[Cite as State v. Johnson, 185 Ohio App.3d 654, 2010-Ohio-315.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




The STATE OF OHIO,

        APPELLEE,                                                 CASE NO. 5-09-28

        v.

JOHNSON,                                                          OPINION

        APPELLANT.




                Appeal from Hancock County Common Pleas Court
                          Trial Court No. 2009-CR-0017

                      Judgment Reversed and Cause Remanded

                           Date of Decision: February 1, 2010




APPEARANCES:

        Mark C. Miller and Drew A. Wortman, for appellee.

        Robert E. Searfoss III, for appellant.
Case No. 5-09-28


       WILLAMOWSKI, Presiding Judge.

       {¶1} Defendant-appellant, Brett Johnson, brings this appeal from the

judgment of the Court of Common Pleas of Hancock County. For the reasons set

forth below, the judgment is reversed.

       {¶2} On January 27, 2009, Johnson was indicted on two counts of

trafficking in cocaine, in violation of R.C. 2925.03(A), fifth-degree felonies.

Johnson entered a plea of not guilty on April 8, 2009. On May 12, 2009, a

change-of-plea hearing was held. Johnson’s attorney, Kenneth J. Sass, notified the

court at the hearing that there was a potential conflict of interest because the

confidential informant was a former client of Sass’s. The trial court then engaged

in a dialogue with Johnson concerning the conflict. Johnson indicated that he

wished to waive the conflict and proceeded to change his plea to one of guilty. On

July 13, 2009, the trial court sentenced Johnson to a total prison term of 22

months. Johnson now appeals the judgment and raises the following assignment

of error.

              The trial court violated [Johnson’s] right to assistance of
        counsel as provided by the Sixth Amendment to the United State[s]
        Constitution by failing to either appoint separate counsel or to
        inquire into the existence of an actual conflict of interest despite
        knowledge of a potential conflict of interest held by [Johnson’s] trial
        counsel.

       {¶3} The sole assignment of error alleges that the trial court erred by not

appointing different counsel when a conflict-of-interest issue was raised, thus


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denying him effective assistance of counsel. The Ohio Supreme Court has dealt

with the issue of conflict of interest by defense counsel in State v. Gillard (1992),

64 Ohio St.3d 304, 595 N.E.2d 878. In Gillard, the defendant was represented by

an attorney who also represented a witness, in a pending matter. Although the

attorney did not believe there was a conflict of interest and the parties expressed a

waiver of any conflict, the Ohio Supreme Court reversed the decision and

remanded for the trial court to hold a hearing to determine whether an actual

conflict of interest existed.   In doing so, the Ohio Supreme Court stated as

follows.

              In [Holloway v. Arkansas (1978), 435 U.S. 475, 98 S.Ct.
       1173, 55 L.Ed.2d 426], the United States Supreme Court concluded
       that defense counsel’s repeated objections to the joint
       representation, accompanied by his assertions of a risk of conflict of
       interest, required the state trial court to either appoint separate
       counsel or ascertain whether the risk of conflict was too remote to
       warrant the appointment of separate counsel. Id. at 484, 98 S.Ct. at
       1178, 55 L.Ed.2d at 434. The court held that the state trial court’s
       failure to inquire into the risk of conflict unconstitutionally
       endangered the defendants’ Sixth Amendment right to counsel and
       required reversal of the defendants’ convictions whether or not an
       actual conflict of interest existed, and whether or not prejudice
       could be shown. Id. at 487-491, 98 S.Ct. at 1180-1182, 55 L.Ed.2d
       at 436-438.

              Cuyler v. Sullivan [1980, 446 U.S. 335, 100 S.Ct. 1709, 64
       L.Ed.2d 333] is another case involving multiple representation.
       Sullivan, supra, stands for the proposition that the duty imposed in
       Holloway, supra, for a state trial court to inquire into the possibility
       of conflicts of interest posed by multiple representation only arises
       in cases where the trial judge knows or reasonably should know that
       a possible conflict of interest exists. Id. 446 U.S. at 346-347, 100


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      S.Ct. at 1717, 64 L.Ed.2d at 345-346. See, also, [Wood v. Georgia
      (1981), 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220]. Thus, the
      duty to inquire into the possible conflicts of interest posed by joint
      representation of codefendants may arise even though no party to
      the proceeding specifically objects to the multiple representation.

