[Cite as State v. Daniels, 2019-Ohio-5314.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :       MEMORANDUM OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2019-T-0079
        - vs -                                  :

RYAN DANIELS, SR.,                              :

                 Defendant-Appellant.           :


Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2019 CR
00199.

Judgment: Appeal dismissed.


Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, Ohio
44481-1092 (For Plaintiff-Appellee).

Antonio S. Nicholson, The Bradley Building, Suite 203, 1220 West Sixth Street,
Cleveland, Ohio 44113 (For Defendant-Appellant).



THOMAS R. WRIGHT, J.

        {¶1}     Appellant, Ryan Daniels, Sr., appeals the trial court's November 7, 2019

order overruling retained counsel’s motion to withdraw and Daniels’ motion to continue

the jury trial and permitting new counsel to enter an appearance. We dismiss.

        {¶2}     On November 5, 2019, Daniels’ retained counsel moved to withdraw and

to continue the jury trial scheduled to commence November 12, 2019. On this same

date, Daniels’ new counsel moved to enter an appearance. Emphasizing the late timing
of the motions and the delay on trial, the court overruled counsel’s motion to withdraw

and continue but permitted Daniels’ new counsel to enter an appearance.

       {¶3}   Appellee, the state of Ohio moves to dismiss the appeal for lack of final

appealable order. A court of appeals has jurisdiction to hear a criminal appeal from a

“judgment or final order.” R.C. 2953.02.

       {¶4}   R.C. 2505.02(B) defines the types of orders that constitute final

appealable orders:

       {¶5}   “(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment;

       {¶6}   “(2) An order that affects a substantial right made in a special proceeding

or upon a summary application in an action after judgment;

       {¶7}   “(3) An order that vacates or sets aside a judgment or grants a new trial;

       {¶8}   “(4) An order that grants or denies a provisional remedy and to which both

of the following apply:

       {¶9}   “(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.

       {¶10} “(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.

       {¶11} “(5) An order that determines that an action may or may not be maintained

as a class action * * *.”




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       {¶12} Daniels opposes dismissal arguing that the ruling denies him counsel of

choice and is therefore a final appealable order based on State v. Chambliss, 128 Ohio

St.3d 507, 2011-Ohio-1785, 947 N.E.2d 651.

       {¶13} However, Chambliss limits its holding to the removal of retained counsel of

choice. It holds “[a] pretrial ruling removing a criminal defendant's retained counsel of

choice is a final order subject to immediate appeal” because it renders a post-trial

appeal ineffective or meaningless. (Emphasis added.) Id. at syllabus, ¶ 22 citing R.C.

2505.02(B)(4).

       {¶14} Unlike Chambliss, the trial court’s decision before us does not remove

retained counsel of choice and allows new counsel to enter an appearance and

participate. Thus, Daniels is not denied counsel of choice.

       {¶15} Moreover, Chambliss relies in part on the U.S. Supreme Court’s decision

in United States v. Gonzalez-Lopez, 548 U.S. 140, 152, 126 S.Ct. 2557, 165 L.Ed.2d

409, (finding the denial of a defendant’s right to counsel of choice constitutes structural

error affecting the framework of the trial). Gonzalez-Lopez emphasizes that its holding

does not detract from a court’s “wide latitude in balancing the right to counsel of choice

against the needs of fairness * * * and against the demands of its calendar * * *.” Id.

Instead, trial courts continue to have the authority to limit a defendant’s right to counsel

of choice when faced with a belated request to change attorneys. Id. at 152 citing

Morris v. Slappy, 461 U.S. 1, 13, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983); accord State

v. Swogger, 5th Dist. Stark No. 2017CA00212, 2018-Ohio-3148, ¶ 59.




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      {¶16} Further,    the   denial   of   a   motion    for   a   continuance is    not

a final, appealable order. Miklovic v. Shira, 5th Dist. Knox No. 04-CA-27, 2005-Ohio-

3252, ¶ 25, citing Lamont v. Lamont, Geauga App. No. 2004-G-2591, 2004-Ohio-5515.

      {¶17} Appellee's motion to dismiss for lack of a final appealable order is granted.

      {¶18} Appeal dismissed.



TIMOTHY P. CANNON, J.,

MATT LYNCH, J.,

concur.




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