[Cite as State v. Redding, 2011-Ohio-5390.]


                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96121



                                      STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                 vs.

                                     ELEXIS REDDING
                                               DEFENDANT-APPELLANT




                              JUDGMENT:
                   AFFIRMED IN PART; REVERSED IN PART


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-539460

        BEFORE:           Cooney, J., Stewart, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: October 20, 2011
                                           2


ATTORNEY FOR APPELLANT

Timothy R. Sterkel
1414 South Green Road
Suite 310
Cleveland, Ohio 44121


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Carl Sullivan
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




COLLEEN CONWAY COONEY, J.:

       {¶ 1} Defendant-appellant, Elexis Redding (“Redding”), appeals his felonious

assault conviction and sentence.    We find some merit to the appeal and affirm the

conviction but remand the case for a limited hearing on court costs.

       {¶ 2} Redding was charged with felonious assault in violation of R.C.

2903.11(A)(1), with a pregnant victim specification, and domestic violence.         After

several pretrials, the parties reached a plea agreement in which the state agreed to nolle
                                            3

the pregnant victim specification and the domestic violence charge in exchange for

Redding’s guilty plea to felonious assault. At the plea hearing, the court conducted a

thorough Crim.R. 11 colloquy to ensure that he was entering his plea knowingly,

voluntarily, and intelligently, and Redding pled guilty to felonious assault.

       {¶ 3} Following the plea, Redding’s counsel advised the court that he had

previously represented the victim’s brother for a misdemeanor but did not realize the

connection to this client until the morning of the plea hearing. Defense counsel further

advised the court that he had shared the information with Redding’s mother and informed

Redding shortly before the plea hearing.          After questioning Redding to determine

whether he understood the potential conflict of interest, the court was satisfied that

Redding knowingly entered his plea and, therefore, the court concluded the plea hearing.

       {¶ 4} At a later date, the court sentenced Redding to a four-year prison term and

three years of postrelease control. Redding now appeals, raising two assignments of error.

                                Ineffective Assistance of Counsel

       {¶ 5} In the first assignment of error, Redding argues he was denied his Sixth

Amendment right to effective assistance of counsel because his trial counsel had a

conflict of interest. He contends that counsel’s previous representation of the victim’s

brother in Parma Municipal Court adversely affected his performance.

       {¶ 6} To prevail on a claim of ineffective assistance of counsel, a defendant must

show that counsel’s performance fell below an objective standard of reasonableness and
                                              4

that prejudice arose from counsel’s performance. Strickland v. Washington (1984), 466

U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d

136, 538 N.E.2d 373, paragraph two of the syllabus. A defendant must show that

counsel acted unreasonably and that, but for counsel’s errors, there exists a reasonable

probability that the result of the proceeding would have been different. Strickland at 696;

Bradley at paragraph three of the syllabus.

       {¶ 7} Counsel may be ineffective if his representation is divided by clients with

competing interests. The Sixth Amendment to the United States Constitution guarantees

that representation shall be free from conflicts of interest. State v. Dillon, 74 Ohio St.3d

166, 1995-Ohio-169, 657 N.E.2d 273.            In State v. Gillard, 78 Ohio St.3d 548,

1997-Ohio-183, 679 N.E.2d 276, the Ohio Supreme Court recognized 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.”

       {¶ 8} In order to establish a Sixth Amendment violation due to a conflict of

interest, “a defendant who raised no objection at trial must demonstrate that an actual

conflict of interest adversely affected his lawyer’s performance.” Cuyler v. Sullivan

(1980), 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333. “An actual conflict of

interest exists if, during the course of the representation, the defendants’ interests * * *

diverge with respect to a material factual or legal issue or to a course of action * * *.”
                                            5

State v. Rogers (Mar. 23, 1994), Adams App. No. 548 (discussing joint representation of

criminal defendants). A potential conflict of interest exists “* * * where the ‘interests of

the defendants may diverge at some point so as to place the attorney under inconsistent

duties.’” Gillard at 552, quoting Dillon at 168. In other words, a lawyer represents

conflicting interests “when, on behalf of one client, it is his duty to contend for that which

duty to another client requires him to oppose.” Id. citing State v. Manross (1988), 40 Ohio

St.3d 180, 182, 532 N.E.2d 735.

       {¶ 9} We find no actual or potential conflict of interest interfered with trial

counsel’s effective representation of Redding.          Trial counsel indicated that his

representation of the victim’s brother involved a misdemeanor in the Parma Municipal

Court that concluded approximately two years prior to his representation of Redding.

Counsel did not remember the prior case or make the connection between the victim and

his former client until the day of the plea hearing after the plea agreement had been

reached. It therefore did not affect counsel’s judgment in advising Redding to accept the

plea offer.    The court also determined, after thorough questioning, that Redding

understood the nature of the potential conflict of interest and affirmed that he was

nonetheless satisfied with counsel’s representation.

       {¶ 10} Moreover, we find nothing to suggest that counsel’s representation of the

victim’s brother required counsel to oppose Redding’s interests in this case. Therefore,
                                           6

counsel was not affected by any conflict of interest, and Redding would have pled guilty

even if counsel had never represented the victim’s brother.

      {¶ 11} Accordingly, the first assignment of error is overruled.

                                           Court Costs

      {¶ 12} In his second assignment of error, Redding argues that the trial court erred

when it imposed court costs in the sentencing journal entry without first orally addressing

court costs at his sentencing hearing. The State concedes this issue.

      {¶ 13} R.C. 2947.23(A)(1) provides that “[i]n all criminal cases the judge or

magistrate shall include in the sentence the costs of prosecution * * * and render a

judgment against the defendant for such costs.” In State v. Joseph, 125 Ohio St.3d 76,

2010-Ohio-954, 926 N.E.2d 278, ¶22, the Ohio Supreme Court held it is reversible error

for the trial court to impose costs in its sentencing entry when it did not impose those

costs in open court at the sentencing hearing. The court explained that although the error

does not void the defendant’s sentence, the defendant has been harmed because the trial

court’s failure to mention court costs during sentencing denied him the opportunity to

claim indigency and seek waiver of the payment of the costs. Id. Therefore, the court

remanded the matter to the trial court to allow the defendant to move for a waiver of the

payment of court costs. Id. at ¶23.
                                             7

       {¶ 14} The State concedes the trial court failed to impose court costs during

Redding’s sentencing. Accordingly, we reverse the trial court’s judgment as to costs and

remand the case to the trial court for a limited hearing on court costs.

       {¶ 15} Accordingly, we sustain Redding’s second assignment of error.

       Judgment affirmed in part and reversed in part.

       Case remanded for the limited purpose of a hearing on costs.

       It is ordered that appellant and appellee share 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.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR
