CITY OF GARFIELD HEIGHTS v. ROBERT S. WILLIAMS
No. 102279
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
February 4, 2016
[Cite as Garfield Hts. v. Williams, 2016-Ohio-381.]
BEFORE: E.A. Gallagher, P.J., Kilbane, J., and McCormack, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Garfield Heights Municipal Court, Case No. CRB-1402187
Robert L. Tobik
Cuyahoga County Public Defender
BY: Sarah E. Gatti
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Patrick J. Cooney
Garfield Heights Prosecutor
5407 Turney Road
Garfield Heights, Ohio 44125
{¶1} Defendant-appellant Robert Williams appeals his misdemeanor conviction from Garfield Heights Muniсipal Court for violating that city‘s ordinance against harboring pit bull dogs. Williams argues that the trial court violated his Sixth Amendment right to counsel and that the city failed to present sufficient evidence to support his conviction. For the follоwing reasons, we reverse in part and affirm in part.
Facts and Procedural Background
{¶2} Williams was cited with one count of violating
{¶3} Williams entered a plea of not guilty and signed an “Entry of plea and acknowledgment of rights” form wherein he acknowledged that he had been advised in open court of various rights including his right to be represented by a lawyer, his right to a reasonable continuance to obtain a lawyer and his right to have a lawyer appointed for him if he was unable to afford one. The record contains no further mention of Williams’ right to counsel and the сase proceeded to a bench trial where the following facts were elicited.
{¶4} On August 13, 2014, two pit bulls entered Aisha Crawford‘s backyard from Christine Yancey‘s yard through a hole in a fence separating the two properties. The pit bulls attacked and injured Crawford‘s dog before they were restrained and recovered by Williams. The evidence revealed that the pit bulls were owned by Yancey‘s partner who frequently stays at Yancey‘s home and brings her pit bulls to the home. Williams is Yancey‘s uncle. He resides in Yancey‘s home and he assists in caring for Yancey‘s children.
{¶6} The trial court found Williams guilty of violating
Law and Analysis
Right to Counsel
{¶7} In his first assignment of error, Williams argues that the trial court violated his Sixth Amendment right to counsel by failing to obtain a valid waiver of counsel.
{¶8} Included in the trial court‘s record for this case is a document, not identified by a case caption or case number, dated August 27, 2014, and ostеnsibly signed by Williams. This document is captioned “ENTRY OF PLEA AND ACKNOWLEDGMENT OF RIGHTS” and includes the following language:
The undersigned further acknowledges that he/she has been advised in open court of the following:
1. My right to a trial, including my right to trial by jury if the offense(s) charged is (are) more serious than a minor misdemeanor;
2. My right to be represented by a lawyer;
3. My right to have a reasonable continuance to obtain a lawyer;
4. My right to have a lawyer appointed for me if I am unable to afford a lawyer; * * *
{¶9} The
{¶10} When defendants manage their own defense, however, they relinquish, “as a purely factual matter, many of the traditional benefits associated with the right to counsel.” Faretta at 834. For this reason, in order to represent themselves, defendants must “knowingly and intelligently” forgo those relinquished benefits. Id. at 835. Although defendants do not need to have the skill and experience of a lawyer to competently and intelligently choose self-representation, they should be made aware of the dangers and disadvantages of self-representation, so that the record establishes that they know what they are doing and their “choice is made with eyes open.” Id.
{¶12} In the context of petty offenses,
(B) Counsel in petty offenses. Where a defendant charged with a petty offense is unable to obtаin counsel, the court may assign counsel to represent him. When a defendant charged with a petty offense is unable to obtain counsel, no sentence of confinement may be imposed upon him, unless after being fully advised by the court, he knowingly, intelligently, and voluntarily waives assignment of counsel.
(C) Waiver of counsel. Waiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in
Rule 22 . In addition, in serious offense casеs the waiver shall be in writing.
