[Cite as State v. Linder, 2018-Ohio-741.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105462


                                       STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                            MARVIN BAXTER LINDER

                                                             DEFENDANT-APPELLANT




                               JUDGMENT:
                    AFFIRMED IN PART; REVERSED IN PART
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-608207-E

        BEFORE:           Jones, J., Keough, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED: March 1, 2018
ATTORNEY FOR APPELLANT

Russell S. Bensing
600 IMG Building
1360 East Ninth Street
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Jillian Eckart
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

         {¶1} In this appeal, defendant-appellant Marvin Baxter Linder (“Linder”) contends

that his counsel was ineffective in representing him on his pro se motion to withdraw his

plea. He further contends that the trial court abused its discretion by denying his pro se

motion to disqualify counsel. For the reasons that follow, we find that Linder’s counsel

was not ineffective, and thus we uphold Linder’s plea, but remand the case for

resentencing with new counsel.

                           I. Procedural and Factual Background

         {¶2} In July 2016, Linder, along with five codefendants, was charged in a 21-count

indictment.       The charges related to drug trafficking as part of a criminal gang.            Linder

retained counsel to represent him.1

         {¶3} Linder, through counsel, engaged in pretrial procedures and practices with the

state.       During plea negotiations, the state left two offers on the table in regard to

sentencing:       (1) a recommended prison range of 8 to 12 years, or (2) a recommended

prison range of 6 to 15 years.

         {¶4} The case was set for trial, and on the date trial was scheduled to commence,

the trial court entered an order allowing Linder time in the courtroom to meet with his

mother and father.       After the meeting with his parents, Linder agreed to plead guilty.

The agreement was that he would plead guilty to 13 counts of the indictment, and the


        Linder had two retained attorneys during the trial court proceedings.
         1
                                                                                  He discharged his first
counsel and his second retained counsel is the counsel at issue in this appeal.
parties would recommend to the court a sentencing range of 6 to 15 years.          The trial

court accepted the plea, finding that Linder knowingly, intelligently, and voluntarily

entered into it.   The court set the matter for sentencing.

       {¶5} Three days prior to the sentencing date, Linder filed two pro se motions:

one to disqualify his counsel and have new counsel appointed, and the other to withdraw

his guilty plea. Counsel first learned of the motions on the day of sentencing, which was

when the motions were considered by the trial court, prior to the imposition of sentence.

Motion to Disqualify Counsel

       {¶6} Linder addressed the court, and told it that his counsel had failed to show

Linder most of the discovery he obtained from the state.      Linder also complained that he

provided counsel with a list of witnesses whom Linder believed would have testified on

his behalf at trial, but his counsel failed to contact any of them. Linder further told the

court that “they made me take a deal against my will.”

       {¶7} The trial court judge told Linder that some of the discovery that the state

provides to defense counsel is for counsel only; it is not meant for the client to see. The

court further told Linder that

       It seems to me [counsel has] done a lot on your behalf. You just told me
       on the record everything that you know he has. So, he has police reports,
       he has statements, he has photos. He has all of this evidence, and you are
       just complaining because you haven’t seen it all, but he has it. It’s not a
       situation where you are coming in here and telling he hasn’t retrieved
       anything for you, that there’s all this outstanding discovery, that there’s
       statements that exist that you don’t have.

       I don’t see what he hasn’t done for you. You just put on the record
       everything that he’s done for you, not to mention all the pretrials that have
       been conducted as well.

       {¶8} Linder responded that he told counsel he had not been interested in taking a

plea, but had wanted to go to trial instead.

       {¶9} Linder’s counsel addressed the court.    He stated that “[i]t’s my duty, and I

took an oath to defend people the best way possible and sometimes that means that I have

to do things that even they don’t understand.” Counsel then told the court that even if it

did not sentence Linder to maximum, consecutive time, he was still exposed to a

significant sentence of at least 20 years because of the serious nature of the charges and

the numerous gang and gun specifications.

       {¶10} In response to Linder’s complaint about not seeing most of the discovery

provided by the state, counsel told the court that he was “walking a fine line of still

maintaining privilege,” but that Linder was concerned that, due to his inability to view

some of the discovery, he had no way of knowing whether counsel was just “making up”

statements. Counsel told the court that he was not going to “compromise [his] license

because someone challenges whether [he is] telling the truth * * *.”

