[Cite as Solon v. Depew,
2023-Ohio-304.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF SOLON, :
Plaintiff-Appellee, :
No. 111463
v. :
MICHAEL A. DEPEW, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: February 2, 2023
Criminal Appeal from the Bedford Municipal Court
Case No. 21-CRB-01414 and 21-CRB-01416
Appearances:
Lon D. Stolarsky, City of Solon Prosecutor, for appellee.
Mary Elaine Hall, for appellant.
KATHLEEN ANN KEOUGH, J.:
Defendant-appellant, Michael Depew, appeals from the municipal
court’s judgments finding him guilty of disorderly conduct and aggravated
menacing. Finding no merit to the appeal, we affirm.
I. Background
Upon the complaint of Depew’s next-door neighbors, the city of Solon
charged Depew with one count of disorderly conduct in violation of
R.C. 2917.11(A)(2) after Depew approached his neighbors’ minor child while yelling
profanities and abusive language at him, and two counts of aggravated menacing in
violation of R.C. 2903.21(A) because after Depew returned home from his police
booking on the disorderly conduct charge, he yelled threats to his neighbors,
including “I’ll f---ing kill you,” “You’re f---ing dead.”
The charges were filed on September 23, 2021, in two separate cases:
Bedford M.C. No. 21-CRB-01414 (“Case No. 01414”) for the disorderly conduct
charge and Bedford M.C. No. 21-CRB-01416 (“Case No. 01416”) for the aggravated
menacing charges. A video zoom arraignment was scheduled for the same day.
Upon the filing of a motion for a criminal protection order (“CPO”), the assigned
judge conducted a hearing on September 23, and conditioned bail upon Depew’s
compliance with the conditions of the CPO, including that Depew not return to his
home because the alleged victims lived next door to him.
During the CPO hearing, Depew informed the judge that he had hired
attorney Harvey Bruner to represent him. Later that day, Bruner filed a notice of
appearance in both cases. Having not attended the CPO hearing, Bruner filed a
request for a status hearing, which the court granted and set for September 27, 2021.
At the hearing on September 27, the judge ruled that if the monitoring device to be
placed on Depew showed there had been no alcohol consumption over a two-week
period, Depew would be allowed to return home. Accordingly, the judge set the issue
for a further hearing on October 12, 2021.
At the October 12 hearing, the judge noted that the initial monitoring
report indicated no alcohol use. The judge then stated that upon his receipt of an
updated report that was to be submitted to him that afternoon, he would modify the
CPO to allow Depew to return home if the updated report indicated no alcohol use.
Although Depew was to enter a plea to the charges at the September 23
hearing, the issue was apparently overlooked due to the issues related to the CPO.
When the prosecutor informed the court at the October 12 hearing that Depew had
not yet entered a plea, the trial judge allowed him to enter a not guilty plea. The
judge then scheduled the cases for a pretrial conference on November 8, 2021, which
was later rescheduled to December 13, 2021.
On November 9, 2021, the city filed a motion to revoke Depew’s bond
because he had violated the terms of the CPO by shouting obscenities at his
neighbors when he returned home. The court scheduled a hearing on the city’s
motion for December 8, 2021.
On November 19, 2021, the trial court received notice that Bruner, who
had been under investigation for multiple instances of professional misconduct
(none of which involved Depew), had been suspended by the Ohio Supreme Court
from the practice of law for two years. On December 7, 2021, attorney Bruce Rutsky
entered a notice of appearance for Depew.
Rutsky appeared at the December 8, 2021 bond revocation hearing at
which, in the assigned judge’s absence, the acting judge presided. Because Depew
was hospitalized and unavailable for the hearing, the acting judge ordered that the
revocation hearing be rescheduled within 24 hours of Rutsky informing the court
that Depew was available and the December 13, 2021 pretrial be rescheduled to
January 5, 2022.
On December 15, 2021, the assigned judge conducted the revocation
hearing at which the parties agreed that Depew would remain on bond but not be
allowed in his home except under limited circumstances approved by the court. The
judge also rescheduled the January 5, 2022 pretrial conference to January 10, 2022;
it was later rescheduled to February 17, 2022. A bench trial in both cases
commenced on March 30, 2022, before the acting judge.