{¶13} Therefore, pursuant to
{¶15} In this instance no waiver of counsel was obtained from Williams. The city argues that Williams waived his right to counsel by signing the above quoted acknowledgment of rights form and through which he entered a not guilty plea. However, it is a basic premise of the law that waivers of constitutional rights are not presumed; in fact, we engage in every reasonable presumption against the waiver of rights. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 1923, ¶ 31. The word “waive” or any derivation thereof does not appear on the acknowledgment of rights form at all. This court has refused to find a waiver of counsel under nearly identical circumstances. State v. Coleman, 8th Dist. Cuyahoga No. 99369, 2013-Ohio-4792, ¶ 7-11. As in Coleman, the acknowledgment of rights form in this instance was insufficient to constitute a waiver of Williams’ right to counsel.
{¶16} Despite the lack of a valid waiver the city argues that Williams’ Sixth Amendment rights were not violated because the trial court did not impose a sentence of imprisonment. The United States Supreme Court has held that the right to counsel in misdemeanor cases attaches only in cases leading to “actual imprisonment.” Alabama v. Shelton, 535 U.S. 654, 661, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002); Scott v. Illinois, 440 U.S. 367, 373-374, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Argersinger v. Hamlin, 407 U.S. 25, 33, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). This court has held that a trial court‘s failure to obtain a valid waiver of counsel in a petty offense
{¶17} However, in Shelton, the United States Supreme Court held that a suspended term of imprisonment, contingent on compliance with probation, constitutes a prison term imposed for the offense of conviction and must be treated as actual imprisonment. Shelton at 662. In Lakewood v. McDonald, 8th Dist. Cuyahoga No. 84465, 2005-Ohio-394, this court held that the imposition of community control sanctions, the viоlation of which could lead to the possibility of jail time, was the functional equivalent of the suspended sentence in Shelton. Id. at ¶ 10. Because the trial court did not advise McDonald of his right to counsel or properly obtain McDonald‘s waivеr of that right, we vacated the community control sanction. Id. at ¶ 11. Importantly, we held that the remaining sanctions imposed by the court in McDonald remained unaffected by the violation of the right to counsel. Id. at ¶ 11; see also State v. Boughner, 11th Dist. Geauga No. 98-G-2161, 1999 Ohio App. LEXIS 6116, *26 (Dec. 17, 1999).
{¶18} Therefore, we conclude that the trial court‘s imposition of the suspended jail term and corresponding community control sanction where Williams was not represented by counsel and a valid waiver was not obtained violated
{¶19} Williams’ first assignment of error is sustained in part, and overruled in part.
{¶20} In his second assignment of error, Williams argues that his conviction was not supported by sufficient evidence.
{¶21} This court has said that, in evaluating a sufficiency of the evidence argument, courts are to assess not whether the state‘s evidence is to be believed but whether, if believed, the evidence against a defendant would support a conviction. State v. Givan, 8th Dist. Cuyahoga No. 94609, 2011-Ohio-100, ¶ 13, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). The relevant inquiry then is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id.
{¶22}
{¶23} We also find that the city presented sufficient evidence to establish that Williams was a keeper of the pit bulls. This court has previously stated that “[a] keeper of a dog is a person who has the duty to manage, care or control the dog temporary or otherwise, even though he or she does not own it.” Cleveland Hts. v. Jones, 8th Dist. Cuyahoga No. 86313, 2006-Ohio-454, ¶ 12, quoting Buettner v. Beasley, 8th Dist. Cuyahoga No. 83271, 2004-Ohio-1909, ¶ 14. Here, Crawford‘s testimony established that Williams routinely cared for the рit bulls such that she described him as the “primary caretaker” who would take them outside.
{¶24} Williams’ second assignment of error is overruled.
{¶25} The judgment of the trial court is affirmed in part and reversed in part. Williams’ suspended jail term and community control sanctions are vacated. Williams’ restitution obligation remains in effect.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issues out of this court directing the municipal court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, PRESIDING JUDGE