[Cite as State v. Suntoke, 2014-Ohio-1431.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :      JUDGES:
                                              :
                                              :      Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                  :      Hon. Sheila G. Farmer, J.
                                              :      Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
KALI SUNTOKE                                  :      Case No. CT2013-0032
                                              :
                                              :
        Defendant - Appellant                 :      OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Muskingum County
                                                     Court of Common Pleas, Case No.
                                                     CR2012-0101



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    April 2, 2014



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

RON WELCH                                            VALERIE K. WIGGINS
Assistant Prosecuting Attorney                       107 South Main Street
27 North Fifth Street                                New Lexington, OH 43764
Zanesville, OH 43701
                                                     D. Michael Haddox
                                                     P.O. Box 189
                                                     Zanesville, Ohio 43702
Muskingum County, Case No. CT2013-0032                                                       2

Baldwin, J.

      {¶1}    Defendant-appellant Kali Suntoke appeals his conviction and sentence

from the Muskingum County Court of Common Pleas on sixteen (16) counts of

pandering obscenity involving a minor. Plaintiff-appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On April 26, 2012, the Muskingum County Grand Jury indicted appellant,

who is in his 70s, on thirty-two (32) counts of pandering obscenity involving a minor in

violation of R.C. 2907.321(A)(1), felonies of the second degree, and one count of

pandering obscenity involving a minor in violation of R.C. 2907.321(A)(5), a felony of the

fourth degree. At his arraignment on May 2, 2012, appellant, who was represented by

court-appointed counsel Attorney Kevin Van Horn, entered a plea of not guilty to the

charges.

      {¶3}    On May 9, 2012, appellant filed a motion seeking modification of the

$500,000.00 cash, surety or property bond and a Request for a Bill of Particulars.

Pursuant to an Entry filed on May 9, 2012, the trial was scheduled for June 19, 2012.

The Bill of Particulars was filed on May 16, 2012. Following a hearing held on May 21,

2012, the trial court denied the request for bond modification. Appellant filed a written

time waiver on June 14, 2012.

      {¶4}    Appellee, on June 14, 2012, filed a motion seeking a continuance of the

trial. Appellee, in its motion, argued that counsel was scheduled to be in trial on June

14, 2012 and that counsel was scheduled to attend a seminar from June 21, 2012 to

June 23, 2012. Via an Entry filed on June 18, 2012, the trial court continued the trial to

August 21, 2012.
Muskingum County, Case No. CT2013-0032                                                      3


      {¶5}    Thereafter, on August 8, 2012, appellant filed a handwritten motion for the

appointment of new counsel. Appellant, in his motion, indicated that he had “no faith

and confidence” in the ability of his counsel because his counsel did not have jury trial

experience in his type of case. Appellant asked that an attorney from Columbus,

Cleveland or Cincinnati be appointed to represent him.

      {¶6}    On August 14, 2012, appellee filed a motion for a continuance of the trial

because a critical witness was not available for trial as scheduled. As memorialized in

an Entry filed on August 16, 2012, the trial was continued to October 9, 2012. Following

a hearing held on August 12, 2013, the trial court denied appellant’s request for new

counsel and appellant’s oral request for a continuance of trial. Subsequently, on

September 21, 2012, appellant filed a Motion Requesting a Competency Evaluation, a

Motion to Change Venue, and a Motion to Appoint Co-Counsel. Appellant also filed a

Motion Requesting Leave of Court to Enter a Not Guilty by Reason of Insanity Plea. The

trial court, pursuant to a Judgment Entry filed on September 21, 212, granted the latter

motion and appellant, on the same date, filed a written plea of not guilty by reason of

insanity.

      {¶7}    Via a Journal Entry filed on September 24, 2012, the trial court granted

appellant’s request for a competency evaluation and ordered that appellant be

evaluated for purposes of competency to stand trial and for purposes of determining his

sanity at the time of the alleged offenses. After a hearing held on December 10, 2012,

the trial court found that appellant was competent to stand trial. As memorialized in an

Entry filed on December 21, 2012, the trial court appointed Greg Myers of the Public
Muskingum County, Case No. CT2013-0032                                                     4


Defender’s Office as co-counsel. The trial, via an Entry filed on February 27, 2013,

was scheduled for April 9, 2013.

      {¶8}    Appellant, on March 28, 2013, filed a handwritten “Motion for

Release/Discharge of Attorney Kevin Van Horn.” Appellant, in his motion, alleged that

the service of Attorney Van Horn was no longer necessary and that he had no faith or

confidence in Van Horn’s ability to adequately represent him. Appellant argued that

Attorney Myers was sufficient.

      {¶9}    Appellee, on April 4, 2013, filed a Motion to Amend the Indictment,

seeking to amend Counts 10 through 18 and 22 through 27 by deleting “KALI

SONTOKE” from the image titles. Appellee sought to correct an error. The trial court

granted such motion as memorialized in an Order filed on April 5, 2013. Three days

later, a Journal Entry was filed granting appellant’s motion to release Attorney Kevin

Van Horn. On April 8, 2013, Attorney Elizabeth Gaba filed a Notice of Conditional

Appearance. In her notice, she stated that she would be counsel of record for appellant

if the trial court continued the trial date to a reasonable date. Also on April 8, 2013,

appellant filed a motion seeking a continuance of the April 9, 2103 trial. A hearing was

held on April 8, 2013. Pursuant to a Journal Entry filed on the same day, the motion for

a continuance was denied.

      {¶10}   Thereafter, on April 9, 2013, appellant, who was represented by Attorney

Greg Myers, withdrew his former not guilty plea and entered a plea of no contest to

Counts 1 through 9, 14, 15, 20, 21, 28, 29, and 32. On June 3, 2013, appellant

presented the trial court with a handwritten motion to withdraw his no contest plea. The

motion was filed on June 4, 2013. Via an Entry filed on June 6, 2013, the trial court
Muskingum County, Case No. CT2013-0032                                                  5


denied such motion after a hearing and sentenced appellant to an aggregate sentence

of seven (7) years in prison. The trial court also classified appellant a Tier II Sex

Offender. The remaining counts were nolled by appellee.

      {¶11}   Appellant now raises the following assignments of error on appeal:

      {¶12}   1. THE TRIAL COURT VIOLATED THE APPELLANT’S

CONSTITUTIONAL RIGHTS AND ABUSED ITS DISCRETION WHEN IT DENIED THE

DEFENDANT’S MOTION TO WITHDRAW HIS “NO CONTEST” PLEA.

      {¶13}   2. THE TRIAL COURT VIOLATED THE DEFENDANT’S SIXTH

AMENDMENT RIGHT TO COUNSEL WHEN IT ERRONEOUSLY DENIED THE

DEFENDANT’S CHOICE OF COUNSEL.

      {¶14}   3. THE DEFENDANT WAS RENDERED INEFFECTIVE ASSISTANCE

OF COUNSEL, THE CUMULATIVE EFFECT OF WHICH DENIED HIM OF HIS

CONSTITUTIONAL RIGHT TO COUNSEL.

      {¶15}   A. THE DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO

PARTICIPATE IN HIS OWN DEFENSE.

      {¶16}   B. THE DEFENDANT WAS ADVISED, AGAINST PROTEST, TO GO

AHEAD AND PLEAD TO THE CHARGES AND THEN WITHDRAW HIS PLEAS

LATER, BEFORE SENTENCING.

      {¶17}   C. NEITHER COUNSEL CHALLENGED THE SUFFICIENCY OF THE

INDICTMENT EVEN THOUGH THERE WERE DEFECTS IN THE FORM OF THE

INDICTMENT ON ITS FACE.

                                                 I
Muskingum County, Case No. CT2013-0032                                                         6


      {¶18}   Appellant, in his first assignment of error, argues that the trial court erred

in denying his motion to withdraw his no contest plea. Appellant had made such motion

before sentencing.

      {¶19}   Crim.R. 32.1, which governs the withdrawal of a guilty plea, provides:

      {¶20}   “A motion to withdraw a plea of guilty or no contest may be made only

before sentence is imposed; but to correct manifest injustice the court after sentence

may set aside the judgment of conviction and permit the defendant to withdraw his or

her plea.”

      {¶21}   This rule establishes a fairly strict standard for deciding a post-sentence

motion to withdraw a guilty plea, but provides no guidelines for deciding a presentence

motion. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992).