Immediately prior to trial, Depew informed the court that he wished
to plead no contest to the disorderly conduct charge in Case No. 01414 and stipulate
to a finding of guilt. The judge conducted the plea hearing and after questioning
Depew in accordance with Crim.R. 11, accepted the plea and found him guilty of
disorderly conduct. The judge then sentenced Depew to 30 days in jail, suspended,
and fined him $250. The judge reserved ruling on any probation conditions until
after trial on the aggravated menacing counts.
The court then proceeded with trial on the aggravated menacing
counts in Case No. 01416. During Depew’s opening statement, the judge learned for
the first time that one of the alleged victims was A.B. The judge then advised the
parties that he did not know A.B. but
I did know his uncle many years ago and I talked to him about two years
ago when his father — excuse me — when his son, [J.B.], died in a
spring break accident. Or was it an automobile accident? One of the
two. I can’t remember. I just want to let everyone know that’s the
connection I could potentially have here. And I don’t see a need to
recuse myself because of that.
(Tr. 7-8.)
The transcript reflects that the response of Depew’s counsel to the
judge’s statement was inaudible but the judge then added:
None whatsoever. And for full disclosure, I believe, now that I’m
thinking about it, if I’m right, I believe Mr. Depew’s wife knows my
cousin, second cousin, [S.M.], I believe. Just for full disclosure, which
does not affect me one way — which will not affect my decision one way
or the other.
(Tr. 8.) Depew’s counsel then stated, “Thank you for letting us know all that, your
Honor.” Id.
Upon the completion of trial, the judge found Depew guilty of both
counts of aggravated menacing. The judge sentenced him to 180 days in jail on each
count, to be served consecutively, but suspended the jail sentences subject to 18
months of supervised probation. The court did not impose any probation conditions
on the 30-day suspended jail sentence for disorderly conduct in Case No. 01414.
This appeal followed.
II. Law and Analysis
A. Ineffective Assistance of Counsel, Part One
In his first assignment of error, Depew contends that attorney
Bruner’s failure to tell him that he was under investigation by the Ohio Supreme
Court denied him his right to effective assistance of counsel as guaranteed by the
Sixth Amendment because “Bruner’s self-interest created a conflict of interest
during his representation of Depew” that “could not but affect his independent legal
judgment and professional advice to [his client].” (Appellant’s reply brief, p. 1).
It is well-settled that the Sixth Amendment guarantee of effective
assistance of counsel is comprised of two distinct rights: the right to reasonably
competent counsel and the right to counsel’s undivided loyalty. State v. Foster, 10th
Dist. Franklin No. 90AP-05, 1990 Ohio App. LEXIS 4911, 9 (Nov. 6, 1990). “Thus,
counsel has a duty to perform competently in representing his client and also to
avoid conflicts of interest.” Id.; see also State v. Caulley, 10th Dist. Franklin No.
12AP-100,
2012-Ohio-2649, ¶ 21 (“The Sixth Amendment guarantees a criminal
defendant the effective assistance of counsel and, in doing so, secures him the
assistance of counsel free from conflicts of interest.”).
The Supreme Court of the United States has described a conflict of
interest as a “struggle to serve two masters.” Cuyler v. Sullivan, 446 U.S. 335, 349,
100 S.Ct. 1708,
64 L.Ed.2d 333 (1980); State ex rel. Ogle v. Hocking Cty. Common
Pleas Court,
167 Ohio St.3d 181,
2021-Ohio-4453,
190 N.E.3d 594, ¶ 23. The
possibility of a conflict of interest exists when counsel has reason to further or serve
interests that are different from those of his client. Ogle at
id. An actual conflict of
interest exists when counsel is actively representing, furthering, or serving interests
that are different from those of his client.
Id.
To satisfy a claim of ineffective assistance of counsel based on a
conflict of interest, a criminal defendant must demonstrate that an actual conflict of
interest adversely affected trial counsel’s performance. Caulley at ¶ 22, citing State
v. Alexander, 10th Dist. Franklin Nos. 05AP-192 and 05AP-245, 2006-Ohio-1298,
¶ 20, citing State v. Keith,
79 Ohio St.3d 514, 535,
684 N.E.2d 47 (1997), citing
Cuyler at 348.