       {¶11} Counsel further explained his advocacy for, and relationship with, Linder as

follows:

       No, he did not inspect the witness statement, but we have been over it time
       and time again what evidence would be presented against him. His
       attitude [was], I’m going to go to trial anyway. [It had] nothing to do with
       whether or not there were defenses, but just that he wanted to go to trial,
       and I told him repeatedly I wasn’t going to let him walk himself over a cliff
       just because.

       The court graciously allowed his parents time alone with him, cleared the
      courtroom. I stepped aside and even his father had a frank discussion with
      him that said, use your head. I raised you better than this. You are guilty
      of some stuff. This is fair and adequate.

      He wasn’t pressured. As a matter of fact, he stated in open court and on
      the record that no promises or threats were made to get him to take the plea.
      * * * [G]etting him to a point where he did take this plea was the best that
      could be done for him under the circumstances after going over every
      possible thing that would come up in court, including statements he made,
      evidence that was in his phone, things that his family continued to post on
      Facebook, talk to him about over the phone while he was in jail and to
      blindly say, so what, I want to go to trial was not in his best interest.

      So, I stand proud on the fact we were able to reach a plea offer. As a
      matter of fact, we started that day of trial with an eight-year minimum and
      the State and I even on the day of trial graciously continued to work to put
      something together that would benefit Mr. Linder. And I believe that at
      the end of the day and after almost a whole day’s work in court, we were
      able to hammer out something that ultimately I believe will result in a fair
      resolution of this.

      I didn’t neglect any of my duties.   If anything else, I’m trying to save Mr.
      Linder from himself.

      {¶12} After counsel stated the above, Linder then complained that counsel had

only been to see him three times in jail, which were brief, two to three minute visits.

Linder stated that because the visits were so brief, he and counsel never discussed his

defense. The court reviewed the docket and its notes, detailing other times, in addition

to the three visits, that Linder interacted with counsel. In doing so, the court made

reference to a psychological evaluation that Linder had, and stated “[t]hen your reports

came back and those were the ones to determine how to handle Mr. Linder.”         At that

point, defense counsel interjected, “Your Honor, if the court remembers, the report came

back that he was malingering.”     The court recalled that the malingering issue was
addressed.

         {¶13} Counsel informed the court that, from the beginning of the case, Linder had

been apprised of the state’s evidence:     “This evidence has been in front of him.       This

evidence has been irrefutable for two years.      Mr. Linder knows that, [so] my comment

[to him] was, don’t play games with going to trial, you are only going to hurt yourself.”

Counsel further commented, “I will stand on the work that’s been on the recommendation

based on the report that came back after all the time he spent at Northcoast and the fact

that Mr. Linder knows what he’s been doing, including filing these motions today.”

         {¶14} The assistant prosecuting attorney told the court that counsel’s

representation that some of the discovery the state provided to the defense was marked

“counsel only” was accurate.     The assistant prosecuting attorney also told the court that

“all of the evidence the State has provided throughout this entire case has remained the

same.”

         {¶15} Thus, the record demonstrates a robust colloquy, with Linder maintaining

that counsel did not sufficiently represent him, and counsel maintaining that he did.

Counsel’s final commentaries to the court included him saying the following: (1)            “I

can’t even formulate the words to sit here and listen to this man lie and say he knows

nothing and I didn’t discuss evidence * * * his attitude was so what, I want to go to trial

anyway”; (2) “It’s the game that not only he is playing today but was playing leading up

to taking a plea [but] I continue to say it is in his best interest to not let him walk himself

over a cliff”; and (3) “Don’t lie.”
        {¶16} Noting the work that counsel had done on behalf of Linder, and that Linder

had not previously voiced any dissatisfaction with counsel, but, in fact stated at the plea

hearing that he was satisfied with him, the trial court denied the motion to disqualify

counsel.

Motion to Withdraw Plea

        {¶17} The trial court first heard from Linder’s counsel on Linder’s request to

withdraw his plea. Counsel told the court that all of the constitutional rights that Linder

waived in pleading guilty were explained to him in the plea colloquy. He told the court

that he reviewed the waiver of the rights with Linder “over and over and over” again, but

that “[o]ne of the sticking points * * * [was that] Mr. Linder [did not] understand that one

witness’ testimony is enough, if believed by the jury, to be sufficient evidence to possibly

result in a conviction.” Counsel’s position, therefore, was as follows:

        So, with regard to withdrawing his guilty plea, in addition to everything that
        was stated in open court, in addition to everything that I counseled him
        about in getting him ready to take the plea, I will say since family was
        included and therefore confidentiality was broken, every single thing about
        what he was giving up was discussed with his mother and his father as well.
         This plea was entered into knowingly, intelligently, and voluntarily
        because that was in Mr. Linder’s best interest.

