text:
    STATE of Ohio, Plaintiff-Appellee v. Mose D. STEWART, Defendant-Appellant
    No. 105649
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: February 22, 2018
    Paul A. Mancino, Jr., Mancino Mancino & Mancino, 75 Public Square Building, Suite 1016, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Carl Mazzone, Assistant Prosecuting Attorney, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: Celebrezze, J., Laster Mays, P.J., and Keough, J.
    JOURNAL ENTRY AND OPINION
   FRANK D. CELEBREZZE, JR., J.:

{¶ 1} Defendant-appellant, Mose Stewart ("appellant"), brings this appeal challenging his convictions for attempted rape and disrupting public services. Specifically, appellant argues that he was denied his right to counsel and that his due process rights were violated when the trial court denied his motion and request to withdraw his guilty plea and failed to discuss the results of his competency evaluation on the record. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶ 2} The instant matter arose from a November 30, 2015 incident involving appellant and his cousin. In Cuyahoga C.P. No. CR-16-603483-A, appellant was charged in a four-count indictment on March 1, 2016, with (1) attempted rape, a second-degree felony in violation of R.C. 2923.02 and 2907.02(A) ; (2) gross sexual imposition, a fourth-degree felony in violation of R.C. 2907.05(A)(1) ; (3) kidnapping, a first-degree felony in violation of R.C. 2905.01(A)(4) with a furthermore specification alleging that "the victim of the offense is eighteen years of age or older"; and (4) disrupting public services, a fourth-degree felony in violation of R.C. 2909.04(A)(3). Appellant was arraigned on March 9, 2016. He pled not guilty to the indictment.

{¶ 3} Appellant waived his right to a jury trial and elected to try the case to the trial court. A bench trial commenced on December 15, 2016. During the state's case in chief, appellant decided to accept the plea agreement that the state offered during pretrial proceedings.

{¶ 4} On December 15, 2016, appellant pled guilty to attempted rape as charged in Count 1 of the indictment and disrupting public services as charged in Count 4 of the indictment. Counts 2 and 3 were nolled. Pursuant to the plea agreement, appellant would be required to register as a Tier III sex offender.

{¶ 5} Throughout the trial court's proceedings, appointed counsel made several requests to withdraw as counsel, appellant made several requests for new counsel, and appellant made multiple requests to withdraw his guilty plea. The trial court denied these motions and requests, which will be discussed in further detail in the analysis of appellant's first and second assignments of error below.

{¶ 6} The trial court held a sentencing hearing on January 5, 2017. During this hearing, the court reviewed appellant's reporting requirements as a Tier III sex offender. Appellant indicated that he did not understand the court's advisements. As a result, the trial court continued sentencing proceedings.

{¶ 7} The trial court held a sentencing hearing on January 12, 2017. Defense counsel advised the trial court that appellant wanted to have new counsel appointed to represent him and to withdraw his guilty plea. The trial court denied appellant's request for new counsel and to withdraw his guilty plea. Furthermore, counsel stated that he was concerned about appellant's mental and physical health and requested that appellant be referred for a psychological evaluation. The trial court referred appellant to Northcoast Behavioral Healthcare for a competency evaluation over the state's objection.

{¶ 8} The trial court held a hearing on March 6, 2017. The court indicated that it received the court psychiatric clinic's report, which concluded that appellant "is malingering and does not have a present mental condition that causes him to be unable to understand the nature and objective of the legal proceeding against him and assist in his defense." (Tr. 140.) The state stipulated to the court psychiatric clinic's report. Defense counsel and appellant objected to the report, and appellant specifically disputed the finding that he was malingering. As a result, the trial court continued the matter in order to schedule a hearing at which the doctor that evaluated appellant could testify regarding his evaluation and report.

{¶ 9} On March 27, 2017, the prosecutor, defense counsel, and appellant stipulated to the court psychiatric clinic's report. As a result, the trial court proceeded to sentencing. The trial court sentenced appellant to a prison term of six years on Count 1 and a prison term of 18 months on Count 4. The trial court ordered the counts to run concurrently. The trial court reviewed appellant's reporting requirements as a Tier III sex offender. Appellant indicated that he understood these requirements.

{¶ 10} The trial court also addressed appellant's violation of postrelease control in Cuyahoga C.P. No. CR-13-578539-B. The trial court terminated appellant's community control sanctions and ordered him to serve the balance of his sentence in prison. The trial court ordered appellant's six-year prison sentence to be served consecutively to the sentence for violating postrelease control.

{¶ 11} On April 7, 2017, appellant filed the instant appeal challenging the trial court's judgment. He assigns four errors for review:

I. [Appellant] was denied his right to counsel when the court refused to allow counsel to withdraw.
II. [Appellant] was denied due process of law when the court refused to allow [appellant] to withdraw his plea or conduct a hearing.
III. [Appellant] was denied due process of law when the court failed to record on the record the results of a competency evaluation.
IV. [Appellant] was denied due process of law when the court ignored [appellant's] request during a hearing.

II. Law and Analysis

A. Right to Counsel

{¶ 12} In his first assignment of error, appellant argues that he was denied his constitutional right to counsel when the trial court denied appointed counsel's motions to withdraw as counsel and appellant's requests for new counsel.

{¶ 13} Pursuant to the Sixth Amendment of the United States Constitution and Section 10, Article I of the Ohio Constitution, a criminal defendant has the right to counsel. State v. Milligan , 40 Ohio St.3d 341, 533 N.E.2d 724 (1988), paragraph one of the syllabus. A criminal defendant does not, however, have the right to counsel with whom he has a rapport or with whom he can develop a meaningful lawyer-client relationship. State v. Henness, 79 Ohio St.3d 53, 65, 679 N.E.2d 686 (1997). "Under the federal and state constitutions, the defendant is simply entitled to the effective assistance of legal counsel." State v. Hudson , 8th Dist. Cuyahoga No. 98967, 2013-Ohio-1992, 2013 WL 2150723, ¶ 7.

