[Cite as State v. Bunn,
2011-Ohio-1344.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 10 MA 10
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
JERMAINE BUNN, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 08 CR 742.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains
Prosecuting Attorney
Attorney Ralph M. Rivera
Assistant Prosecuting Attorney
21 W. Boardman St., 6th Floor
Youngstown, OH 44503
For Defendant-Appellant: Attorney Megan M. Graff
Comstock, Springer & Wilson Co., LPA
100 Federal Plaza East, Suite 926
Youngstown, OH 44503
JUDGES:
Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Dated: March 18, 2011
DeGenaro, J.
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{¶1} Appellant, Jermaine Bunn appeals the December 30, 2009 decision of the
Mahoning County Court of Common Pleas that imposed a seven-year prison sentence,
subsequent to Bunn's guilty plea to felonious assault. On appeal, Bunn argues that the
trial court committed reversible error by refusing to grant Bunn's repeated motions to
withdraw his guilty plea, and by allowing him to proceed pro-se during one hearing without
ensuring that Bunn's waiver of counsel was knowing, voluntary, and intelligent.
{¶2} Bunn's due process rights were not prejudiced when the trial court granted
Bunn's request to present a pro-se argument at the hearing on his second of three
motions to withdraw his guilty plea, regardless of whether the trial court substantially
complied with Crim.R. 44(A). Further, Bunn did not present compelling reasons for
withdrawing his plea, and the State would have been prejudiced by a plea withdrawal for
a charge that had been pending for eighteen months. Thus, the trial court did not abuse
its discretion by overruling Bunn's motions to withdraw his guilty plea. Accordingly, the
judgment of the trial court is affirmed.
Facts and Procedural History
{¶3} On June 20, 2008, Bunn was arraigned at Mahoning County Court #4 on
charges of kidnapping, felonious assault, and having weapons under disability. The
offenses were alleged to have been committed against Leora Morgan on or about June
18, 2008. On June 23, 2008, while represented by counsel, Bunn consented to be bound
over to the Mahoning County Court of Common Pleas. On July 17, 2008, the grand jury
issued a three count indictment for Case No. 08 CR 742, charging Bunn with kidnapping,
felonious assault, and having weapons while under disability.
{¶4} Bunn's counsel filed a motion to withdraw as counsel of record, which the
trial court granted on August 1, 2008. On August 5, 2008, Bunn entered a plea of not
guilty, and his bond was continued. On August 19, 2008, the trial court appointed
Attorney James Melone as counsel, Bunn executed a speedy trial waiver, and the trial
court continued the case. Subsequent to initial discovery, pretrial hearings, and many
continuances, the trial court granted an indefinite continuance of the trial date. At a
February 20, 2009 pretrial hearing, Bunn rejected the State's plea offer, and a jury trial
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was scheduled for May 26, 2009.
{¶5} On May 13, 2009 the State filed a motion to revoke bond, stating that Bunn
had been arrested on April 29, 2009 on numerous charges. Bunn was charged in Case.
No. 09 CR 485 for fourth degree felony possession of crack cocaine, and in Case No. 09
CR 514 for third degree felony theft. The trial court granted the motion on May 21, 2009
and ordered that Bunn be taken into custody.
{¶6} On May 27, 2009, the trial court held a hearing regarding the three cases
pending against Bunn. With the legal representation of Attorney Tony Meranto, Bunn
submitted waivers of indictment for Case Nos. 09 CR 485 and 09 CR 514, and pleaded
guilty to the charges. With the legal representation of Attorney Melone in Case No. 08
CR 742, Bunn agreed to enter a change of plea to guilty for the charge of felonious
assault, and the State agreed to dismiss the charges of kidnapping and having weapons
under disability. The parties jointly recommended a sentence of four years for felonious
assault in 08 CR 742. The parties also jointly recommended sentences of four years for
theft in 09 CR 514, and eighteen months for drug possession in 09 CR 485, and
recommended that they all run concurrently. After Bunn and the State agreed to address
all three of the cases simultaneously, the trial court entered into a Crim.R. 11(C) colloquy
with Bunn on the guilty pleas for each of the three charges, and found his pleas to be
knowing, voluntary, and intelligent. The trial court sustained the State's motion to dismiss
the kidnapping and weapons disability charges in 08 CR 742, accepted Bunn's plea to the
felonious assault charge, and found him guilty. The trial court then accepted Bunn's
pleas to the charges in 09 CR 485 and 09 CR 514, and found him guilty. The trial court
continued Bunn's sentencing hearings to June 30, 2009, pending presentence
investigation. The trial court filed a judgment entry noting the same on May 29, 2009.
