[Cite as State v. Robinson, 2018-Ohio-2403.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106329



                                               STATE OF OHIO

                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                        DIAMOND ROBINSON

                                                          DEFENDANT-APPELLANT




                                                JUDGMENT:
                                                 AFFIRMED




                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-17-614273-C

        BEFORE: McCormack, J., Kilbane, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: June 21, 2018
ATTORNEY FOR APPELLANT

Christopher M. Kelley
55 Public Square, Suite 700
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Kevin E. Bringman
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
TIM McCORMACK, J.:

       {¶1}   Defendant-appellant Diamond Robinson appeals his guilty plea, claiming he

entered it under duress because a codefendant was unaware that the state’s offer was contingent

on being accepted by the four co-offenders and because Robinson lacked faith in his trial

counsel. We affirm.

       {¶2} Robinson pleaded guilty to two counts of burglary in violation of R.C.

2911.12(A)(2), a single count of grand theft in violation of R.C. 2913.02(A)(1), and a single

count of receiving stolen property in violation of R.C. 2913.51. The trial court imposed an

aggregate prison sentence of 11 years.     All but the receiving stolen property counts were

consecutively imposed to each other.

       {¶3} During the change of plea colloquy, one of the codefendants sought to plead guilty

and was taken aback by the state’s requirement for unanimity among the co-offenders. Before

considering the issue, the trial court began the process of determining whether all the

codefendants would accept the plea offer.       During that inquiry, Robinson requested the

appointment of new counsel.      Upon being questioned, Robinson claimed that his attorney

precluded Robinson from taking possession of the discovery and that his trial counsel had lied

about the existence of a video that demonstrated Robinson’s involvement in the crime. The

state anticipated demonstrating Robinson’s complicity in the burglaries through two video clips,

one depicting particular clothing on Robinson on the morning of one of the burglaries and

another smart-phone video recording depicting a person wearing that same clothing in the

driver’s seat of a stolen 2016 KIA vehicle during the commission of the crime. Robinson

eventually admitted to viewing the combined video, but then claims there was a video shot from

another location that he had not viewed. The state explained that there was one video file that
contained multiple clips, and Robinson’s counsel indicated that the clips had been viewed with

Robinson.    Further, Robinson appeared to have knowledge of the video clips, bolstering

counsel’s explanation.

       {¶4} Robinson further complains that his counsel refused to provide Robinson the text

messages that Robinson sent confirming his involvement in the theft of the 2016 KIA vehicle or

his statement to police officers that included an alleged confession to at least one of the

burglaries. Before the burglary offenses were committed, Robinson stole a 2016 KIA to use

during the burglaries. Robinson sent a text message to a codefendant confirming he had the

stolen vehicle. Robinson claims his attorney discussed the evidence with him, but did not show

him his actual text messages or his statement to police officers in hard-copy form.

       {¶5} After the state proffered the anticipated evidence and the trial court rejected

Robinson’s arguments as a basis for new counsel, Robinson claimed a belief that his attorney

was not working for him because the evidence presented was fabricated.                The trial court

reiterated that Robinson had waited until the day of trial to voice his concerns, and essentially

under the applicable legal standard, nothing demonstrated a complete breakdown in the

attorney-client relationship. Robinson decided to plead guilty to the terms of the state’s original

offer — the same offer that had been rejected minutes earlier.

       {¶6} Importantly, Robinson concedes that the subsequent plea colloquy satisfied the

applicable standards under Crim.R. 11, and that the trial court had not participated in the plea

negotiations as contemplated under State v. Byrd, 63 Ohio St.2d 288, 291, 407 N.E.2d 1384

(1980) (“A trial judge’s participation in the plea bargaining process will be carefully scrutinized

to determine if it affected the voluntariness of the defendant’s plea.”).        Robinson’s only

contention is that he was under duress to plead guilty because his codefendant was unaware that
the state’s plea offer was contingent on acceptance by all codefendants and the trial court should

have appointed new counsel for trial.

       {¶7} It is well settled that a defendant is not deprived of due process when a plea bargain

is conditioned on acceptance by all codefendants. State v. Darling, 8th Dist. Cuyahoga No.

104517, 2017-Ohio-7603, ¶ 24; State v. Franks, 9th Dist. Summit No. 18767, 1998 Ohio App.

LEXIS 4756, 7 (Oct. 7, 1998), citing Nguyen v. United States, 114 F.3d 699, 704 (8th Cir.1997),

and Gonzales v. United States, 65 F.3d 814, 823 (10th Cir.1995); see also State v. Hlavsa, 8th

Dist. Cuyahoga No. 77199, 2000 Ohio App. LEXIS 4885, 14 (Oct. 19, 2000), citing State v.