        {¶18} Linder responded that, during the meeting, counsel arranged, and the court

allowed, for him to talk to his parents, he was “basically forced * * * to take the deal, not

by [defense counsel] but by my mother and father.      I told them I did not want to take the

deal.   I wanted to go to trial.”

        {¶19} The trial court, reviewing the official transcript, informed Linder that he (1)
never indicated at the plea hearing that he was having any issues or difficulties with the

plea, (2) never hesitated, (3) indicated that he understood all of the constitutional rights he

was waiving, (4) indicated that he understood the possible sentencing penalties, including

that the trial court was not bound by the recommended sentencing range.

       {¶20} Linder continued to maintain that he was “forced and pressured by my

parents to take my plea.”   Counsel responded:

       Your Honor, my only comment with regard to all of that is * * * the

       colloquy Mr. Linder has engaged us in * * * can only be one of two things.

       It can either be a continuation of the kind of things he tried back in the

       summer of last year to manipulate this court and this process, or Northcoast

       did a remarkable job of restoration.    * * * I want the record to reflect that

       he’s mischaracterized not only his relationship with me but the

       conversations he had with his mom and dad. His mom and dad didn’t

       pressure him. His mom and dad begged him to do the right thing. I don’t

       know where the attitude, the resistance and the untrue allegations of this

       morning came from, but I would ask the court to continue with the sage

       advice he got from mom and dad and keep the plea.

       {¶21} The trial court denied Linder’s motion to withdraw his plea, and asked

counsel what he had to say on Linder’s behalf relative to sentencing.        Counsel told the

court that because he never received, nor was aware of until that day, Linder’s pro se

motions to disqualify him and withdraw his plea, he came “prepared to * * * talk about
how Mr. Linder took full responsibility for his actions and is remorseful.” Counsel

further told the court that “it’s hard to stand here in front of you and make that claim after

the hearing that we just had.”    Nonetheless, counsel told the court that he believed that

Linder could “change his life and one day be a contributing productive citizen,” and he

hoped that the court would not “hold * * * what we’ve been through against him and

sentence him just on what would have been presented had we gone to trial.”

       {¶22} The state outlined the case that would have been presented against Linder,

and in doing so, presented two law enforcement officials who informed the court about

Linder’s role in the criminal gang.   Thereafter, the trial court imposed a nine-year prison

term on Linder. Linder now appeals, presenting the following two assignments of error

for our review:

       I. The Defendant was denied the assistance of counsel, by virtue of his
       attorney’s complete abandonment of his role as an advocate for his client, in
       violation of Defendant’s rights under the 6th Amendment to the
       Constitution of the United States and Article I, Section 10 of the Ohio
       Constitution.

       II. The trial court erred and abused its discretion in failing to disqualify
       counsel and to permit counsel to continue to represent Defendant.

                                  II. Law and Analysis

       {¶23} The two assignments of error are interrelated and will be considered

together.   Linder’s contention in this appeal is that his plea was not knowingly,

intelligently, and voluntarily made because of his counsel’s deficient performance, and

that his counsel’s continued representation of him left him without counsel, because

counsel essentially defended his own work on the case rather than advocate for Linder.
       {¶24} According to Linder, we should review his ineffective assistance of counsel

claim under a structural-error analysis.   A structural error is a constitutional defect that

affects the framework within which the trial proceeds, rather than simply being an error in

the trial process itself.   State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d

917, ¶ 20.    Structural error gives rise to a conclusive presumption of prejudice as a

matter of law and thus requires automatic reversal. State v. Fisher, 99 Ohio St.3d 127,

2003-Ohio-2761, 789 N.E.2d 222,          ¶ 9-10.   A structural error permeates the entire

conduct of a trial so that the trial cannot reliably serve its function as a means for

determining guilt or innocence. Arizona v. Fulminante, 499 U.S. 279, 309-310, 111

S.Ct. 1246, 113 L.Ed.2d 302 (1991). The Ohio Supreme Court has admonished courts

to apply structural error with caution.        State v. Wamsley, 117 Ohio St.3d 388,

2008-Ohio-1195, 884 N.E.2d 45, ¶ 24; see also Colon at ¶ 21.