It is well established that an indigent defendant is not entitled to the counsel of his choosing, but rather, only the right to competent, effective representation. See [ State v. Murphy , 91 Ohio St.3d 516, 523, 747 N.E.2d 765 (2001) ]. Further, the right to counsel does not guarantee the defendant a meaningful relationship with counsel. See Morris v. Slappy (1983), 461 U.S. 1, 13-14, 103 S.Ct. 1610, 75 L.Ed.2d 610 ; State v. Pruitt (1984), 18 Ohio App.3d 50, 57, 18 Ohio B. 163, 480 N.E.2d 499. In order for a criminal defendant to discharge a court-appointed attorney, the defendant must show a breakdown in the attorney-client relationship of such magnitude as to jeopardize the defendant's right to the effective assistance of counsel. See State v. Coleman (1988), 37 Ohio St.3d 286, 525 N.E.2d 792, paragraph four of the syllabus. Thus, an indigent defendant is entitled to new counsel "only upon a showing of good cause, such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust result." State v. Edsall (1996), 113 Ohio App.3d 337, 339, 680 N.E.2d 1256 ; see , also , State v. Blankenship (1995), 102 Ohio App.3d 534, 558, 657 N.E.2d 559.

State v. Hawkins , 8th Dist. Cuyahoga No. 91930, 2009-Ohio-4368, 2009 WL 2624871, ¶ 63.

{¶ 14} This court reviews a trial court's decision on a motion to withdraw as counsel for an abuse of discretion. State v. Williams , 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 135. Similarly, we review a trial court's decision regarding a defendant's request for substitute counsel for an abuse of discretion. Hawkins at ¶ 63, citing Murphy , 91 Ohio St.3d at 523, 747 N.E.2d 765 (2001).

{¶ 15} In the instant matter, appointed counsel made several requests to withdraw as counsel, and appellant made several requests for new counsel throughout the trial court's proceedings. Counsel filed a motion to withdraw as counsel on September 18, 2016. Therein, counsel asserted that "counsel and [appellant] have differences that will not be resolved and it is in [appellant's] best interests, as well as counsel's [best interests] that [appellant] be represented by other counsel." The trial court addressed counsel's motion to withdraw during the September 20, 2016 hearing. In support of his motion to withdraw, counsel explained that he and appellant "have not been able to communicate," appellant did not agree with him about how to proceed with the case, and appellant would not listen to his recommendations. (Tr. 6.) Counsel explained that appellant "has stated repeatedly that he wishes to go to trial to prove his innocence." (Tr. 6.) Counsel stated that he had "no problem with going forward with trial." (Tr. 7.)

{¶ 16} The trial court asked appellant about the issues with appointed counsel. Appellant alleged that when he told counsel that he wanted to go to trial, counsel stated that he was "not going to fight for [appellant]." (Tr. 8.) Appellant further alleged that he was "not comfortable" with appointed counsel. (Tr. 29.) The trial court held counsel's motion to withdraw in abeyance and instructed appellant to spend the next three days thinking about whether he wanted to have a new attorney appointed to represent him.

{¶ 17} During the December 15, 2016 hearing, before appellant decided whether he wanted to proceed to trial or enter a plea, appellant asserted that he wanted a different lawyer. In support of his request for a new lawyer, appellant asserted, "[m]e and [counsel] never seen eye-to-eye. Been here for ten months. We never came to an agreement, we never came up on a good defense on my behalf. I ain't being represented properly." (Tr. 23.) The trial court denied appellant's request, explaining, "[y]ou [are not] going to get [a new lawyer]. [Counsel] has done everything he's supposed to do but for your cooperation. And just because you don't cooperate with him, doesn't mean I'm going to give you a different lawyer because there's no guarantee you're going to cooperate with a new lawyer." (Tr. 23.)

{¶ 18} The trial court asked for appointed counsel's input on the issue. Counsel stated, that he and appellant "have had an ongoing battle with regards to his representation. It has not gotten any better. It has gotten to a point where it's difficult to prepare him because of the conflicts that we have had ongoing." (Tr. 24.) When the trial court asked what type of conflicts had been ongoing between counsel and appellant, counsel explained,

[j]ust a lack of cooperation. * * * It doesn't matter what I say or I do, he's not happy, he's not satisfied. He has criticized my ability to represent him. He has made false statements about my desire to properly represent him, and I have filed a motion to withdraw. He has made requests that I no longer represent him. I would respectfully ask the Court to allow me to withdraw.

(Tr. 24.)

{¶ 19} The trial court determined that appellant failed to advance a legitimate reason to have new counsel appointed and that appellant did not identify any aspect of counsel's representation that was deficient. The trial court explained that appellant failed to cooperate with counsel and completely failed to "embrace his attorney and allow him to do his job[.]" (Tr. 24-25.) The trial court further stated that appointed counsel is "ready, willing, and able to do his job, and he's competent to do so." (Tr. 29.) The trial court emphasized that appellant is not entitled to new counsel simply because he does not like appointed counsel.

{¶ 20} During the trial court's Crim.R. 11 colloquy, appellant asserted that he was not satisfied with appointed counsel's representation. The trial court disagreed and opined that counsel "performed as an educated, competent, experienced attorney would." (Tr. 111.)

{¶ 21} Counsel filed a second motion to withdraw as counsel on January 5, 2017. Therein, counsel explained that after he filed the first motion to withdraw on September 18, 2016, "numerous incidents involving [appellant] have occurred which make it difficult to represent [appellant]. Nor is it in the best interest for either counsel or [appellant] to continue with representation of [appellant]." During the January 12, 2017 hearing, counsel informed the trial court that he filed the second motion to withdraw and that appellant no longer wants counsel to represent him. Counsel explained that his attorney-client relationship with appellant "is such that the communication is not there at all." Counsel asserted that he has attempted to communicate with appellant, and that the communications have been hostile and not productive. Appellant confirmed that he wanted a different attorney and alleged that he had not seen any evidence. The trial court denied counsel's second motion to withdraw and appellant's request for new counsel. The trial court concluded that there was no indication that counsel's performance was deficient, nor that appellant would be more productive or less hostile with another attorney.

{¶ 22} Finally, on February 21, 2017, counsel filed a motion to vacate appellant's guilty plea. Therein, counsel asserted, in relevant part, "[appellant] requests that he be assigned new counsel as the [a]ttorney-[c]lient relationship is beyond repair[.]" During the March 6, 2017 hearing, counsel informed the trial court that he had filed a motion for new counsel on appellant's behalf. The trial court stated that the issue was addressed during the January 12, 2017 hearing.

{¶ 23} In the instant appeal, appellant argues that the trial court should have granted his requests for new counsel and appointed counsel's motions to withdraw as counsel based on the differences and conflict between appellant and counsel. We disagree.