Cray, 8th Dist. Cuyahoga No. 51534, 1986 Ohio App. LEXIS 9344, 1 (Dec. 18, 1986). The

decision to offer a plea or proceed to trial “lies within the discretion of the prosecutor.” Franks.

 This discretion extends to withholding offers altogether, as well as making the offer contingent

on acceptance by all codefendants.

       {¶8} In this case, the state exercised its discretion to frame the plea offer as a package

deal. Robinson’s argument is nothing more than an attempted end run around well-settled law.

Further, it is entirely based on his codefendant’s belief. Essentially Robinson complains that the

state’s plea agreement forced him to either plead guilty or go to trial. All defendants are

presented such a choice, and nothing demonstrates that his codefendant’s subjective belief was

relevant to or even impacted Robinson’s decision to plead guilty.

       {¶9} In response, Robinson claims to have been presented a Hobson’s choice, plead

guilty or proceed to trial with appointed counsel in whom Robinson lacked faith. We must

reiterate that “‘an indigent defendant’s right to counsel does not extend to counsel of the

defendant’s choice.’” State v. Patterson, 8th Dist. Cuyahoga No. 100086, 2014-Ohio-1621, ¶

20, quoting Thurston v. Maxwell, 3 Ohio St.2d 92, 93, 209 N.E.2d 204 (1965).
       {¶10}     Appellate courts “review a trial court’s decision whether to remove

court-appointed counsel for an abuse of discretion.” State v. Pendergrass, 8th Dist. Cuyahoga

No. 104332, 2017-Ohio-2752, ¶ 15, citing Patterson at ¶ 19. If the motion for new counsel was

timely, the trial court is required to determine “whether there had been a complete breakdown in

communication between the defendant and his counsel.” State v. Summerlin, 1st Dist. Hamilton

No. C-160539, 2017-Ohio-7625, ¶ 9, citing State v. Clark, 1st Dist. Hamilton No. C-020550,

2003-Ohio-2669, ¶ 7; State v. Murphy, 91 Ohio St.3d 516, 2001-Ohio-112, 747 N.E.2d 765;

State v. Gordon, 149 Ohio App.3d 237, 2002-Ohio-2761, 776 N.E.2d 1135, ¶ 13 (1st Dist.).

When timing is an issue, “the trial court may determine whether the defendant’s request for new

counsel was made in bad faith.” Pendergrass at ¶ 15, citing State v. Price, 8th Dist. Cuyahoga

No. 100981, 2015-Ohio-411, ¶ 18, and State v. Graves, 9th Dist. Lorain No. 98CA007029, 1999

Ohio App. LEXIS 5992 (Dec. 15, 1999). There is a presumption of bad faith that must be

overcome if the request for new counsel is made on the day of trial. Id., citing Price and State v.

Haberek, 47 Ohio App.3d 35, 41, 546 N.E.2d 1361 (8th Dist.1988).

       {¶11} Further, the defendant bears the burden of demonstrating the basis for the

appointment of new counsel. If a defendant fails to allege facts that, if true, would require the

appointment of new counsel, the trial court is not required to inquire into the claims on the

record. Patterson at ¶ 18, citing State v. Deal, 17 Ohio St.2d 17, 244 N.E.2d 742 (1969); see

also State v. Robinson, 8th Dist. Cuyahoga No. 105667, 2018-Ohio-285, ¶ 11.

       {¶12} In this case, and even if we give Robinson the benefit of every doubt, the trial court

considered each of Robinson’s unsupported accusations against his appointed counsel. The

record demonstrates that counsel communicated the state’s theory and anticipated evidence; that

Robinson was aware of, and actually well versed in, the evidence to be presented against him at
trial; and that Robinson’s requests of his attorney were at times beyond Robinson’s entitlements.

Nothing in the record indicates that Robinson’s trial counsel was unprepared for the trial or that

Robinson was prevented from aiding in his own defense because of a lack of information.

Robinson has not demonstrated that the trial court abused its discretion in denying his oral

motion to appoint new counsel first made on the day of trial.

       {¶13} Having overruled the sole assignment of error, we affirm the convictions.

       It is ordered that appellee recover from appellant 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. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated.      Case remanded to the trial court for execution of

sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




TIM McCORMACK, JUDGE

MARY EILEEN KILBANE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