      {¶22}   The Ohio Supreme Court has stated pre-sentence motions to withdraw a

guilty plea “should be freely and liberally granted.” Id. at 526. That does not mean,

however, a defendant has an absolute right to withdraw a guilty plea prior to sentencing.

Id. at paragraph one of the syllabus. There must be “a reasonable and legitimate basis

for withdrawal of the plea.” Id. The decision to grant or deny a pre-sentence plea

withdrawal motion is within the trial court's sound discretion. Id. at paragraph two of the

syllabus.

      {¶23}   The factors to be considered when making a decision on a presentence

motion to withdraw a guilty plea are as follows: (1) prejudice to the state; (2) counsel's

representation; (3) adequacy of the Crim .R. 11 plea hearing; (4) extent of the plea

withdrawal hearing; (5) whether the trial court gave full and fair consideration to the

motion; (6) timing; (7) the reasons for the motion; (8) the defendant's understanding of
Muskingum County, Case No. CT2013-0032                                                    7


the nature of the charges and the potential sentences; and (9) whether the defendant

was perhaps not guilty or has a complete defense to the charge. State v. Cuthbertson,

139 Ohio App.3d 895, 898–899, 746 N.E.2d 197 (7th Dist.2000), citing State v. Fish,

104 Ohio App.3d 236, 661 N.E.2d 788 (1st Dist.1995). No one Fish factor is absolutely

conclusive. Cuthbertson, supra.

       {¶24}   At the hearing on appellant’s motion, appellant agreed that one of the

reasons he wished to withdraw his plea was because “Assistant Prosecutor Ron Welch

stated very, very clearly that, considering the age of the defendant in this case we

believe that the sentence that’s been recommended had the same effect as if it were to

recommend a 70-year sentence.” Transcript from June 3, 2013 hearing at 6-7. Appellant

also indicated that the second reason was because the Judge did not have to follow

such recommendation. Appellant also concurred that the third main reason he wanted

to withdraw his plea was because he believed that his counsel was not prepared to go

to trial.

       {¶25}   However, the following discussion took place on the record:

       {¶26}   “THE COURT: In reviewing that, before you changed your pleas to no

contest, you knew that the State was going to recommend seven years, correct, and

you pled no contest knowing that to be the recommendation?

       {¶27}   “THE DEFENDANT:              Yes.

       {¶28}   “THE COURT:      Also, I asked you at that time if you understood that I did

not have to follow that recommendation.

       {¶29}   “THE DEFENDANT:        Yes, sir.

       {¶30}   “THE COURT:      And you said yes, right?
Muskingum County, Case No. CT2013-0032                                                        8


      {¶31}     “THE DEFENDANT:        Yes.

      {¶32}     “THE COURT:      And you still understand that, right?

      {¶33}     “THE DEFENDANT:        Yes, sir.

      {¶34}     “THE COURT:      And regarding your third factor, I spoke very clearly with

Mr. Meyers at that time, and he indicated he was ready to go to trial. He was prepared

and ready. Do you remember he and I having that discussion on the record?

      {¶35}     “THE DEFENDANT:        Maybe.

      {¶36}     “THE COURT:      Well, we did.

      {¶37}     “MR. MEYERS:      I reminded Mr. Suntoke that the afternoon the day

before the plea hearing, which would have been Monday, April 8th. We were before this

Court when private counsel requested to be permitted to enter, and then at that time, it

was at that hearing that the Court addressed me directly asking were I ready to take the

case to trial if need be, and, of course, forthrightly I said I was ready.

      {¶38}     “THE COURT:      Thank you, Mr. Meyers. So those three reasons – those

three points that your make are no reason for me to allow you to withdraw your no

contest plea.

      {¶39}     “And I also asked if you withdrew all motions you had pending before the

Court at that time and also withdraw all those pending motions; do you remember that?

      {¶40}     “MR. MEYERS:      Mr. Suntoke may not have good recollection of what I

reminded him is a routine part of a plea colloquy. I remember you opening the file and

indicating there were perhaps a few pending motions, some pro se. It’s my recollection

- - certainly that could be wrong - - we withdrew all those motions.
Muskingum County, Case No. CT2013-0032                                                      9


      {¶41}   “THE COURT:      Thank you. So other than what we’ve just talked about,

Mr. Suntoke, is there anything else you would like to bring to my attention that I should

allow you to withdraw your no contest plea?