{¶ 24} Initially, we note that appellant's allegations regarding appointed counsel during the September 20, 2016 hearing were general and vague. Appellant generally alleged that counsel would not fight for him and that he was not comfortable with counsel. Appellant's allegations during the December 15, 2016 hearing that he and counsel did not see eye-to-eye and that counsel did not come up with a good defense on his behalf were also general and vague.

{¶ 25} In State v. Deal , 17 Ohio St.2d 17, 244 N.E.2d 742 (1969), the Ohio Supreme Court held that when an indigent defendant questions the effectiveness and adequacy of assigned counsel and requests new counsel, the trial court has a duty to inquire into the defendant's complaint and request and to make the inquiry a part of the record. Id. at syllabus. Subsequently, in State v. Johnson , 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, the Ohio Supreme Court explained that " 'the limited judicial duty [to inquire into a defendant's complaint about adequacy or effectiveness of counsel] arises only if the allegations are sufficiently specific; vague or general objections do not trigger the duty to investigate further.' " Id. at ¶ 68, quoting State v. Carter , 128 Ohio App.3d 419, 423, 715 N.E.2d 223 (4th Dist.1998).

{¶ 26} In this case, although appellant's allegations about counsel were not sufficiently specific, the trial court did, in fact, conduct an inquiry regarding appellant's concerns during both the September 20, 2016 and December 15, 2016 hearings. Specifically, the trial court inquired about the conflicts between appellant and counsel, the communication issues, and the disagreement about how to proceed with the case. Furthermore, regarding appellant's allegations and request for new counsel on December 15, 2016, the day that the matter was set for trial, this court has held that a motion for new counsel that is made on the day of trial "intimates such motion is made in bad faith for the purposes of delay." State v. Haberek , 47 Ohio App.3d 35, 41, 546 N.E.2d 1361 (8th Dist.1988). Accord State v. Frazier , 8th Dist. Cuyahoga No. 97178, 2012-Ohio-1198, 2012 WL 986477, ¶ 27.

{¶ 27} After reviewing the record, we find no basis to conclude that the trial court abused its discretion in denying counsel's motions to withdraw or appellant's requests for new counsel. The record does not reflect a complete breakdown in communications or irreconcilable conflict between appellant and counsel that jeopardized appellant's right to the effective assistance of counsel. Despite appellant's assertion that counsel would not fight for him at trial, appointed counsel indicated that he was prepared and willing to go to trial during both the September 20, 2016 and December 15, 2016 hearings. Although appellant did not agree with counsel about how to proceed with the case, nor listen to counsel's recommendations, counsel complied with his duty to provide appellant with an honest and candid appraisal of his case. See Hawkins , 8th Dist. Cuyahoga No. 91930, 2009-Ohio-4368, at ¶ 65, citing State v. Ketterer , 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 150.

{¶ 28} " 'Hostility, tension, or personal conflict between an attorney and a client that do not interfere with the preparation or presentation of a competent defense are insufficient to justify the withdrawal of appointed counsel.' " State v. Crew , 8th Dist. Cuyahoga No. 86943, 2006-Ohio-4102, 2006 WL 2300184, ¶ 17, quoting State v. Dykes , 8th Dist. Cuyahoga No. 86148, 2005-Ohio-6636, 2005 WL 3436338, ¶ 7. Although appointed counsel was clearly frustrated with appellant, and appellant clearly frustrated with counsel, there is no evidence in the record that the differences, conflict, or communication issues between the two prevented counsel from rendering effective assistance. The record reflects that counsel competently represented appellant by negotiating a plea agreement under which two out of the four counts in the indictment, third-degree felony gross sexual imposition and first-degree felony kidnapping, were nolled.

{¶ 29} Finally, appellant suggests that appointed counsel should have been allowed to withdraw because appellant was in the process of hiring new counsel. Appellant was free to retain counsel of his choosing at the outset of the criminal proceedings, but he did not do so. Appellant was declared indigent at his arraignment, and the trial court appointed counsel to represent him. Appellant's assertion that he was in the process of retaining private counsel to replace appointed counsel is entirely unsupported by the record.

{¶ 30} Based on the foregoing analysis, the trial court did not abuse its discretion in denying counsel's motions to withdraw or appellant's requests for new counsel. Appellant's first assignment of error is overruled.

B. Motion to Withdraw Guilty Plea

{¶ 31} In his second assignment of error, appellant argues that his due process rights were violated when the trial court denied his requests to withdraw his guilty plea without holding a hearing.

Crim.R. 32.1 allows a criminal defendant to motion the court to withdraw previously entered guilty pleas. Motions made prior to sentencing are governed by a liberal standard that should err on the side of granting withdrawal. State v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). However, "[a] defendant does not have an absolute right to withdraw a guilty plea prior to sentencing." Id. A motion made after sentence is imposed requires a movant to demonstrate a manifest injustice that would result were the motion denied. Crim.R. 32.1. A defendant must demonstrate a "reasonable and legitimate basis for the withdrawal of the plea." Xie at id. "[D]espite the more lenient standard applicable to [presentence] motions, an appellate court will only reverse a denial of leave to withdraw when the trial court has abused its discretion." State v. Peterseim , 68 Ohio App.2d 211, 213, 428 N.E.2d 863 (8th Dist.1980).

State v. Porch , --- Ohio App.3d ----, 2017-Ohio-8885, 86 N.E.3d 580, ¶ 11.

{¶ 32} This court has developed a nonexhaustive list of factors to consider in determining whether a trial court abused its discretion in ruling on a motion to withdraw a plea.

A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the plea, (3) when, after the motion to withdraw is filed, the accused is given a complete and impartial hearing on the motion, and (4) where the record reveals that the court gave full and fair consideration to the plea withdrawal request.

Peterseim at paragraph three of the syllabus.

{¶ 33} In the instant matter, during the January 12, 2017 hearing, defense counsel informed the trial court that appellant wanted to withdraw his guilty plea. Counsel explained that he had concerns about appellant's mental and physical health, and requested that appellant be referred for a psychological evaluation. The trial court gave the state an opportunity to respond to defense counsel's statements that appellant should be referred for a psychological evaluation and that he wanted to withdraw his plea.