Attached to the judgment entry was a Sentence Recommendation for 08 CR 742, signed
by the prosecutor and Attorney Melone, recommending an "[a]greed upon sentence of
four years, State will not oppose judicial release after 3 years are served. Sentence to
run concurrently with 09 CR 485 & 09 CR 514."
{¶7} The sentencing hearing was reset to July 14, 2009, and again to August 6,
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2009. On August 10, 2009, the trial court filed a judgment entry, noting that the August 6,
2009 sentencing hearing had been cancelled upon Bunn's oral motion, and granting Bunn
ten days to file a written motion. Although Bunn's other two cases are not part of the
record in the present case, it appears that Bunn's counsel for Case Nos. 09 CR 485 and
09 CR 514 filed a motion to withdraw his guilty plea, and that the trial court scheduled a
hearing on that motion for September 8, 2009.
{¶8} At the hearing, counsel for Bunn's 09 cases, Attorney Meranto, stated that
Bunn's decision to request a withdrawal of his pleas was against the advice of counsel.
The State explained that certain federal charges associated with the 09 cases had been
dismissed in reliance on Bunn's guilty pleas at the state level, and thus the State opposed
Bunn's plea withdrawal. Attorney Meranto stated that he believed that a plea withdrawal
for the 09 cases was a mistake, as Bunn's counsel for the federal charges had informed
him that the plea withdrawal may cause the federal charges to be reinstituted. Attorney
Meranto further explained that his interaction with Attorney David Gerchak regarding a
witness for the 09 cases had created a potential conflict, and he requested to withdraw as
counsel for Bunn's 09 cases. The trial court granted counsel's request to withdraw, and
appointed Attorney Melone as counsel for all three of Bunn's cases.
{¶9} On the day of the hearing, Bunn had filed a motion to withdraw guilty plea
for Case No. 08 CR 742, through Attorney Melone. In his motion, Bunn alleged that his
guilty plea in the present case had been contingent on the "global resolution" of all of the
cases pending against him. Bunn argued that being permitted to withdraw his plea in 09
CR 485 but not 08 CR 742 would frustrate his intent in entering the plea agreement. At
the hearing, Attorney Melone stated that Bunn's decision to withdraw his plea for the 08
case was against the advice of counsel. The State opposed the plea withdrawal as being
groundless and filed at the last minute. The trial court took the matters under
consideration and allowed the State five days to file a responsive memorandum.
{¶10} In the State's Memorandum in Opposition to Bunn's motion to withdraw his
guilty plea in the present case, the State argued that the nine factors in State v. Fish
(1995), 104 Ohio App.3d 236,
661 N.E. 2d 788, weighed against plea withdrawal, mainly
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due to the prejudice against the State given the age of the case and the decreasing
possibility of witness availability. Upon consideration of the parties' motions and the
arguments at the hearing, the trial court denied Bunn's motion to withdraw his plea in
Case No. 08 CR 742 on September 18, 2009.
{¶11} On October 9, 2009, Attorney Melone filed a motion to withdraw as counsel
and a motion to appoint new counsel, explaining that Bunn had filed a motion (which is
not in the record for the present case) on October 1, 2009, requesting that Attorney
Melone be dismissed as counsel based on "derelict of duty." The trial court held a
hearing on the matter on October 29, 2009, during which Attorney Melone explained that
his relationship with Bunn had deteriorated. Additionally, the parties discussed Bunn's
motion to vacate his guilty pleas for the 09 cases based on unspecified new evidence.
The trial court took Attorney Melone's motion to withdraw as counsel under consideration.
