State v. Harris

224 N.E.3d 660

2023-Ohio-3271

STATE of Ohio, Appellee

v.Ronald HARRIS II, Appellant

C.A. No. 2022-CA-73

Court of Appeals of Ohio, Second District, Clark County.

Rendered on September 15, 2023

(Criminal Appeal from Common Pleas Court), Trial Court Case No. 22-CR-0030.

KYLE J. LENNEN, Attorney for Appellant.

ERICA D. LUNDERMAN, Attorney for Appellee.

OPINION

EPLEY, J.

{¶ 1} Ronald Harris II was convicted after a jury trial of attempted murder, having weapons while under disability, carrying a concealed weapon, and improper handling of a firearm in a motor vehicle, along with accompanying firearm and repeat violent offender specifications. He received an aggregate sentence of 23 to 28½ years in prison. Harris appeals from his convictions, claiming that the trial court improperly impaneled the jury without his presence and improperly denied his attorney’s pretrial motion to withdraw. For the following reasons, the trial court’s judgment will be affirmed.

I. Facts and Procedural History

{¶ 2} At 9:48 p.m. on January 9, 2022, after a brief verbal exchange, Harris drew a firearm from his pocket and shot Matthew Westmoreland as Westmoreland stood by the front door to the two-story apartment building in which they both lived. The bullet entered Westmoreland’s chest, exited his back, went through the front door, and lodged in a wall in the foyer. Harris left the scene and went to a residence in Urbana, where the police later found him. The gun Harris used was located in his vehicle behind the residence. Harris had prior felony convictions for aggravated robbery and drug abuse.

{¶ 3} Less than two weeks later, Harris was charged in a seven-count indictment with attempted murder, felonious assault, carrying a concealed weapon, improper handling of a firearm in a motor vehicle, improperly discharging a firearm at or into a habitation, and two counts of having weapons while under disability. The attempted murder and felonious assault counts included a firearm specification and a repeat violent offender specification.

{¶ 4} In February 2022, Harris entered a plea of not guilty by reason of insanity, and his defense counsel raised questions about his competency. The trial court ordered a competency evaluation. On April 11, 2022, prior to the competency evaluation, defense counsel moved to withdraw on the ground that Harris wished to represent himself. Counsel requested an expedited hearing on the motion. At the hearing on April 14, the trial court indicated that it wanted to wait to rule on the motion until the competency report was received and a competency hearing held.

{¶ 5} The competency hearing was held on April 28, 2022, during which the parties stipulated to the competency report finding Harris to be competent. The trial court also talked extensively with Harris about his desire to represent himself. Ultimately, Harris requested that a private attorney (rather than a public defender) be appointed to represent him. The court agreed and permitted Harris’s counsel to withdraw. Later that day, the trial court appointed new counsel for Harris. The jury trial was scheduled for May 23, 2022. New counsel requested a continuance of that date, which was granted. The trial was rescheduled for July 27, 2022.

{¶ 6} On May 16, Harris filed a motion to suppress the evidence obtained from the search of Harris’s vehicle. Defense counsel cited deficiencies in the search warrant and in the execution of the warrant. After a hearing on June 27, 2022, the trial court denied the motion to suppress. Harris also filed several pro se motions between May and July 2022. The trial court overruled these motions because he was represented by counsel.

{¶ 7} On July 26, 2022, the day before trial, defense counsel sought to withdraw. He represented that "communication and trust between counsel and the Defendant has broken down to the point that effective representation is no longer possible. The Defendant has requested on more than one occasion new counsel and/or to represent himself." The trial court held a hearing that morning. After speaking with defense counsel and Harris and addressing Harris’s concerns, the trial court overruled the motion.

{¶ 8} A two-day jury trial began on July 27, 2022, as scheduled. The trial court noted, at the outset, that Harris, was not present and was "refusing to come into the courtroom." The court explained to the prospective jurors that Harris had the right to be there and knew that he could come in at any time, and although the court and the parties were uncomfortable with his absence, "really we have no choice but to proceed without him." Jury selection proceeded and the jury was impaneled and sworn without Harris present. He joined the proceedings after the lunch recess, at which time the prosecutor gave his opening statement.