{¶ 34} The prosecutor stated that this case is appellant's sixth criminal case, and that there was no indication that appellant had any mental health problems when he was sentenced to prison three years earlier, nor when appellant was incarcerated and applied for judicial release. The prosecutor explained that there was no indication that appellant had any mental health issues when the bench trial commenced on December 15, 2016. The prosecutor opined that appellant was trying to "obfuscate" the trial court's denial of counsel's motions to withdraw. The prosecutor argued that referring appellant for a mental or psychological evaluation would be nothing more than a tactic to delay the imposition of sentence. Accordingly, the state objected to a referral for a psychological evaluation. Finally, the state asserted that a formal motion to withdraw appellant's guilty plea was not filed, nor any basis for withdrawing the guilty plea.

{¶ 35} Appellant addressed the trial court during the January 12, 2017 hearing. He asserted that he wanted to withdraw his guilty plea. In support of his request, appellant stated that he was diagnosed with depression and pancreatitis in November 2015, he wanted a new attorney, and he had not seen any evidence.

{¶ 36} The trial court explained that appellant decided to plead guilty mid-trial. In response, appellant alleged that he was forced to plead guilty. The trial court rejected appellant's assertion, emphasizing that appellant voluntarily pled guilty and that he was not forced to do so. Nevertheless, the trial court stated that it would address appellant's request to withdraw his plea if he presented actual evidence that someone forced him to do so.

{¶ 37} Appellant asserted that he was promised that he was "going to get a misdemeanor." (Tr. 135.) The trial court explained that appellant was indicted with a felony rape offense.

{¶ 38} Thereafter, counsel filed a motion to vacate appellant's guilty plea on February 21, 2017. Therein, appellant asserted that he was not informed that by pleading guilty, he would be required to register as a sex offender for life, and that had he been informed of these reporting requirements, he would not have pled guilty.

{¶ 39} During the March 6, 2016 hearing, defense counsel informed the trial court that appellant filed a motion to vacate his guilty plea. In response, the trial court stated that "I think we went through that the last time [during the January 12, 2017 hearing]," and "I'm not going to do it again." The trial court explained, "In the middle of trial [appellant]-I went through everything. We did a full [colloquy] in terms of his rights, the potential charges, the maximum penalties and everything else. [Appellant] chose to plead mid-trial. He was fully advised of his rights." (Tr. 142.)

{¶ 40} In the instant appeal, appellant argues that he should have been permitted to withdraw his guilty plea because (1) "[i]t was obvious [he] had mental problems" and he had been referred for a psychiatric evaluation, (2) the trial court ignored his assertion that he was promised a minimum sentence, and (3) defense counsel made conflicting promises to him. Furthermore, appellant appears to contend that his plea was not knowingly and voluntarily entered because he was not given proper advice by counsel. We disagree.

{¶ 41} First, regarding appellant's mental health, counsel did not raise his concerns about appellant's mental health until the January 12, 2017 sentencing hearing. Neither counsel nor appellant indicated that appellant had any mental health issues when he pled guilty on December 15, 2016. When appellant was referred for an evaluation, the court psychiatric clinic concluded that appellant did not have any mental health conditions that affected his ability to understand or participate in the criminal proceedings and that appellant was malingering.

{¶ 42} Second, appellant's argument that the trial court ignored his assertion that he was promised a minimum sentence is entirely unsupported by the record. The trial court addressed appellant's statement that he had been promised a minimum sentence on two separate occasions, explained that the trial court has discretion to impose a sentence within the permissible statutory ranges set forth for the offenses to which appellant pled guilty, and confirmed that appellant understood that there was no promise that he would receive a particular sentence.

{¶ 43} Third, appellant does not specify what "conflicting promises" that counsel made to him that affected the knowing, voluntary, and intelligent nature of his plea. To the extent that appellant is referring to the fact that he was promised a minimum sentence, the trial court explained that there was no guarantee that he would, in fact, receive a minimum sentence. Nor is there any evidence in the record that counsel made such a promise to appellant.

{¶ 44} During the December 15, 2016 hearing, appellant's counsel explained that he mistakenly advised appellant that the disrupting public services offense charged in Count 4 was a misdemeanor, rather than a fourth-degree felony. To the extent that appellant is referring to counsel's mistake in arguing that counsel made "conflicting promises" to him, the record reflects that counsel identified and corrected his mistake before appellant pled guilty. Furthermore, both the prosecution and the trial court properly identified Count 4 as a fourth-degree felony when setting forth the terms of the plea agreement. Thus, counsel's incorrect advice about the degree of the disrupting public services offense does not affect the knowing, intelligent, and voluntary nature of appellant's guilty plea.

{¶ 45} In applying the Peterseim factors to this case, we cannot say that the trial court abused its discretion by denying appellant's motion and requests to withdraw his guilty plea. Regarding the first factor, the record reflects that appellant was represented by highly competent counsel. Counsel negotiated a plea agreement with the state under which the state agreed to nolle the third-degree felony gross sexual imposition count and the first-degree felony kidnapping count.

{¶ 46} Regarding the second factor, the record reflects that the trial court conducted a thorough Crim.R. 11 plea colloquy with appellant. The trial court addressed appellant's assertion that he was promised a minimum sentence and explained that there was no guarantee that appellant would receive a particular sentence.

{¶ 47} Regarding the third factor, although appellant had not filed a written motion to withdraw his guilty plea at the time of the January 12, 2017 hearing, the record reflects that the trial court afforded appellant a full hearing on his request to withdraw his guilty plea. The trial court allowed appellant and his counsel to set forth any grounds for withdrawal, and addressed the reasons that defense counsel and appellant presented. Appellant's statement that he was forced into pleading guilty is entirely unsupported by the record, and appellant failed to produce any evidence in support of his assertion.

{¶ 48} Regarding the fourth factor, the record reflects that the trial court gave appellant's request to withdraw his guilty plea full and fair consideration. We recognize that the trial court asserted that it would not consider appellant's request to withdraw his guilty plea during the January 12, 2017 hearing. Despite this assertion, the record reflects that the trial court did, in fact, give consideration to the plea withdrawal request. After defense counsel raised the issue, the trial court gave defense counsel, the prosecutor, and appellant an opportunity to address the plea withdrawal request. The trial court addressed appellant's assertions about being forced to plead guilty and that he had not seen any evidence. The court noted that appellant chose to plead guilty "mid-trial," presumably recognizing that appellant made the choice to plead guilty after listening to the testimony of the state's witnesses. Similarly, when defense counsel raised the issue during the March 6, 2017 hearing, the trial court reiterated that appellant, in the middle of the bench trial, chose to plead guilty after being fully advised of his rights, the nature of the charges, and the maximum penalties he faced. (Tr. 142.)