      ***

             In Wood, supra, former employees of an adult movie theater
      and bookstore were convicted for distributing obscene materials in
      violation of a Georgia statute. The employees received fines and
      jail sentences for their activities, but were placed on probation with
      the condition that they make regular installment payments toward
      satisfaction of the fines. When the employees failed to make the
      required payments, the matter proceeded to a probation revocation
      hearing where the employees offered evidence that they were unable
      to pay the fines and expected that their former employer would do
      so. At this hearing, the state raised the issue that the employees’
      attorney was hired by the former employer and, therefore, a possible
      conflict of interest existed. The trial court did not inquire into the
      alleged conflict and ordered revocation of the probations if
      arrearages were not paid within five days. Unable to make such
      payments, the employees moved to modify the conditions of their
      probation. The trial court denied this motion and ordered the
      employees to serve the remaining portions of their jail sentences.
      The Georgia Court of Appeals affirmed and the United States
      Supreme Court granted certiorari to determine whether the
      imprisonment of the employees solely because of their inability to
      make the installment payments violated equal protection guarantees.

             In Wood, supra, the United States Supreme Court, sua sponte,
      raised the issue concerning the possibility of a conflict of interest,
      stating that “[w]here, as here, a possible due process violation is
      apparent on the particular facts of a case, we are empowered to
      consider the due process issue.” Id. at 450 U.S. at 264-265, 101
      S.Ct. at 1100, 67 L.Ed.2d at 226. Based upon a review of the
      record, the court was unable to conclude whether the employees’
      attorney labored under an actual conflict of interest, but the court
      nevertheless held that “* * * the record does demonstrate that the
      possibility of a conflict of interest was sufficiently apparent at the


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Case No. 5-09-28


      time of the [probation] revocation hearing to impose upon the [trial]
      court a duty to inquire further.” Id. at 272, 101 S.Ct. at 1104, 67
      L.Ed.2d at 230-231. The court also found that any doubt as to
      whether the trial court should have been aware of the conflict-of-
      interest problem was dispelled by the fact that the state explicitly
      raised the issue at the probation revocation hearing and requested
      that the trial court look into it. Id. at 272-273, 101 S.Ct. at 1104, 67
      L.Ed.2d at 231. Accordingly, the Wood majority vacated the
      judgment of the Georgia appellate court and remanded the cause for
      a determination by the state trial court whether an actual conflict of
      interest existed. Id. at 273-274, 101 S.Ct. at 1104, 67 L.Ed.2d at
      231. The court further ordered that if the state trial court
      determined, upon remand, that an actual conflict existed (and that
      there was no valid waiver of the right to independent counsel), the
      trial court must conduct a new revocation hearing free from
      conflicts of interest. Id.

             A review of Holloway, Sullivan and Wood, supra, clearly
      demonstrates that where a trial court knows or reasonably should
      know of an attorney’s possible conflict of interest in the
      representation of a person charged with a crime, the trial court has
      an affirmative duty to inquire whether a conflict of interest actually
      exists. The duty to inquire arises not only from the general
      principles of fundamental fairness, but from the principle that where
      there is a right to counsel, there is a correlative right to
      representation free from conflicts of interest. See, generally, Wood,
      supra. Where a trial court breaches its affirmative duty to inquire, a
      criminal defendant’s rights to counsel and to a fair trial are
      impermissibly imperiled and prejudice or “adverse effect” will be
      presumed. See, e.g., Holloway, Sullivan and Wood, supra.

             Although we cannot be sure that an actual conflict of interest
      existed, there is a clear possibility of conflict of interest on the facts
      of this case. * * * The trial court was constitutionally required to
      conduct an inquiry into the possible conflict of interest to determine
      whether appellant had received, and would receive, the right to
      conflict free counsel guaranteed him by the Sixth Amendment to the
      United States Constitution.




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Case No. 5-09-28


              The argument has been raised herein that our review of the
       conflict-of-interest issue is limited to the plain error analysis of
       Crim.R. 52(B). This may be true but if a conflict of interest
       affecting appellant actually existed in this case, it would be clearly
       improper for us to speculate that the outcome of appellant’s trial
       would not have been different had appellant received representation
       free from conflicts of interest. We are keenly aware of the
       overwhelming evidence of appellant’s guilt, but it is our job to
       ensure that even this appellant receive the protections to which he is
       entitled.