      {¶42}   “THE DEFENDANT:        Yes, Your Honor.

      {¶43}   “THE COURT:      Go ahead.

      {¶44}   “THE DEFENDANT:        As I said, Mr. Meyers, even Mr. Kevin Van Horn

and Mr. Meyers, we have never discussed the actuality of the case itself. We have

never discussed what motions need to be filed or what to be done.

      {¶45}   “THE COURT:      The motions are over.

      {¶46}   “THE DEFENDANT:        No, no, no motions are over now. What I’m saying

previously we had never discussed what motions are to be done.

      {¶47}   “THE COURT:      Let me pause you, Mr. Suntoke.

      {¶48}   “THE DEFENDANT:        Yes, sir.

      {¶49}   “THE COURT:      If you recall at your change of plea when you pled no

contest, I asked you if you were pleased with the representation of your attorney, and

you said yes. Do you recall that?

      {¶50}   “THE DEFENDANT:        I don’t exactly recall that.

      {¶51}   “THE COURT:      I assure you I asked you that.

      {¶52}   “THE DEFENDANT:        I believe you. I believe you, Your Honor.

      {¶53}   “THE COURT:      And I assure you you said you were pleased with his

representation of you. So anything else that needs brought to the Court’s attention?

      {¶54}   “THE DEFENDANT:        No.
Muskingum County, Case No. CT2013-0032                                                    10


      {¶55}   “THE COURT:       Based upon your letter and our discussion, I’m going to

deny your motion to withdraw your no contest plea.”Transcript from June 3, 2013

hearing at 8-11. Moreover, a review of the transcript from the April 9, 2013 plea hearing

demonstrates that the trial court engaged appellant in a thorough Crim.R. 11 colloquy

before accepting his plea.

      {¶56}   Based on the foregoing, we find that the trial court did not abuse its

discretion in denying appellant’s motion to withdraw his plea.

      {¶57}   Appellant’s first assignment of error is, therefore, overruled.

                                                 II

      {¶58}   Appellant, in his second assignment of error, argues that the trial court

violated his Sixth Amendment right to counsel when it denied his choice of counsel.

      {¶59}   “The right to counsel guaranteed by the Sixth Amendment of the United

States Constitution and Section 10, Article I of the Ohio Constitution does not always

mean counsel of one's own choosing. State v. Marinchek, 9 Ohio App.3d 22, 23, 457

N.E.2d 1198 (9th Dist. Medina 1983). The right to counsel must be balanced against the

public's right to prompt, orderly and efficient administration of justice. Id. Moreover, the

right of a defendant to select his own counsel is inherent only in the cases where the

accused is employing counsel himself. Thurston v. Maxwell, 3 Ohio St.2d 92, 93, 209

N.E.2d 204 (1965).

      {¶60}   The decision whether or not to remove court appointed counsel and allow

substitution of new counsel is addressed to the sound discretion of the trial court, and its

decision will not be reversed on appeal absent an abuse of discretion. State v. Pruitt, 18

Ohio App.3d 50, 480 N.E.2d 499 (8th Dist.1984).Id. “The term ‘abuse of discretion’
Muskingum County, Case No. CT2013-0032                                                    11


implies that the court's attitude is unreasonable, arbitrary or unconscionable.”

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

      {¶61}   As is stated above, Attorney Kevin Van Horn was originally appointed to

represent appellant. As memorialized in an Entry filed on December 21, 2012, the trial

court appointed Greg Myers of the Public Defender’s Office as co-counsel at the

request of Attorney Van Horn. Subsequently, at appellant’s request, the trial court

discharged Attorney Van Horn. Appellant, in his March 28, 2013 handwritten motion,

stated that “in these times of state budget deficits & controls I see no reason for the

State of Ohio to pay for two attorneys when one attorney in the form of Mr. Gregory

Myers would be sufficient.”

      {¶62}   Thereafter, on April 8, 2013 Attorney Elizabeth Gaba filed her Notice of

Conditional Appearance. In her April 8, 2013 motion for a continuance of the trial, she

stated, in relevant part, as follows:

      {¶63}   “Undersigned Counsel was contacted in November 2012 by Mr. Suntoke

regarding representation and promptly responded. Mr. Suntoke has stated that he

wrote three additional letters to Counsel but they were not received, and Counsel did

not hear again from Mr. Suntoke until 4-4-13. On that day a representative of Mr.