       {¶25} To establish a claim that counsel was ineffective under the Sixth

Amendment, a defendant normally must establish both that counsel performed deficiently

and that he or she was prejudiced by the deficient performance. State v. Spaulding, 151

Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 56, citing Strickland v. Washington,

466 U.S. 668, 686, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The United States

Supreme Court has “uniformly found constitutional error without any showing of

prejudice when counsel was * * * totally absent, or prevented from assisting the accused

during a critical stage of the proceeding.” United States v. Cronic, 466 U.S. 648, 659,

104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), fn. 25;             Strickland at 692 (“Actual or
constructive denial of the assistance of counsel altogether is legally presumed to result in

prejudice.”).

        {¶26} Upon review, we find that the structural error analysis does not apply to this

case.   Counsel was neither “totally absent” nor “prevented from assisting” Linder.

Rather, the record demonstrates that it was counsel’s belief that he had, and was,

advocating for the best possible outcome for Linder based on his confidential

communications with Linder and the evidence the state had against him.       Thus, we will

review to determine whether Linder suffered prejudice because of counsel’s performance.

        {¶27} That is, a reviewing court will not deem counsel’s performance ineffective

unless the defendant can demonstrate that counsel’s performance fell below an objective

standard of reasonable representation and that prejudice arose from the lawyer’s deficient

performance. Strickland at 687-688; State v. Bradley, 42 Ohio St.3d 136, 141-142, 538

N.E.2d 373 (1998).       The Ohio Supreme Court has held that “judicial scrutiny of

counsel’s performance is to be highly deferential and that reviewing courts must refrain

from second-guessing the strategic decisions of trial counsel.”    State v. Carter, 72 Ohio

St.3d 545, 558, 651 N.E.2d 965 (1995).

        {¶28} Furthermore, in reviewing an ineffective assistance of counsel claim when a

defendant was represented by retained counsel, as was the case here, it has been held that

the test is “whether the accused, under all the circumstances including the fact that he had

retained counsel, had a fair trial and substantial justice was done.” State v. Hester, 45

Ohio St.2d 71, 80, 341 N.E.2d 304 (1980).
       {¶29} In light of above, we review the plea to determine counsel’s performance in

representing Linder at that proceeding.          The record demonstrates that both prior to the

plea and during the plea proceeding counsel advocated on Linder’s behalf.            The record

also demonstrates that the trial court fully complied with all the Crim.R. 11 requirements

in taking his plea. Appellant indicated that he understood the rights he was waiving, that

he was freely and voluntarily waiving them, and the possible penalties that could result

from the plea. He further indicated that he was satisfied with his counsel.

       {¶30} Moreover, in addition to not raising any concerns about his plea at the actual

plea hearing, Linder told the court at the hearing on his pro se motions that it was his

parents, not counsel, who forced him to take the plea: “I was basically forced to * * * take

the deal, not by [counsel] but by my mother and father. I told them I did not want to

take the deal.      I wanted to go to trial.”     But, again, Linder never raised any concern at

the plea hearing.

       {¶31} Therefore, in reviewing for an abuse of discretion,2 we find no such abuse

in the trial court’s decision to deny Linder’s presentence motion to withdraw his plea.

And for the reasons already discussed, we find that counsel was not ineffective in his

representation of Linder.

       {¶32} In his second assignment of error, Linder contends that the trial court abused

its discretion by not disqualifying counsel. In line with what we have stated above, we

hold that counsel’s representation of Linder at the hearing on the motion to withdraw the

       2
           See State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).
plea was proper.    However, as counsel himself admitted in regard to sentencing, it was

“hard to stand here in front of you and make [a] claim [of Linder’s remorse] after the

hearing that we just had.” And even though counsel still advocated on behalf of Linder,

we nonetheless find that, under the circumstances of this case, counsel should have been

disqualified from representing Linder at sentencing.

       {¶33} Therefore, the first assignment of error is overruled and the second

assignment of error is sustained only as it relates to sentencing. The plea is upheld, but

the case is remanded for resentencing with new counsel.

       {¶34} Affirmed in part; remanded in part for further proceedings consistent with

this opinion.

       It is ordered that appellant and appellee split the 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.




LARRY A. JONES, SR., JUDGE

KATHLEEN ANN KEOUGH, P.J., and
ANITA LASTER MAYS, J., CONCUR