“Although most conflict of interest cases involve an attorney’s
representation of multiple clients, conflicts of interest may arise in other
circumstances, such as when counsel’s personal interests conflict with those of the
client.” Caulley, 10th Dist. Franklin No. 12AP-100, 2012-Ohio-2649, at id.; see, e.g.,
Caulley at ¶ 23 (a conflict of interest arose when defendant’s counsel had an affair
with his client’s then-wife during his client’s murder trial); State v. Bryant, 6th Dist.
Lucas No. L-84-249,
1985 Ohio App. LEXIS 8861 (Oct. 18, 1985) (counsel’s potential
criminal liability for conduct involving his own client was a conflict of interest); State
v. Foster, 10th Dist. Franklin No. 90-AP-05,
1990 Ohio App. LEXIS 4911, 10 (Nov.
6, 1990) (“”[A] conflict of interest is not necessarily limited to those factual
situations where one attorney simultaneously represents more than one defendant.
Rather, the critical inquiry is whether trial counsel actively represented conflicting
interests.”).
The usual test for ineffective assistance of counsel is whether the
defendant has demonstrated both that counsel’s performance fell below an objective
standard of reasonable performance and that counsel’s deficient performance
prejudiced the defendant resulting in an unreliable or fundamentally unfair
outcome of the proceedings. State v. Madrigal, 87 Ohio St.3d 378, 388-389,
721
N.E.2d 52 (2000), citing Strickland v. Washington,
466 U.S. 668, 687,
104 S.Ct.
2052,
80 L.Ed.2d 674 (1984). However, where a defendant shows that an actual
conflict of interest by counsel affected the adequacy of the defendant’s
representation, he need not demonstrate prejudice to show that he was denied his
due process right to effective assistance of counsel. Cuyler,
446 U.S. 335,
100 S.Ct.
1708,
64 L.Ed.2d 333, at 349-350; State v. Cranford, 2d Dist. Montgomery No.
23055,
2011-Ohio-384, ¶ 61. “Rather, prejudice is presumed if the defendant
demonstrates that counsel actively represented conflicting interests and that an
actual conflict of interest adversely affected his lawyer’s performance.” Cranford at
id.
Where a trial court knows or reasonably should know of an attorney’s
possible conflict of interest in the representation of the defendant, the trial court has
an affirmative duty to inquire whether a conflict of interest actually exists. State v.
Gillard, 64 Ohio St.3d 304, 311,
595 N.E.2d 878 (1992). Where a trial court breaches
its affirmative duty to inquire, prejudice is presumed.
Id.
Depew contends that the pending disciplinary action against Bruner
and his alleged failure to disclose it to him created a conflict of interest. He also
contends that the municipal court judges who presided over this case knew or
reasonably should have known of the pending proceedings against Bruner and,
accordingly, had an affirmative duty to inquire whether there was a conflict of
interest. He argues that his due process rights were violated because the judges
made no such inquiry and asks this court to therefore overturn his convictions.
Depew’s arguments are without merit.1
First, Depew has not demonstrated that Bruner was advocating for
anyone’s interest other than Depew’s during the proceedings. Although Depew
contends that the pending disciplinary proceedings “could not but affect” Bruner’s
legal judgment and professional advice, he points to nothing in the record that
supports this assertion or indicates that Bruner was “so affected by his personal
adversity that he was thereafter beset with conflicting interests prejudicial to the
conduct of [Depew’s] trial or that he was placed in an adversarial position relative to
[Depew].” United States v. Mouzin, 785 F.2d 682, 699 (9th Cir.). In short, Depew
simply asks this court to treat Bruner’s alleged failure to disclose the pending
disciplinary action as creating an actual conflict of interest adversely affecting his
ability to represent Depew without offering any explanation or evidence as to why
we should do so. Likewise, Depew fails to demonstrate how the two trial court
1 As discussed below, Depew’s arguments are without merit. But even if we were
to find that Depew’s due process rights had been violated because the trial court judges
breached their affirmative duty to inquire whether there was a conflict of interest, the
remedy would be to remand the matter to the trial court to conduct a hearing to determine
whether an actual conflict of interest existed, not to overturn Depew’s convictions. See
Gillard, 64 Ohio St.3d at 312,
595 N.E.2d 878.
judges knew or should have known of the pending disciplinary action against Bruner
and Bruner’s alleged failure to disclose it.
