington that if he proceeded pro se, he could still consult with his appointed

attorney.

       {¶7}    “In Ohio, a criminal defendant has the right to representation by counsel or

to proceed pro se with the assistance of standby counsel. However, these two rights are

independent of each other and may not be asserted simultaneously.” State v. Martin, 103

Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, paragraph one of the syllabus. In

Martin, the Ohio Supreme Court noted that hybrid representation must be avoided

because it poses difficult ethical issues for counsel when there is a conflict between

counsel and the defendant as to how the case should proceed. Id. at ¶ 33. Standby

counsel is appointed to attend the trial and answer the defendant’s questions regarding

courtroom procedure. State v. Owens, 3d Dist. No. 1-07-66, 2008-Ohio-4161, at ¶

26.

       {¶8} In State v. Gatewood, 2d Dist. No. 2008 CA 64, 2009-Ohio-5610, at ¶46,

the court explained.

       The trial court did not discuss with Gatewood his right to proceed pro
       se with the assistance of standby counsel, which can be asserted
       independently of the right to representation by counsel, Martin, 103
       Ohio St.3d 385 at ¶ 32, 816 N.E.2d 227; nor can we tell if the court
       considered appointing standby counsel. McKaskle [v. Wiggins, 465
       U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984)]. We note that a pro se
       defendant does not enjoy an absolute right to standby counsel, see, e.g.,
       United States v. Kesser (C.A.8, Aug. 27, 2009), ___F.3d ___, Case Nos.
       07-3878, 08-3800, nor does he have an absolute right to have the court
       advise him of the possibility of standby counsel. See, e.g., United States
       v. Mendez-Sanchez (C.A.9, 2009), 563 F.3d 935. However, this may be
                                           6
       a part of analyzing a court’s decision to permit a trial to proceed
       without counsel.

       {¶9} In State v. Edmonds, 2d Dist. Nos. 24155 and 24156, 2011-Ohio-1282, the

defendant argued that his standby counsel was ineffective for not being present for all the

court proceedings and not providing more assistance. The Edmonds court held that

standby counsel cannot be deemed ineffective because:

       [n]umerous courts have recognized that a defendant enjoys no Sixth
       Amendment right to assistance from stand-by counsel. See, e.g., United
       States v. Keiser (8th Cir.2009), 578 F.3d 897, 903; United States v.
       Morrison (2nd Cir.1998), 153 F.3d 34, 55; Childress v. Johnson (5th
       Cir.1997), 103 F.3d 1221, 1232 (observing that “standby counsel is, in
       constitutional terms, no counsel at all”).

       {¶10}    Thus, based on this case law, the court was not obligated to inform

Washington that he could have the assistance of standby counsel.

       {¶11}    Because he chose to proceed with legal representation, the court could not

consider Washington’s motion to withdraw his plea, which his appointed counsel did not

agree with.    In a similar case, this court in State v. Pizzarro, 8th Dist. No. 94849,

2011-Ohio-611, held, “Had the trial court entertained defendant’s pro se motion while

defendant was simultaneously being represented by appointed counsel, this would have

effectively constituted hybrid representation in violation of the established law.” Id. at ¶

9. See also State v. Davis, 10th Dist. No. 05AP-193, 2006-Ohio-193, at ¶12 (“[W]here a

defendant who is represented by counsel files pro se motions and there is no indication

that defense counsel joins in those motions or indicates a need for the relief sought by the
                                            7
defendant pro se, such motions are not proper and the trial court may strike them from the

record.”) Accordingly, Washington’s sole assigned error is overruled.

      {¶12}    Although we affirm the trial court’s judgment, we must remand the matter

for the trial court to include in the journal entry the conditions of Washington’s

community control. The journal entry was sufficient to constitute a final appealable

order, pursuant to State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142.

However, as a matter of form, the journal entry should also include the conditions of the

community control imposed by the trial court.

      {¶13} Judgment affirmed; remanded for corrections.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution. The defendant’s convictions having been affirmed, any bail pending appeal is

terminated. Case remanded to the trial court for execution of sentence.

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

the Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
KENNETH A. ROCCO, J., CONCUR