Suntoke contacted Counsel regarding proposed representation of Mr. Suntoke in this

matter as privately retained counsel.”

      {¶64}   The motion for a continuance was denied.

      {¶65}   Based on the foregoing, we find that the trial court did not violate

appellant’s rights when it refused to continue the trial so that Attorney Gaba would

represent appellant. Appellant was represented by qualified appointed counsel when he
Muskingum County, Case No. CT2013-0032                                                        12


entered his plea and did not have a right to counsel of his choosing. We note that as

late as March 28, 2013, appellant had indicated that Attorney Myers’ representation was

“sufficient”.

      {¶66}     Appellant’s second assignment of error is, therefore, overruled.

                                                  III

      {¶67}     Appellant, in his third assignment of error, argues that he received

ineffective assistance of trial counsel.

      {¶68}     A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show that counsel's performance fell

below an objective standard of reasonable representation and that but for counsel's

error, the result of the proceedings would have been different. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d

136, 538 N.E.2d 373 (1989). In other words, appellant must show that counsel's

conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied upon as having produced a just result. Id.

      {¶69}     Appellant initially argues that he received ineffective assistance of trial

counsel because he was not given an opportunity to participate in his own defense.

Appellant points out that in a May 29, 2013 letter to his counsel, which was attached to

appellant’s motion seeking to withdraw his plea, appellant raised the issue that he had

not had the chance to consult with his attorney concerning any trial issues. However,

the record is insufficient to demonstrate that counsel acted incompetently in

representing appellant or that actual prejudice resulted from such representation.
Muskingum County, Case No. CT2013-0032                                                     13


      {¶70}   Appellant also maintains that trial counsel was ineffective in advising

appellant, against protest, to go ahead and plead to the charges and then withdraw his

plea later before sentencing. However, there is nothing in the record supporting such

assertion. When asked at the sentencing hearing who gave him the impression that he

could file a motion for the withdrawal of his no contest pleas, appellant stated that he

read in a law book that he could file such a motion.

      {¶71}   Appellant finally argues that counsel was ineffective in failing to challenge

the sufficiency of the indictment. Appellee, on April 4, 2013, filed a Motion to Amend

Indictment. Appellee specifically sought to amend Counts 10, 11, 12, 13, 14, 15, 16, 17,

18, 22, 23, 24, 25, 26 and 27 by deleting “KALI SUNTOKE” from image titles. Such

counts contained language stating, in relevant part, that appellant “did… create,

reproduce, or publish any obscene material, to wit: Image titled KALI SUNTOKE… that

has a minor as one of its participants or portrayed observers;…” The trial court granted

such motion and deleted “Kali Sontoke” from the image titles.

      {¶72}   We note that appellee dismissed Counts 10, 11, 12, 13, 16, 17, 18, 19,

22, 23, 24, 25, 26, 27, 30, 31 and 33. Moreover, Crim.R. 7(D) provides in pertinent part:

      {¶73}   “The court may at any time before, during, or after a trial amend the

indictment * * * in respect to any defect, imperfection or omission in form or substance,

or of any variance with the evidence, provided no change is made in the name or

identity of the crime charged.”

      {¶74}   Thus, the trial court could amend the indictment so long as the

amendment did not change “the name or identity of the crime charged.” We find that the

trial court properly amended the indictment in accordance with Crim.R. 7(D) because
Muskingum County, Case No. CT2013-0032                                                    14


the amendment did not alter the name or identity of the crime charged. The

amendment added no new language to the indictment and did not add any additional

elements that the state was required to prove. We find that appellant’s claim that his

attorney was ineffective for failing to object to the amendment of the indictment lacks

merit because his attorney did not fall below an objective standard of representation.

Moreover, we find that appellant was not prejudiced by the amendment of the

indictment.

      {¶75}   Appellant’s third assignment of error is, therefore, overruled.
Muskingum County, Case No. CT2013-0032                                            15


      {¶76}   Accordingly, the judgment of the Muskingum County Court of Common

Pleas is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Farmer, J. concur.