{¶12} On December 4, 2009, Attorney Melone filed a renewed motion to withdraw
as counsel and to appoint counsel, explaining that Bunn's request for Attorney Melone's
dismissal based on "derelict of duty," as well as the fact that Bunn had filed a grievance
with the Mahoning County Bar Association on November 17, 2009, accusing him of
inadequate representation. On December 4, 2009, Attorney Melone also filed a second
motion to withdraw Bunn's guilty plea in the present case as well as renewing the motion
for the 09 cases. The brief in support mainly discussed Bunn's motivation for withdrawing
his plea in the 09 cases, as discussed earlier, involving related federal charges and newly
discovered evidence. Bunn argued that the timing of his guilty plea for the 08 charge
proved that his plea was conditioned on the "global resolution" of all three of his cases.
{¶13} The State's December 15, 2009 motion in opposition argued that the Fish
factors still weighed heavily against plea withdrawal. The State noted that the alleged
new evidence for the 09 cases consisted of written statements from two witnesses,
submitted to the state at Bunn's request, containing information already known to Bunn at
the time of his plea. The State further urged that plea withdrawal in the 08 case would
clearly prejudice the State because it is almost eighteen months old, with diminishing
availability of evidence.
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{¶14} At the December 15, 2009 hearing on all pending motions, Attorney Melone
again explained the deterioration in his relationship with Bunn, and stated: "I don't believe
that I can continue to represent him, and for that reason I filed a motion to withdraw as
counsel. I explained to him that I did file the motion to vacate his plea prior to withdrawing
as counsel. He has asked to be permitted to address the court with regard to that motion,
should the court grant my motion to withdraw as counsel. … But I would ask that I be
immediately permitted to withdraw as counsel, and if Mr. Bunn wishes to proceed pro-se,
then that the court give him that opportunity, if the court deems it necessary." The trial
court granted counsel's motion, and then asked, "Mr. Bunn, what do you have to say
about your motion to withdraw your guilty plea?" Bunn then discussed his claim of
innocence in the 09 cases, based on a confession of another individual. Regarding his
08 case, Bunn stated that his codefendant, Lamont Jones, entered a plea to the same
crimes that are being charged against Bunn, namely kidnapping, felonious assault, and
possession of the gun. The State responded that Jones did enter a plea regarding the
same incident, but that he was accused of being an accomplice with Bunn as the principal
offender. The trial court decided to vacate Bunn's pleas in the 09 cases, refused to
vacate his plea in the 08 case, and appointed Attorney Michael Gollings as new counsel.
{¶15} On December 21, 2009 the trial court held a sentencing hearing, at which
Bunn was represented by Gollings. On the day of the hearing, Bunn had filed a pro-se
renewed motion to withdraw guilty plea, his third such motion, arguing that the trial court
violated Bunn's due process rights by allowing him to argue his previous motion without
the assistance of counsel at the December 15, 2009 hearing. Bunn also argued in his
motion that the 08 case should be dismissed because Lamont Jones, Jr. had already
pleaded guilty to the same felonious assault charge, and because the victim had not been
able to identify Bunn in the police photograph array. At the hearing, the trial court first
heard counsel’s argument regarding the third motion to withdraw guilty plea, dismissed it,
and proceeded to sentencing. The State maintained its recommendation of a four-year
prison sentence from the original plea deal. When invited to address the court, Bunn
argued that he had only agreed to the plea deal because he believed he would receive a
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four-year sentence as punishment for all of his charges, not just the present case. Bunn
also repeated that the witness had been unable to identify him, and his codefendant had
already been convicted for being in possession of the firearm used to commit the
felonious assault. The trial court stated that it had considered the pre-sentence
investigation report, as well as R.C. 2929.11 and R.C. 2929.12, and imposed a sentence
of seven years.
Withdrawal of Guilty Plea
{¶16} In his first of two assignments of error, Bunn asserts:
{¶17} "The trial court acted unjustly and unfairly when failing to grant Mr. Bunn's
motions to withdraw his guilty plea."
{¶18} Bunn raises the same grounds raised before the trial court to argue that his
motion should have been granted. Pursuant to Crim.R. 32.1, a defendant may move to
withdraw his guilty plea before his sentence is imposed. Motions to withdraw a guilty plea
before sentencing "should be freely and liberally granted." State v. Xie (1992), 62 Ohio
St.3d 521, 527,
584 N.E.2d 715. At the same time, "[a] defendant does not have an
absolute right to withdraw a guilty plea prior to sentencing."