{¶ 49} The following additional factors can also be considered when reviewing a trial court's decision on a motion to withdraw a guilty plea: "(1) whether the motion was made in a reasonable time; (2) whether the motion states specific reasons for withdrawal; (3) whether the defendant understood the nature of the charges and the possible penalties and (4) whether the defendant was perhaps not guilty or had evidence of a plausible defense." State v. Heisa , 8th Dist. Cuyahoga No. 101877, 2015-Ohio-2269, 2015 WL 3632273, ¶ 19, citing State v. Pannell , 8th Dist. Cuyahoga No. 89352, 2008-Ohio-956, 2008 WL 603751, ¶ 13, and State v. Benson , 8th Dist. Cuyahoga No. 83178, 2004-Ohio-1677, 2004 WL 637775.

{¶ 50} The additional factors do not aid appellant. First, appellant's motion was not timely filed. Appellant orally requested to withdraw his guilty plea one month after entering the plea and on the date of the sentencing hearing, January 12, 2017. Appellant's written motion to withdraw was filed two months after he entered the plea on February 21, 2017.

{¶ 51} Second, the specific reasons for withdrawal set forth during the January 12, 2017 hearing were appellant's November 2015 depression and pancreatitis diagnoses, appellant wanted a new attorney, appellant had not seen any evidence, appellant was forced to plead guilty, and appellant was promised a misdemeanor.

On the other hand, the specific reason for withdrawal set forth in the February 21, 2017 motion was that appellant was not advised of his registration requirements as a Tier III sex offender. Appellant's vague assertions that he was forced to enter the guilty plea, had not seen any evidence, and was promised a minimum sentence lack evidentiary support.

{¶ 52} Third, the transcript demonstrates that appellant fully understood the nature of the charges, the penalties, and the details of the plea agreement worked out with the state. Although defense counsel misinformed appellant that Count 4 was a misdemeanor, counsel's mistake was corrected before appellant pled guilty. The trial court also explained that there was no guarantee that appellant would receive a minimum sentence.

{¶ 53} Fourth, appellant did not present evidence of a plausible defense. He did not offer any real defense to the charges against him.

{¶ 54} Based on the foregoing analysis, we find that the trial court did not abuse its discretion in denying appellant's motion and requests to withdraw his guilty plea. The record supports the trial court's conclusion that appellant failed to demonstrate any legitimate basis for withdrawing his plea. Accordingly, appellant's second assignment of error is overruled.

C. Competency Evaluation

{¶ 55} In his third assignment of error, appellant argues that his due process rights were violated when the trial court failed to discuss the results of his psychological/competency evaluation on the record.

{¶ 56} The issue of appellant's competency was not raised before trial, nor during the December 15, 2016 hearing, during which a bench trial commenced and appellant decided to plead guilty. Appellant's counsel raised his concerns about appellant's mental health for the first time during the sentencing hearing on January 12, 2017. Based on counsel's concerns, the trial court referred appellant to Northcoast Behavioral Healthcare for a competency evaluation.

{¶ 57} Contrary to appellant's assertion that the trial court failed to discuss the results of his competency evaluation, the record reflects that the trial court discussed the results of the evaluation during the March 6, 2017 hearing. The trial court indicated that the court psychiatric clinic completed a report on February 24, 2017, which "indicated that [appellant] is malingering and does not have a present mental condition that causes him to be unable to understand the nature and objective of the legal proceeding against him and assist in his defense." (Tr. 140.) Accordingly, appellant's due process rights were not violated with respect to the results of the competency evaluation.

{¶ 58} Furthermore, during the March 27, 2017 sentencing hearing, the state, defense counsel, and appellant stipulated to the court psychiatric clinic's report. This court has held that the competency issue can be waived by the parties in a criminal proceeding. State v. Lewis , --- Ohio App.3d ----, 2017-Ohio-461, 84 N.E.3d 294, ¶ 29 (8th Dist.), citing State v. Asadi-Ousley , 8th Dist. Cuyahoga No. 96668, 2012-Ohio-106, 2012 WL 114269, ¶ 10. "[W]here a defendant stipulates to competency, a trial court need not hold a hearing pursuant to R.C. 2945.37(B) because a hearing is only needed to introduce evidence rebutting the presumption of competency established in R.C. 2945.37(G)." Asadi-Ousley at ¶ 10, citing State v. Smith , 8th Dist. Cuyahoga No. 95505, 2011-Ohio-2400, 2011 WL 1935826, ¶ 6.

{¶ 59} Based on the foregoing analysis, appellant's third assignment of error is overruled.

D. Appellant's Requests

{¶ 60} In his fourth assignment of error, appellant argues that his due process rights were violated when the trial court disregarded his requests for new counsel and to withdraw his guilty plea. These arguments have already been addressed in the analysis of appellant's first and second assignments of error. Furthermore, as noted above, the record reflects that the trial court did not ignore appellant's requests for new counsel or to withdraw his guilty plea. Rather, the trial court considered the requests, heard arguments from the parties, and denied the requests. Accordingly, appellant's fourth assignment of error is overruled.

III. Conclusion

{¶ 61} After thoroughly reviewing the record, we affirm appellant's convictions. Appellant was not denied his constitutional right to counsel, and the trial court did not abuse its discretion in denying appellant's requests for new counsel or counsel's motions to withdraw; the trial court did not abuse its discretion in denying appellant's motion and requests to withdraw his guilty plea. Appellant's due process rights were not violated with respect to the results of appellant's psychological/competency evaluation.

{¶ 62} Judgment affirmed.

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

      Appellant pled guilty to two counts of drug trafficking in December 2013, and was sentenced to two years in prison. Appellant was granted judicial release in January 2015.

      Cuyahoga C.P. No. CR-13-578539-B.

      Although the trial court asserted that appellant was charged with "F-1 rape," appellant was charged in Count 1 with attempted rape, a second-degree felony. (Tr. 135.)


source: Caselaw Access Project

author: LARRY A. JONES, SR., J.: EILEEN T. GALLAGHER, J., DISSENTING:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Michael G. HAWTHORNE, Defendant-Appellant
    No. 105121
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: March 29, 2018
    Susan J. Moran, 55 Public Square, Suite 1616, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, BY: Andrea N. Isabella, Assistant County Prosecutor, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Jones, J., Keough, P.J., and E.T. Gallagher, J.
    JOURNAL ENTRY AND OPINION
   LARRY A. JONES, SR., J.:

{¶ 1} Defendant-appellant, Michael Hawthorne ("Hawthorne"), appeals his convictions on two counts of felonious assault with firearm specifications. For the reasons that follow, we reverse and remand.