Because Depew has failed to demonstrate an actual or even possible
conflict of interest with respect to Bruner’s representation of him during the pending
disciplinary proceedings, he must demonstrate both prongs of the Strickland test to
prevail on his ineffective assistance of counsel claim. He has demonstrated neither.
Bruner was not under suspension at any point during the disciplinary
proceedings against him. Therefore, he was licensed to practice law and authorized
by virtue of his law license to represent Depew. He lost that right on November 17,
2021, and within two days notified the court of his suspension and resulting inability
to represent Depew. Although there was a bond revocation hearing in three days,
Depew retained a new attorney of his own choosing, Rutsky, who appeared at the
hearing. Rutsky was able to obtain a continuance of the hearing on Depew’s behalf
because Depew was in the hospital and unable to appear.
By the time of the rescheduled bond revocation hearing date, Rutsky
had successfully negotiated a deal that allowed Depew to remain out on bond. Then,
with a March 30, 2022 trial date, Rutsky had three and one-half months, which was
more than enough time, to prepare for trial. Thus, Depew has failed to demonstrate
that the pending disciplinary action against Bruner and resulting suspension
prejudiced his defense in any way.
Although Depew cites Bruner’s failure to appear at the CPO hearing
as evidence of deficient performance, under R.C. 2903.213(D), the court may issue
a CPO ex parte if it schedules a hearing in which the CPO can be modified. Thus,
there is no requirement for counsel to be present at the initial hearing. The docket
in Case No. 01416 reflects that a video arraignment was scheduled for September
23, 2021, and makes no mention of a CPO hearing. Nevertheless, at the video
arraignment, the assigned judge sua sponte heard the CPO request, which R.C.
2903.213 entitles him to do.
Bruner, who was under the impression that the September 23 hearing
was merely a video arraignment, as the docket states, did not appear. Nonetheless,
the docket reflects that he filed his notice of appearance on September 23, after the
court had entered notice of the CPO on the docket, and that same day, requested a
status hearing so he could seek modification of the CPO. The next day, September
24, 2021, the court granted Bruner’s request for a status hearing, which the court
scheduled for September 27, 2021. At the September 27 hearing, Bruner
successfully obtained a modification of the CPO order that allowed Depew to return
home provided that he remained alcohol free for the next two weeks. Accordingly,
we find nothing demonstrating that Bruner’s absence from the initial CPO hearing
was deficient or that his absence prejudiced Depew in any way.
Depew next contends that Bruner’s performance was deficient
because he “participated in decisions to enter a not guilty plea and ask for a trial.”
(Appellant’s brief, p. 12). Depew does not explain how Bruner’s participation in the
entry of a not guilty plea was ineffective, and we find nothing indicating that
Bruner’s recommendation that Depew plead not guilty at his initial arraignment
constituted deficient performance or was in any way prejudicial to Depew. The
alternative would have been to plead guilty or no contest, pleas that undoubtedly
would have resulted in conviction, the very outcome about which Depew now
complains.
Depew next contends that he “justifiably relied upon [Bruner’s] advice
which led to additional errors that tainted the trial process going forward.”
(Appellant’s brief, p. 13). But he does not explain what advice he relied upon (other
than pleading not guilty), nor how such advice allegedly tainted the trial process.
In the absence of any evidence of Bruner’s deficient performance and
prejudice to Depew, Depew has failed to meet his burden under the Strickland test
of establishing a constitutional violation due to ineffective assistance of counsel. The
first assignment of error is therefore overruled.
B. Ineffective Assistance of Counsel, Part Two
R.C. 2701.031 governs disqualification of municipal court judges and
provides that a party may file an affidavit of disqualification with the clerk of the
supreme court “[i]f a judge of a municipal or county court allegedly is interested in
a proceeding pending before the judge, allegedly is related to or has a bias or
prejudice for or against a party to a proceeding pending before the judge or to a
party’s counsel, or allegedly otherwise is disqualified to preside in a proceeding
pending before the judge.”
In his second assignment of error, Depew contends that attorney
Rutsky was constitutionally ineffective for not filing an affidavit of disqualification
after the trial judge informed the parties at the beginning of trial in Case No. 01416
that he knew one of the alleged victim’s uncles and that Depew’s wife knew the
judge’s second cousin. Depew’s argument is without merit.
Judicial scrutiny of a lawyer’s performance must be highly deferential.