Id. at paragraph one of the
syllabus. A defendant is only entitled to withdraw his plea when "there is a reasonable
and legitimate basis for the withdrawal of the plea."
Id.
{¶19} This court has previously stated that "the factors that are weighed in
considering a pre-sentence motion to withdraw a plea include the following: (1) whether
the state will be prejudiced by withdrawal, (2) the representation afforded to the defendant
by counsel, (3) the extent of the Crim.R. 11 plea hearing, (4) the extent of the hearing on
the motion to withdraw, (5) whether the trial court gave full and fair consideration to the
motion, (6) whether the timing of the motion was reasonable, (7) the reasons for the
motion, (8) whether the defendant understood the nature of the charges and potential
sentences, (9) whether the accused was perhaps not guilty or had a complete defense to
the charge." State v. Cuthbertson, 139 Ohio App.3d 895, 898-899,
2000-Ohio-2638,
746
N.E.2d 197. See, also, Fish at supra No one of these factors is conclusive.
Cuthbertson at 899.
-8-
{¶20} "A motion made pursuant to Crim.R. 32.1 is addressed to the sound
discretion of the trial court, and the good faith, credibility and weight of the movant's
assertions in support of the motion are matters to be resolved by that court." State v.
Reed, 7th Dist. No. 04 MA 236, 2005-Ohio-2925, at ¶7, quoting State v. Smith (1977),
49
Ohio St.2d 261,
3 O.O.3d 402,
361 N.E.2d 1324, at paragraph two of the syllabus. A trial
court's decision "to grant or deny a presentence motion to withdraw a guilty plea is within
the sound discretion of the trial court," and thus will not be disturbed by a reviewing court
absent an abuse of discretion. Xie at paragraph two of the syllabus. The trial court
abuses that discretion when its ruling is "unreasonable, arbitrary or unconscionable,"
which is "more than an error of judgment." Id. at 527.
{¶21} Upon consideration of the nine factors of Cuthbertson, the trial court's
decision to deny Bunn's motion to withdraw his guilty plea was not an abuse of discretion.
First, in reliance on Bunn's guilty plea for the felonious assault charge, the State moved
to dismiss the charges of kidnapping and having a weapon while under disability, which
the trial court granted on May 29, 2009. More than two months elapsed between Bunn's
plea and his initial oral motion indicating that he wanted to withdraw his plea, and over
three months elapsed by the time Bunn filed his first plea withdrawal motion for the
present case. The State noted that, subsequent to Bunn's plea, the victim had moved,
the State had not been in contact with the witnesses, and the risk of witness unavailability
was high. The State alleged in its motions in opposition that the availability of witnesses,
including the victim, was becoming more tenuous the further the case moved past its
inception in 2008. Thus, the State would be prejudiced by the delay between a
defendant's plea and his request for withdrawal. See State v. Kennedy, 7th Dist. No. 07
MA 9, 2008-Ohio-1538, at ¶23-24.
{¶22} As for the second factor, Bunn argues that he did not receive reasonable
representation because he was required to argue pro-se at the December 15, 2009
hearing on his second plea-withdrawal motion. However, as discussed in detail below,
Bunn requested that he be allowed to personally address the court regarding his second
plea-withdrawal motion, and therefore his due process rights were not violated. Further,
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the various attorneys assigned to Bunn's case provided adequate representation. Third,
Bunn does not argue that his original Crim.R. 11 plea hearing was inadequate in any way.
The record reflects that the trial complied with the requirements of Crim.R. 11 in its
colloquy with Bunn, and that Bunn's plea of guilty was voluntary, knowing and intelligent.
{¶23} As for the fourth and fifth factors, Bunn's sole argument is that the trial
court's consideration of his three plea withdrawal motions, as well as the hearings thereon
were prejudicially insufficient because Bunn was forced to argue pro-se at the hearing on
his second plea withdrawal motion. Again, this argument is meritless. The record reveals
that the trial court addressed all three of Bunn's plea withdrawal motions at hearings. The
trial court inquired rather extensively of counsel and Bunn regarding his first two requests
to withdraw his guilty plea. The trial court also heard counsel’s argument regarding
Bunn's pro-se filing of a third motion, before conducting the sentencing hearing. The trial
court provided Bunn with ample opportunity to argue the merits of his request to withdraw
his plea, and provided full consideration to the request.