{¶ 2} In 2016, Hawthorne was charged with attempted murder and felonious assault with one- and three-year firearm specifications and with an additional count of felonious assault. He was charged in a separate case with having weapons while under disability. The trial court consolidated the two cases for trial over the objection of defense counsel. The following pertinent facts were presented at the jury trial.

{¶ 3} Brittany Austin ("Austin") and Hawthorne dated on and off through high school until 2015 and had three children together. Austin started dating James Cooperwood ("Cooperwood") in November 2015.

{¶ 4} On January 10, 2016, Hawthorne dropped the children off at their mother's house after spending some time with them. Soon thereafter, Austin called Hawthorne to inquire about Cooperwood's duffel bag, which contained CDs and DVDs Cooperwood sold for cash. The couple alleged that Hawthorne stole it. After Austin's attempts to get Hawthorne to come over failed, Cooperwood called Hawthorne, and Hawthorne agreed to come over.

{¶ 5} Cooperwood went downstairs to meet Hawthorne. On his way, he grabbed a bat and told Austin he was "about to bust the b[* * *] head open." Moments later, Austin heard gunshots and went downstairs to find Cooperwood bleeding on the front porch. She did not see who shot Cooperwood.

{¶ 6} Cooperwood sustained a gunshot injury to both legs and a shattered femur. He initially identified Hawthorne as the shooter, but during trial, Cooperwood testified that he had never met Hawthorne and did not remember telling police that Hawthorne had shot him. After further questioning, however, Cooperwood testified that Hawthorne shot him. According to Cooperwood, he argued with Hawthorne on the phone about the duffel bag and told Hawthorne "to come back over and return my things, or it was going to be a problem. He actually came back, but he came back empty handed. When I approached him, he shot me. That's it. That's what happened." Cooperwood admitted he had a bat, but denied threatening Hawthorne with the bat, testifying that the bat was "laying up against the rail."

{¶ 7} After the state presented its evidence, the court asked defense counsel if anyone would be testifying for the defense. Counsel indicated that he had subpoenaed a witness who had shown up to court on previous occasions but did not appear pursuant to the current subpoena. According to defense counsel, this witness would support the claim that Hawthorne was attacked by Cooperwood. The court stated it would issue a material witness warrant for the witness, but, before the warrant was issued, the court informed counsel that the defense of self-defense applied only in cases where the defendant him or herself took the stand. The court told defense counsel that it would give "as much time as you want to try to secure this person, but that person isn't the person who can testify and give you the self-defense argument. So if you're going to argue self-defense to this jury * * * then the only way that comes in is if Mr. Hawthorne testifies."

{¶ 8} Hawthorne chose not to testify in his own defense, and the court did not instruct the jury on self-defense.

{¶ 9} The jury convicted Hawthorne of one count of felonious assault and one count of felonious assault with one- and three-year firearm specifications and acquitted him of the remaining charges. The trial court sentenced him to a total of five years in prison.

{¶ 10} Hawthorne filed a notice of appeal and has raised the following assignments of error for our review:

I. The trial court denied the appellant due process and his right under Crim.R. 30(A) when the trial court failed to instruct the jury on self-defense and aggravated assault.
II. The appellant was denied effective assistance of counsel in violation of Amendments VI and XIV, United States Constitution and Article I, Section 10, Ohio Constitution.
III. Appellant was denied due process and a fair and impartial trial as guaranteed by the 5th, 6th, and 14th Amendments of the U.S. Constitution and Article I, Section 16 of the Ohio Constitution based on prosecutorial misconduct.
IV. The trial court erred by prejudicially joining two cases which effectively violated appellant's due process and right to a fair trial.

{¶ 11} After oral arguments were heard in this case, we issued the following order: "Sua sponte the parties are ordered to brief the issue of whether the trial court erred to the prejudice of Hawthorne when it informed him that he had to testify in order to advance a claim of self-defense."

{¶ 12} The parties complied with our order and submitted supplemental briefs. The above sua sponte order will be addressed with the first assignment of error, which is dispositive of this appeal.

{¶ 13} The Fifth and Fourteenth Amendments to the Constitution guarantee every criminal defendant the right to remain silent. Although a criminal defendant has a Fifth Amendment right not to testify, self-defense is an affirmative defense that requires the defendant to prove all the elements. See R.C. 2901.05(A) ("The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.")

{¶ 14} The United State Supreme Court has held that Ohio's self-defense statute does not violate due process by placing the burden of proof on the defendant. Martin v. Ohio , 480 U.S. 228, 230, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987). But because the burden of proving a claim of self-defense is on the defendant, it may be necessary for a defendant to testify in order to establish that defense. State v. Seliskar , 35 Ohio St.2d 95, 96, 298 N.E.2d 582 (1973), citing State v. Champion , 109 Ohio St. 281, 142 N.E. 141 (1924). By the very nature of a claim of self-defense, "no one is in a better position than the defendant to provide evidence to aid the jury in determining whether the defendant's acts were justified." Id. citing id. If a defendant cannot provide evidence on the issue of self-defense other than his or her own testimony, then, in order to avail him or herself of the defense, he or she must testify. "In such event, the choice is that of the defendant, and, once he [or she] has decided to rely on self-defense and is required by the circumstances to testify in order to prove that defense, he [or she] necessarily must waive his [or her] constitutional right to remain silent." Seliskar at id.

{¶ 15} Thus, a defendant who does not testify is not precluded from requesting an instruction on self-defense if the evidence otherwise supports the defense. State v. Eichelbrenner , 1st Dist. Hamilton No. C-110431, 2013-Ohio-1194, 2013 WL 1282229, ¶ 24. In Eichelbrenner , the trial court denied the defendant's request for a self-defense instruction on the ground that he did not testify. The First District found that the trial court erred in that determination but that the error would be harmless unless the evidence otherwise supported an instruction on self-defense. The court reviewed the record and determined that it did not contain sufficient evidence to support a self-defense instruction, and therefore, although the trial court erred, the error was harmless pursuant to Crim.R. 52(A) because the instruction was not warranted. Id. at ¶ 30.

{¶ 16} This case is distinguishable from Eichelbrenner . Here, the trial court expressly told Hawthorne that in order to establish his defense, he had to testify. Hawthorne had a witness subpoenaed that he said would support his claim of self-defense. But the court told Hawthorne specifically that no one other than him could come into court and establish his state of mind at the time of the shooting.

