[Cite as State v. Newman, 2016-Ohio-2667.]




                           IN THE COURT OF APPEALS OF OHIO
                               SIXTH APPELLATE DISTRICT
                                     WOOD COUNTY


State of Ohio                                    Court of Appeals No. WD-15-031

        Appellee                                 Trial Court No. 2013CR0060

v.

James S. Newman                                  DECISION AND JUDGMENT

        Appellant                                Decided: April 22, 2016

                                             *****

        Paul A. Dobson, Wood County Prosecuting Attorney, and
        David T. Harold, Assistant Prosecuting Attorney, for appellee.

        Eric Allen, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, James S. Newman, appeals from the October 28, 2013 judgment

of the Wood County Court of Common Pleas sentencing appellant to an aggregate

sentence of eight consecutive years of imprisonment following acceptance of his guilty

plea to ten counts: two counts of burglary, two counts of disrupting public services,
safecracking, possessing criminal tools, two counts of identity fraud, tampering with

evidence, and obstructing official business. Appellant did not timely appeal from this

judgment. However, on May 8, 2015, this court granted his motion for leave to file a

delayed appeal, appointed counsel to represent appellant, and ordered a transcript of

proceedings prepared at state expense (the plea and sentencing hearings were filed in the

record). On appeal, appellant asserts a single assignment of error:

              THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S

       REQUEST FOR NEW COUNSEL IN VIOLATION OF HIS RIGHT TO

       COUNSEL PURSUANT TO THE SIXTH AMENDMENT TO THE

       FEDERAL CONSTITUTION.

       {¶ 2} Appellant was indicted in February 2013, and counsel was appointed for him

because of his indigency. On June 28, 2013, during a pretrial hearing, appellant orally

asked for substitute appointed counsel. The trial court denied the request for new counsel

in a July 2, 2013 judgment wherein the court also indicated that during the hearing the

“case then went on the record.” However, no praecipe was filed by appointed counsel

and no transcript of this pretrial hearing was prepared for purposes of this appeal.

Eventually, appellant entered a guilty plea and was sentenced. On delayed appeal,

appellant challenges only that the denial of his request for substitute appointed counsel

violated his constitutional rights. For the reasons which follow, we affirm the trial

court’s judgment.




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       {¶ 3} The right to the assistance of counsel for criminal proceedings is guaranteed

under the Sixth Amendment to the United States, made applicable to the states through

the Fourteenth Amendment to the United States Constitution; the Ohio Constitution,

Article 1, Section 10; and Crim.R. 44. The United States Supreme Court has held that the

Sixth Amendment generally guarantees the right to representation by counsel of the

defendant’s choice. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55; 77 L.Ed. 158

(1932). Indigent defendants who do not have the means to hire their own lawyers do not

have a right to appointed counsel of their choice. Caplin & Drysdale, Chartered v.

United States, 491 U.S. 617, 624, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989); Wheat v.

U.S., 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); U.S. v. Iles, 906 F.2d

1122, 1130 (6th Cir.1990); Thurston v. Maxwell, 3 Ohio St.2d 92, 93, 209 N.E.2d 204

(1965). Indigent defendants have only the right to appointed counsel and to competent,

effective legal representation. Strickland v. Washington, 466 U.S. 668, 685-686, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶ 4} The defendant is entitled to new appointed counsel only upon a motion filed

timely and in good faith with a showing of “good cause, such as a conflict of interest, a

complete breakdown in communication or an irreconcilable conflict which leads to an

apparently unjust verdict.” United States v. Calabro, 467 F.2d 973, 986 (2d Cir.1972).

Accord Iles; State v. Murphy, 91 Ohio St.3d 516, 523, 747 N.E.2d 765 (2001); State v.

Coleman, 37 Ohio St.3d 286, 292, 525 N.E.2d 792 (1988), quoting People v. Robles, 2

Cal.3d 205, 215, 466 P.2d 710 (1970) (“the defendant must show ‘a breakdown in the




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attorney-client relationship of such magnitude as to jeopardize the defendant’s right to

effective assistance of counsel.’”) The substitution of counsel is a matter left to the

discretion of the trial court. Wheat at 163; Calabro; State v. Jones, 91 Ohio St.3d 335,

342, 744 N.E.2d 1163 (2001). The trial court’s decision is reviewed under an abuse of

discretion standard. Murphy, quoting State v. Cowans, 87 Ohio St.3d 68, 73, 717 N.E.2d

298 (1999).

       {¶ 5} Appellant’s only argument is that it is unconstitutional to allow a defendant

who has the assets needed to hire retained counsel to be able to substitute new counsel

but not an indigent defendant who must accept the attorney appointed by the court. We

disagree.

       {¶ 6} Even a defendant with retained counsel cannot automatically substitute new

counsel. Wheat (a defendant was not entitled to automatically substitute his retained

counsel with new counsel who would have a conflict of interest because he already

represented a co-conspirator). The United States Supreme Court held that “the essential

aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal

defendant rather than to ensure that a defendant will inexorably be represented by the

lawyer whom he prefers.” Id. at 159. The defendant’s choice of retained counsel is

permitted so long as that constitutional right does not unreasonably interfere with the

normal progress of a criminal case. Linton v. Perini, 656 F.2d 207, 211 (6th Cir.1981).

Therefore, even a defendant with retained counsel cannot automatically invoke this Sixth

Amendment right to the attorney of his choice. Although the defendant with retained




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counsel does not have to show good cause, the substitution of retained counsel is still a

matter left to the discretion of the trial court to balance “the accused’s right to counsel of

his choice and the public’s interest in the prompt and efficient administration of justice.”

Murphy, citing United States v. Jennings, 83 F.3d 145, 148 (6th Cir.1996).

       {¶ 7} In this case, however, we cannot review the trial court’s exercise of

discretion because appellant failed to request a transcript of the July 2, 2013 pretrial

hearing where this issue was argued or to file a substitute under App.R. 9(C). Without a

complete appellate record, we must presume the regularity of the proceedings. State

ex rel. Montgomery v. R & D Chem. Co., 72 Ohio St.3d 202, 204, 648 N.E.2d 821

(1995); Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 19, 520 N.E.2d 564 (1988);

Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). It is

the appellant’s duty to ensure that the record necessary for determination of the appeal

has been filed. Rose Chevrolet. Therefore, appellant’s sole assignment of error is not

well-taken.

       {¶ 8} Having found that the trial court did not commit error prejudicial to

appellant, the judgment of the Wood County Court of Common Pleas is affirmed.

Appellant is ordered to pay the court costs of this appeal pursuant to App.R. 24.


                                                                          Judgment affirmed.




5.
                                                               State v. Newman
                                                               C.A. No. WD-15-031




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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