{¶24} Sixth, Bunn does not argue whether the timing of his plea withdrawal motion
was reasonable. Bunn waited until the day of sentencing to voice his desire to withdraw
his plea. At the inception of his August 6, 2009 sentencing hearing, Bunn orally moved to
cancel the hearing, and the trial court granted 10 days to file his first plea withdrawal
motion. Similarly, Bunn filed his third motion on December 21, 2009, the date set for his
sentencing on the 08 case. The timing of Bunn's motion was unreasonable, weighing
against plea withdrawal. See State v. Williams, 7th Dist. No. 09-MA-74, 2010-Ohio-1292,
at ¶33.
{¶25} As for the seventh factor, Bunn's reasons for his plea-withdrawal motion
were not very compelling. Although Bunn argues on appeal that he requested withdrawal
based on claims of innocence, Bunn did not actually proclaim his innocence regarding the
felonious assault charge. Bunn repeatedly proclaimed his innocence regarding the 09
cases, which are not at issue here. The record does not reflect the same statements
being made about Bunn's 08 case. Bunn did argue that some of the evidence against
him was weak. Specifically, he stated that the victim failed to identify him in the police
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photo array, and that Lamont Jones, Jr. had allegedly entered a plea for kidnapping,
felonious assault, and possession of the gun. The victim's identification would have been
known to Bunn at the time of his plea, thus it does not justify withdrawal. Although the
details of Jones's plea are not contained in this record, the State noted during the
December 15, 2009 hearing that Jones did plead guilty to charges arising from the same
incident, but that Jones had been charged as an accomplice with Bunn as the principal.
The existence of Jones's plea is either irrelevant or deleterious to Bunn's argument. More
important, claiming evidence against a defendant is weak is not the same as claiming the
defendant is innocent.
{¶26} Additionally, Bunn's main reason for requesting a withdrawal of his guilty
plea was that the plea had been based on the understanding that the 08 plea agreement
was part of a package plea deal with the State for all three cases, and that allowing him to
withdraw his pleas in the 09 cases, but not the 08 case, frustrated his intent in entering
the plea. Bunn pleaded guilty to the charge of felonious assault in exchange for the
State's agreement to dismiss the remaining two charges and recommend a four-year
sentence. By the time Bunn was sentenced, the additional two charges were dismissed,
and the State recommended a four-year sentence, so Bunn received the benefit of his
original bargain.
{¶27} However, at Bunn's original plea hearing, the prosecutor and Bunn's
attorney for the 08 case both signed and submitted a joint recommendation of sentence
of four years, noting that the State would recommend that the sentence be served
concurrently with the sentences imposed in the 09 cases. The failure of a promise to
recommend concurrent sentencing is the only potentially valid reason that Bunn has
presented supporting withdrawal. However, that portion of the bargain did not fail
because the State breached the plea agreement; it was a consequence of Bunn's
actions. A defendant's failure to follow the terms of a plea agreement relieves the State
of its obligations under the terms. See State v. Vincent, 4th Dist. No. 02CA2672, 2003-
Ohio-2591, at ¶13.
{¶28} Eighth, Bunn does not argue that he did not understand the nature of the
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charges and potential sentences. The record reflects that Bunn was given a full
explanation of the felonious assault charge, its sentencing range, and he indicated that he
understood that the trial court had the discretion to disregard the recommended sentence.
Ninth, Bunn does not argue that there was a complete defense to his felonious assault
charge. Bunn did argue that he had legitimate reasons to withdraw his plea based on his
innocence, but again, the record does not reflect that Bunn asserted his innocence as the
reason for the withdrawal of his plea for the 08 case. Instead, Bunn's claim of innocence
was raised only in the context of the 09 cases against him.
{¶29} The trial court heard Bunn's arguments on his three plea-withdrawal motions
during multiple hearings, and was in the best position to determine the weight of the
assertions in support of his motions. Given all of the foregoing, the Cuthbertson factors
weigh against Bunn's motions. Therefore, the trial court did not abuse its discretion when
it denied Bunn's motions to withdraw his guilty plea. Accordingly, Bunn's first assignment
of error is meritless.