Gillard, 64 Ohio St.3d at 309-312, 595 N.E.2d 878.

       {¶4} This court has addressed the duty of the trial court to inquire into

potential conflicts of interest in State v. McDuffie (May 23, 2001), 3d Dist. No. 9-

2000-92, 2001 WL 542114, and in State v. Myles (May 23, 2001), 3d Dist. No. 9-

2000-93, 2001 WL 542115.           Both of these cases involved codefendants

represented by one attorney. In those cases, this court affirmed the judgment

because the trial court explained to the defendants that there was a conflict of

interest, what this conflict could potentially mean to each of them, and that they

both had the right to have separate counsel appointed for them. The trial court

also advised the defendants that they had the right to change their minds and

request separate counsel at any time. After being given this information, the

defendants made an informed decision to waive the conflict of interest.

       {¶5} The duty to inquire, as set forth in Gillard, has been explained as

follows.




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             “When reviewing a claim of conflict of interest, this court
       must resolve two distinct issues. The first issue is whether the trial
       court had a duty to investigate the potential conflict of interest. See
       [Gillard, 64 Ohio St.3d 304, 595 N.E.2d 878]. If the answer to that
       inquiry is affirmative and the trial court did not make such an
       inquiry, then the case must be remanded to the trial court for its
       inquiry as to whether an actual conflict of interest existed. Id. at
       312, 595 N.E.2d at 883. If the answer to that inquiry is negative,
       then this court must determine whether an actual conflict of interest
       adversely affected the attorney’s performance. State v. Manross
       (1988), 40 Ohio St.3d 180, 532 N.E.2d 735, syllabus, certiorari
       denied (1989), 490 U.S. 1083, 109 S.Ct. 2106, 104 L.Ed.2d 667.”

State v. Walker (1998), 130 Ohio App.3d 247, 251, 719 N.E.2d 1042, quoting

State v. Ingol (1993), 89 Ohio App.3d 45, 48, 623 N.E.2d 598.

       {¶6} In this case, the question of a potential conflict of interest was raised

by defense counsel to the trial court, so the trial court and defense counsel were

aware of the potential conflict. Thus, pursuant to Gillard, 64 Ohio St.3d 304, 595

N.E.2d 878, the trial court had an affirmative duty to inquire as to whether an

actual conflict of interest was present. A review of the record indicates that the

trial court extensively discussed the effect of a waiver on the potential conflict of

interest, but did not inquire as to whether an actual conflict of interest was

present. The trial court also did not inform Johnson that he could have a new

attorney if he so wished. Without more information concerning the circumstances

of the conflict, this court cannot ascertain whether the waiver was sufficient. This

is especially true with regard to whether or not it was necessary to advise Johnson




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that another attorney would be appointed for him if Johnson was not comfortable

with the potential conflict as laid out by the court.

       {¶7} For example, if the representation of the informant was several

years earlier and on a matter entirely unrelated to the present case, there might

well be no actual conflict of interest and hence no need for any admonishment.

On the other hand, if the representation of the informant was related to matters

that led to the current charges against the defendant, there might be a conflict

significant enough to override even the most thorough of admonishments. Thus,

the trial court, in this case, needed to inquire into the prior representation of the

confidential informant to determine the required scope of the waiver, or whether

new counsel was required. Having failed to conduct this inquiry in this case, the

trial court did not comply with the requirements of Gillard, 64 Ohio St.3d 304,

595 N.E.2d 878.

       {¶8} Pursuant to Gillard, the matter must be reversed and remanded for

the trial court to hold a hearing to determine whether an actual conflict of interest

existed. Id. at 312. If a conflict of interest is found, the trial court must then

conduct a new trial free from conflicts of interest. Id. However, if no actual

conflict of interest is found, then no new trial is necessary. Id. For the reasons set

forth above, the assignment of error is sustained.




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      {¶9} The judgment of the Court of Common Pleas of Hancock County is

reversed, and the matter is remanded for further proceedings.

                                                                  Judgment reversed
                                                                and cause remanded.

      SHAW and PRESTON, JJ., concur.

                             __________________




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