State v. Weems, 8th Dist. Cuyahoga No. 98397, 2013-Ohio-1343, ¶ 16, citing State
v. Sallie,
81 Ohio St.3d 673, 674,
693 N.E.2d 267 (1998). A court must indulge a
strong presumption that counsel’s conduct fell within the wide range of reasonable
professional assistance, and the defendant must overcome the presumption that
under the circumstances, counsel’s action might be considered sound trial strategy.
Strickland, 466 U.S at 689,
104 S.Ct. 2052,
80 L.Ed.2d 674. “Hindsight is not
permitted to distort the assessment of what was reasonable in light of counsel’s
perspective at the time, and a debatable decision concerning trial strategy cannot
form the basis of a finding of ineffective assistance of counsel.” State v. Hoskins, 2d
Dist. Greene No. 2013 CA 78,
2014-Ohio-3639, ¶ 16, citing State v. Cook,
65 Ohio
St.3d 516, 524-525,
605 N.E.2d 70 (1992).
On this record, we find nothing suggesting that Depew’s counsel acted
deficiently by not filing an affidavit of disqualification under R.C. 2701.031. Defense
counsel heard the trial judge’s description of his acquaintance with the uncle of one
of the alleged victims and that of Depew’s wife with the judge’s second cousin.
Counsel also heard the trial judge explicitly state that those contacts would not affect
his decision “one way or the other.” (Tr. 8.) Under such circumstances, defense
counsel may have reasonably determined that obtaining disqualification of the trial
judge under R.C. 2701.031 was highly unlikely. If counsel could reasonably conclude
that obtaining disqualification was unlikely, his performance cannot be deemed
deficient. State v. Aldrich, 11th Dist. Ashtabula No. 2017-A-0033, 2017-Ohio-8944,
¶ 18, citing State v. Hall, 2d Dist. Montgomery No. 25858,
2014-Ohio-416, ¶ 8; see
also State v. Grant, 8th Dist. Cuyahoga No. 94101,
2010-Ohio-5241, ¶ 112 (trial
counsel’s decision to not file an affidavit of disqualification deemed a trial tactic that
the court would not second-guess). Accordingly, under these circumstances,
Rutsky’s failure to file an affidavit of disqualification falls within the wide range of
reasonable professional assistance.
Moreover, Depew does not argue — and nothing in the record suggests
— that the outcome of the trial would have been different if the trial judge had been
disqualified and another judge had presided over the trial on the aggravated
menacing charges. The evidence was overwhelming that Depew knowingly caused
his neighbors to believe that he would cause them serious physical harm, the
elements of an aggravated menacing offense in violation of R.C. 2903.21(A).
Depew having failed to demonstrate that attorney Rutsky provided
ineffective assistance of counsel, the second assignment of error is overruled.
C. No Contest Plea to Disorderly Conduct Charge
As set forth above, Depew pleaded no contest to the disorderly
conduct charge in Case No. 01414 and stipulated to a finding of guilt. Trial
proceeded on the two aggravated menacing charges in Case No. 01416 and Depew
was found guilty of both. As set forth on the respective dockets, the trial court
entered separate judgment entries of conviction and sentence for each case.
In his third assignment of error, Depew contends that the trial judge
violated Crim.R. 11(B)(2), which states, “The plea of no contest is not an admission
of the defendant’s guilt but an admission of the truth of the facts alleged in the
indictment, information, or complaint, and the plea or admission shall not be used
against the defendant in any subsequent civil or criminal proceeding.”
We find no violation. In its judgment entry in Case No. 01414, the trial
court stated that Depew had pleaded no contest to the disorderly conduct charge
and that upon the plea, the trial court had found him guilty. That is exactly what
happened. Any argument that a no contest plea precludes a finding of guilt is wholly
without merit. See R.C. 2937.07.
We also find no indication in the record that the trial court considered
the guilty verdict in Case No. 01414 in rendering its verdict after a bench trial on the
aggravated menacing charges in Case No. 01416. Accordingly, the trial court did not
violate Crim.R. 11(B)(2). The third assignment of error is overruled.
Judgment affirmed.
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
Bedford Municipal Court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending 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.
KATHLEEN ANN KEOUGH, JUDGE
ANITA LASTER MAYS, A.J., and
SEAN C. GALLAGHER, J., CONCUR