Waiver of Right to Counsel
{¶30} In his second assignment of error, Bunn asserts:
{¶31} "The trial court erred by requiring Mr. Bunn to proceed pro-se without
securing a knowing, voluntary, and intelligent waiver of the right to counsel."
{¶32} Bunn argues that his constitutional right to the effective assistance of
counsel was violated when he was forced to present a pro-se argument at the hearing for
his second of three motions to withdraw his guilty plea. The State argues that no
constitutional deprivation occurred because the portion of the hearing during which Bunn
argued pro-se was not a critical stage of his proceedings, and Bunn's rights were not
prejudiced. There are three parts to this issue. First, did the trial court substantially
comply with Crim.R. 44 before allowing Bunn to proceed pro-se? Second, if it did not,
was this a crucial proceeding where the constitutional right to counsel attached? Third, if
it was, did Bunn suffer prejudice as a result?
{¶33} The resolution of this assignment of error turns on the issue of prejudice.
Because we conclude Bunn was not prejudiced when he proceeded pro se on his second
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motion to withdraw his guilty plea, which had been filed by counsel, as he was
represented by counsel for his third motion, we need not address the remaining two
issues.
{¶34} When a criminal defendant goes through a stage in his proceedings without
the assistance of counsel, such a constitutional error may not be reversible if it was
harmless beyond a reasonable doubt. See State v. Payne, 114 Ohio St.3d 502, 2007-
Ohio-4642,
873 N.E.2d 306, at ¶18, citing Chapman v. California (1967),
386 U.S. 18, 24,
87 S.Ct. 824,
17 L.Ed.2d 705. A constitutional error may be harmless if it did not affect
the defendant's substantial rights. Crim.R. 52(A).
{¶35} As explained by the Ohio Supreme Court in the context of arraignment,
when a defendant goes through a portion of his proceedings without the representation of
counsel, and "the subsequent appointment of counsel to act on his behalf places the
accused, for practical legal purposes, in the same position he was in" before that portion
of the proceedings, then the defendant's due process rights have not been prejudiced.
Dean v. Maxwell (1963), 174 Ohio St. 193, 196-197,
22 O.O.2d 144,
187 N.E.2d 884.
{¶36} Bunn was left in the same position after the December 15, 2009 hearing
that he was in prior to that hearing. Before the hearing, he had been represented by
counsel and his guilty plea was still of record as his first motion to withdraw his guilty plea,
filed and argued by counsel, had been denied. During the hearing, counsel’s motion to
withdraw was granted; and then, at his request, Bunn argued his second motion pro se.
After the trial court considered and then denied Bunn’s second motion, counsel was
appointed. Thus, after the hearing, Bunn was represented by counsel and his guilty plea
was still of record because his second motion to withdraw was denied.
{¶37} Further, the December 15, 2009 hearing did not result in any decision that
was detrimental to Bunn's case. His second motion which had been filed by counsel and
supported by a memorandum of law, was argued pro se by Bunn at his request, and
considered on its merits not merely as a successive motion. Nor was Bunn penalized for
his pro-se appearance; Bunn's third plea-withdrawal motion, although filed pro se, was
addressed by the trial court on December 21, 2009 while Bunn was represented by
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counsel on its merits, again, not merely as a successive motion.
{¶38} During the minutes between the dismissal of prior counsel and appointment
of new counsel, the trial court allowed Bunn to argue his second motion pro se, as Bunn
requested. Thus, the trial court provided Bunn with the fullest opportunity to present his
argument in support of vacating his guilty plea. This case involved repetitive motions and
Bunn was represented by counsel on the first, and the third motions. Moreover, the
second motion, although argued pro se, had been drafted and filed by counsel.
Accordingly, Bunn's second assignment of error is meritless.
{¶39} In conclusion, the trial court did not abuse its discretion by denying Bunn's
plea-withdrawal motions, as Bunn's justification for withdrawal was not strong, and the
potential prejudice to the State was considerable. Nor was Bunn prejudiced when the trial
court permitted Bunn to present a pro-se argument in support of his second plea
withdrawal motion, as he had been represented by counsel for his first motion, the
second had been drafted by counsel, and more importantly, had been represented by
counsel at the hearing on his third motion. Accordingly, Bunn's assignments of error are
meritless and the judgment of the trial court is affirmed.
Waite, P.J., concurs.
Donofrio, J., concurs.