{¶ 17} During trial, after the state rested its case, the trial court inquired whether defense counsel would be calling any witnesses:

Court: * * * [Y]ou claim self-defense. Are you going to be calling any witnesses?
Defense: If the witness shows up. We subpoenaed the witness.
* * *
Court: You claim self-defense for this jury. Is your Defendant going to testify?
Defense: No. She [the witness] would support the self-defense. She was the one witness who said there is somebody in the car. And she supports a claim that-that Mr. Hawthorne was attacked by James Cooperwood.
Court: [Prosecutor], would you like to respond? Well, * * * [defense counsel] made an opening statement to this Jury and argued self-defense. Is self-defense a valid defense when someone else comes in and testifies and not the Defendant?

Tr. 804-805.

{¶ 18} During a short break in trial, defense counsel prepared a material witness warrant for the court to sign. Prior to issuing the warrant, the court stated:
Court: Self-defense applies only when the Defendant takes the stand. It is not a Defense based on what someone else believed the Defendant believed he was in fear for his life. It is what the Defendant believed he was in fear for his life. He admits-it's an admission and a defense. I admit I committed the crime, but I believe I was in fear of my life. That is self-defense. So no witness can come in here and testify as to what Mr. Hawthorne believed he was in fear for his life or not. So I don't care-I mean, I'll give you as much time as you want to try to secure this person, but that person isn't the person who can testify and give you the self-defense argument.
So if you're going to argue self-defense to this Jury, and if you're going to argue self-defense, then the only way that comes in is if Mr. Hawthorne testifies. Now, he doesn't have to testify, but if he wants to testify, he can testify, and then you can argue self-defense. I'm going to put that on the record at this time.
Prosecutor: Do you want to question the Defendant if that's his decision?
Court: I should. Mr. Hawthorne, do you understand what I'm saying?
Hawthorne: Yes, I do.
Court: If you want to testify, and you believe that this is self-defense, you're the individual that has to testify-
Hawthorne: I understand.
Court: -as to that. I'll let you consult with your lawyers about that, and as soon as you come back with consulting, let me know, and we'll move forward here.

T. 825-826. (Emphasis added.)

{¶ 19} After the lunch recess, the trial court inquired whether the defense had any witnesses and defense counsel stated that they were unable to produce their witness. The court asked Hawthorne whether he was going to testify and he answered, "No." The court responded: "Okay. You don't wish to testify, and that's your choice. I'm not trying to force you one way or the other, but I just want to make sure it's your decision, okay?"

{¶ 20} Again, in Seliskar , 35 Ohio St.2d at 96, 298 N.E.2d 582, the Ohio Supreme Court foresaw a situation where a defendant may have to testify in order to prove self-defense. But the Seliskar court did not make testifying a requirement; on the contrary, the court stated that the "choice is that of the defendant" and that in proving, by a preponderance of the evidence, that he or she acted in self-defense, the defendant can offer his or her own testimony if necessary . In this case, Hawthorne was not given that choice. This was not a situation where the trial court told the defendant that there was insufficient evidence to support his claim of self-defense and, therefore, Hawthorne needed to testify in order to establish his defense. Here, the trial court told Hawthorne that it was his "choice" whether to testify but Hawthorne was required to testify in his own defense in order to establish a claim of self-defense. The trial court misstated the law when it told Hawthorne that

[s]elf-defense applies only when the Defendant takes the stand. * * * So no witness can come in here and testify as to what Mr. Hawthorne believed he was in fear for his life or not. So I don't care-I mean, I'll give you as much time as you want to try to secure this person, but that person isn't the person who can testify and give you the self-defense argument.

Thus, according to the trial court, the only way Hawthorne could claim self-defense was if he testified in his own defense.

{¶ 21} This court has previously noted that a defendant does not have to testify in his or her own defense in order to establish the defense of self-defense. In State v. Lyons , 8th Dist. Cuyahoga No. 43513 (Dec. 3, 1981), 1981 WL 4668, this court stated: "The accused is free to choose between exercising his [or her] right to silence and pursuing his [or her] affirmative defense. Moreover, in many cases an accused may exercise his [or her] right to silence and still prove self-defense through the testimony of other witness." Id. at *1.

{¶ 22} We are cognizant of the fact that Hawthorne's subpoenaed witness did not appear to testify for trial. But there is no requirement that the testimony with regard to a claim of self-defense come solely from defense witnesses. Again, the outcome would be different if the trial court, after listening to all of the evidence, and finding out that the defense had no witnesses to present, informed Hawthorne that he would have to testify in order to claim self-defense. But, here, the trial court erroneously told Hawthorne it was a requirement for him to testify prior to knowing with certainty that the defense had no other witnesses or evidence to present and without considering the testimony of the state's witnesses.

{¶ 23} Therefore, we find that the trial court erred to the prejudice of Hawthorne when it informed him that he had to testify in order to advance a claim of self-defense.

{¶ 24} Next, we consider Hawthorne's claim that the trial court erred when it did not instruct the jury on the theory of self-defense. The state correctly points out that defense counsel did not object when the trial court said it was not including an instruction on self-defense. Thus, our review is for plain error. Crim.R. 30(A) provides that "[o]n appeal, a party may not assign as error the giving or the failure to give any instructions unless the party objects before the jury retires to consider its verdict, stating specifically the matter objected to and the grounds of the objection." Noncompliance with Crim.R. 30(A) waives all but plain error. State v. Phillips , 10th Dist. Franklin No. 14AP-79, 2014-Ohio-5162, 2014 WL 6482778, ¶ 165. See also Crim.R. 52(B).

{¶ 25} "Notice of plain error * * * is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. "For a court to notice plain error, the error must be an obvious defect in a trial's proceedings, it must have affected substantial rights, and it must have affected the outcome of the trial." State v. Steele , 138 Ohio St.3d 1, 2013-Ohio-2470, 3 N.E.3d 135, ¶ 30, citing State v. Eafford , 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891, ¶ 11. Even if an error satisfies these three requirements, a reviewing court is not obliged to correct them. State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240, citing Crim.R. 52(B).