{¶ 9} After opening statements, the State presented the testimony of Westmoreland, a responding Springfield police officer, an eyewitness, the evidence, technician who processed the scene and Harris’s vehicle, a firearms identification examiner with the Ohio Bureau of Criminal Investigations (BCI), and two Springfield detectives. It also offered numerous exhibits, including surveillance videos from the apartment building, still photographs, the spent bullet and cartridge, the gun and magazine, Harris’s clothing, a bullet found in Harris’s pocket, the BCI report, and certified copies of the judgment entries for Harris’s prior convictions. Harris testified on his own behalf, claiming that he had acted in self-defense. After deliberating, the jury found Harris guilty of all charges and the accompanying firearm specifications. Per R.C. 2941.149(B), the trial court later determined that Harris was a repeat violent offender.

{¶ 10} At sentencing, the trial court merged the attempted murder, felonious assault, and improper firing of firearm charges and also merged the two having weapons while under disability charges. It imposed 3 years for having weapons under disability, 18 months for carrying a concealed weapon, and 18 months for improper handling of a firearm in a motor vehicle, to be served concurrently. That aggregate three-year sentence was to be served consecutively to a term of 11 to 16½ years for attempted murder. The trial court also sentenced Harris to three years for the firearm specification and six years for the repeat violent offender specification. Harris’s total sentence was 23 to 28½ years in prison.

{¶ 11} Harris appeals from his convictions, raising two assignments of error. We will address them in reverse order.

II. Motion to Withdraw

{¶ 12} In his second assignment of error, Harris claims that the trial court erred by denying his trial counsel’s motion to withdraw.

{¶ 13} Defense counsel moved to withdraw on July 26, 2022, the day before trial. At the hearing on the motion, which was held the same day, defense counsel told the court: "I don’t believe I can effectively represent him at this time. Our communication and our relationship has broken down to that extent. Mr. Harris has informed me on more than one occasion that he either wants another attorney or he wants to represent himself. Up until yesterday I thought we could work through that. I don’t believe that’s the case anymore and I'm asking to withdraw." July 26, 2022 Hrg. Tr. at 3.

{¶ 14} The court then turned to Harris and asked him "what’s the problem" When Harris responded that there were "serious defense counsel issues that I would like addressed professionally in my due process," the court asked him to identify those problems. Harris first mentioned that he had filed several pro se motions. The court told Harris that he was not allowed to file motions himself while represented by counsel, so it was not defense counsel’s fault. Harris responded that he expected defense counsel to refile the motions. The court then turned to defense counsel and asked if he had seen the motions and whether he thought the motions had any merit. Counsel said that he had seen them but did not think they had merit.

{¶ 15} Harris next told the court that he wanted to file a "Brandy" motion, which the court interpreted as a Brady motion. The court asked the prosecutor whether the State had provided discovery to the defense. The prosecutor responded that "all the information has been turned in, the witness list and -.’’The court told Harris, "Okay. You’ve gotten everything that the State has so what’s your next complaint?" Harris raised again that he had not received a "fair ruling on my own. motions." The court reiterated that he could not file pro se motions when represented by counsel and counsel thought those motions lacked merit.

{¶ 16} Finally, Harris raised that he did not believe he could get a fair trial and he wanted a "change of venue," meaning that he wanted a different judge to rule on his motions. The court explained what a change of venue actually meant and that he would continue to be the judge. Harris stated that he wanted a new judge due to the court’s "lack of accepting the motions and the defense towards my case." The trial court repeated why it had rejected his pro se motions and described the trial process, including the State’s burden of proof at trial, that he would have the right to present evidence (or not) and defend himself at trial, and that he had the right to testify in his own defense if he wanted to but could not be forced to. The court concluded:

You’ve already been through one attorney, [former defense counsel], okay? We appointed [defense counsel] to represent you. [Defense counsel] is an excellent attorney. He rarely has problems getting along with his clients so I'm not going to play this game where the day before trial you start complaining about things and asking for another lawyer. [Defense counsel] is your lawyer. He’s going to represent you tomorrow.

July 26, 2022 Hrg. Tr. at 8-9.

[1] {¶ 17} Harris now argues that the trial court did not adequately inquire about the alleged. breakdown in...