{¶ 26} Here, a confluence of errors occurred. The trial court told Hawthorne that self-defense applies only when the defendant takes the stand. Hawthorne exercised his constitutional right not to testify, and the trial court failed to consider the testimony of other witnesses-specifically the victim, Cooperwood, and his girlfriend, Austin-in determining whether a jury instruction on self-defense was warranted. The failure to consider Cooperwood's and Austin's testimony was based on the court's erroneous belief that only Hawthorne's testimony could establish the defense.

{¶ 27} Austin testified that Cooperwood asked where his bat was and told Austin he was going to "bust" Hawthorne's head open and "whoop his a* *." She further testified that she was trying to keep Cooperwood from going outside to confront Hawthorne but her boyfriend told her to "get the f* * * off him before he beat [her] a* *."

{¶ 28} Cooperwood testified that he called Hawthorne and told him, "I was going to put him over my knee and whoop him like the kid he was." When the state inquired why Cooperwood needed his bat, he replied, "It's called a weapon. It's called protection. I don't know what that man [was] about to pull up with in his hand. * * * I'm not a gun toter, never been a gun toter. I'm a fighter. I'm a brawler. That's what I do. He came with the gun. I came for fisticuffs. He came to shoot. I came to fight." Cooperwood admitted that he was "highly upset" and was "expecting a fight" with Hawthorne. Cooperwood further admitted that he told Hawthorne that he (Cooperwood) was going to "kick his a**" and "I came out here to beat you up, pretty much, but you bring a gun, like I said before, I came to fight, I'm a fighter."

{¶ 29} The trial court failed to take the witnesses' testimony into consideration in determining whether to instruct on the theory of self-defense. The state contends that the trial court did not commit plain error because Hawthorne never requested a jury instruction on self-defense and did not object to the fact that the trial court indicated it would not give the instruction.

{¶ 30} It is clear from the record, however, and admitted to by the state, that the defense's theory at trial was one of self-defense. The state actually requested a curative instruction be given to the jury to explain why the court was not instructing the jury on self-defense. During this oral request, the state noted that the defense had introduced its theory of self-defense during opening arguments.

{¶ 31} The state claims in its supplemental brief that the defense changed its strategy at some point when Hawthorne decided not to testify. But, as counsel told the court in response to the state's request, the defense did not introduce its theory of self-defense in opening arguments based on its belief that Hawthorne would testify, but rather raised it "assuming the other lady would come in" to testify. Once the trial court erroneously told Hawthorne he had to testify in order to raise the defense of self-defense, the defense's entire theory of the case was essentially hamstrung. While we acknowledge that part of the defense's problem was due to the subpoenaed witness failing to appear, this fact does not negate that the court erred in telling Hawthorne he had to testify in order to claim self-defense and in failing to consider other witness testimony as it related to the defendant's self-defense claim.

{¶ 32} Because the trial court failed to take witness testimony into consideration based on its erroneous assumption that a defendant must testify in order to claim the defense of self-defense and did not give a jury instruction based on that assumption, we find that the court's error prejudiced Hawthorne and prevented him from receiving a fair trial.

{¶ 33} The dissent contends that the trial court's incorrect statement of law had no impact on the scope of evidence introduced at trial. That may be, but it had an impact on what the court itself considered when it decided not to instruct on self-defense. The court refused to give the self-defense instruction not because it did not believe that the testimony presented failed to support the instruction. The court refused to give the instruction because the defendant did not testify. This point is highlighted in the court's denial of the defense's request to instruct on aggravated assault. During the discussion on this point, the court considered the testimony of the state's witnesses. The same cannot be said for its decision not to instruct on self-defense.

{¶ 34} The first assignment of error is sustained. Because we sustain the first assignment of error as to Hawthorne's argument on self-defense and reverse and remand the case based on this argument, his other contention under this assignment of error-that the court erred in denying his request to instruct the jury on aggravated assault-is moot. See App.R. 12(A)(1)(C).

{¶ 35} Likewise, based on the outcome of the first assignment of error, the second assignment of error in which Hawthorne claims he received ineffective assistance of counsel, and the third assignment of error, claiming prosecutorial misconduct, are also moot.

{¶ 36} In the fourth assignment of error, Hawthorne contends that the trial court erred in joining his two cases for trial. In Case No. CR-16-603041-A, Hawthorne was convicted of two counts of felonious assault, one count with one- and three-year firearm specifications. In Case No. CR-16-603867-A, Hawthorne was acquitted of having weapons while under disability. Thus, because he was acquitted of having weapons while under disability and we are reversing his felonious assault convictions, this assignment of error is likewise moot.

{¶ 37} Judgment reversed and case remanded for proceedings consistent with this opinion.

KATHLEEN ANN KEOUGH, P.J., CONCURS; EILEEN T. GALLAGHER, J., DISSENTS WITH SEPARATE OPINION

EILEEN T. GALLAGHER, J., DISSENTING:

{¶ 38} I respectfully dissent from the majority's determination that the trial court erred to the prejudice of Hawthorne when it informed him that he had to testify in order to advance a claim of self-defense. I agree that the trial court erroneously instructed Hawthorne that he would have to testify in order to claim self-defense. However, under the circumstances of this case, I believe we are required to review the testimony presented at trial in an effort to determine whether the trial court's misstatement of law was harmless.

{¶ 39} In this case, Hawthorne exercised his right to not testify at trial despite the trial court's misstatement of law. In addition, the record reflects that defense counsel rested without presenting any witnesses. Significantly, there is nothing in the record to suggest that the trial court's misstatement of law impacted or altered the witnesses or evidence defense counsel planned on presenting at trial. Accordingly, I find no basis to remand the matter where there is no indication that any new testimony or evidence would be introduced at a new trial. In my view, this court has the necessary information to determine whether the evidence supported a self-defense instruction. The trial court's incorrect statement of law had no impact on the scope of the evidence introduced at trial and reversing on these grounds merely delays appellate review for a later date.

{¶ 40} For the purposes of clarity, I note that if for example, Hawthorne would have testified on his own behalf based on the trial court's misstatement of law, I believe reversible error would have existed. However, that did not occur in this case.

{¶ 41} Based on the forgoing, this court is obligated to review the state's evidence in order to determine whether Hawthorne could satisfy his burden of proving self-defense. If the evidence does not support the instruction, the trial court's misstatement of law would be harmless and a new trial would not be required.

      Self-defense will justify the use of force where the defendant can establish, by a preponderance of the evidence, that he or she was not the instigator of the altercation, acted under a reasonable belief that force was necessary to repel the imminent use of force by another, and did not violate any duty to retreat or avoid the danger. State v. Barnes , 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (2002).