2007 Ohio 2324 | Ohio Ct. App. | 2007
Lead Opinion
{¶ 3} On February 6, 2006, appellant appeared before the trial court for arraignment. Appellant appeared simultaneously with his sister, both appearing individually, having been charged with identical offenses. Both juveniles were accompanied by their parents.
{¶ 4} At the arraignment hearing, appellant admitted the charges, without the assistance of counsel. Via Judgment Entry of February 7, 2006, the trial court adjudicated appellant delinquent on both charges.
{¶ 5} On March 7, 2006, appellant again appeared before the trial court, and the court imposed a term of probation. Appellant was not represented by counsel at this disposition hearing. The trial court memorialized appellant's sentence via Judgment Entry filed March 8, 2006. *3
{¶ 6} On March 20, 2006, appellant's probation officer filed a motion for further hearing, alleging appellant violated the terms of his probation. On the same day, appellant appeared before the trial court, again without representation by counsel, and admitted to the probation violation. Via Judgment Entry of March 21, 2006, the trial court adjudicated appellant a probation violator.
{¶ 7} On March 24, 2006, appellant again appeared before the trial court without counsel for disposition resulting from his probation violation. Via Judgment Entry of March 27, 2006, the trial court committed appellant to the Ohio Department of Youth Services for a minimum of one year, maximum of age twenty-one. The court also suspended appellant's driving privileges until the age of twenty-one.
{¶ 8} Appellant now appeals, assigning as error:
{¶ 9} "I. THE TRIAL COURT VIOLATED HARLEY MCDONALD'S RIGHT TO COUNSEL AND RIGHT TO DUE PROCESS UNDER THE
{¶ 10} "II. THE TRIAL COURT ERRED IN DEPRIVING HARLEY MCDONALD OF HIS RIGHT TO APPLY FOR DRIVING PRIVILEGES BECAUSE THE STATUTE DOES NOT PROVIDE FOR THAT SANCTION AS A DISPOSITIONAL OPTION FOR HARLEY'S OFFENSES.
{¶ 11} "III. THE TRIAL COURT ERRED WHEN IT FAILED TO HOLD A HEARING TO DETERMINE WHETHER HARLEY MCDONALD, A JUVENILE, WAS ABLE TO PAY THE SANCTION IMPOSED BY THE JUVENILE COURT AND WHEN IT *4 FAILED TO CONSIDER COMMUNITY SERVICE IN LIEU OF THE FINANCIAL SANCTIONS IN VIOLATION OF R.C. 2152.20."
{¶ 13} R.C.
{¶ 14} "A child, the child's parents or custodian, or any other person in loco parentis of the child is entitled to representation by legal counsel at all stages of the proceedings under this chapter or Chapter 2152. of the Revised Code. If, as an indigent person, a party is unable to employ counsel, the party is entitled to have counsel provided for the person pursuant to Chapter 120. of the Revised Code except in civil matters in which the juvenile court is exercising jurisdiction pursuant to division (A)(2), (3), (9), (10), (11), (12), or (13); (B)(2), (3), (4), (5), or (6); (C); (D); or (F)(1) or (2) of section
{¶ 15} Juvenile Rule 4(A) governs assistance of counsel, stating: *5
{¶ 16} "(A) Every party shall have the right to be represented by counsel and every child, parent, custodian, or other person in loco parentis the right to appointed counsel if indigent. These rights shall arise when a person becomes a party to a juvenile court proceeding. When the complaint alleges that a child is an abused child, the court must appoint an attorney to represent the interests of the child. This rule shall not be construed to provide for a right to appointed counsel in cases in which that right is not otherwise provided for by constitution or statute."
{¶ 17} Juvenile Rule 29(B) provides in pertinent part:
{¶ 18} "(B) Advisement and findings at the commencement of thehearing
{¶ 19} "At the beginning of the hearing, the court shall do all of the following:
{¶ 20} "(1) Ascertain whether notice requirements have been complied with and, if not, whether the affected parties waive compliance;
{¶ 21} "(2) Inform the parties of the substance of the complaint, the purpose of the hearing, and possible consequences of the hearing, including the possibility that the cause may be transferred to the appropriate adult court under Juv. R. 30 where the complaint alleges that a child fourteen years of age or over is delinquent by conduct that would constitute a felony if committed by an adult;
{¶ 22} "(3) Inform unrepresented parties of their right to counsel and determine if those parties are waiving their right to counsel;
{¶ 23} "(4) Appoint counsel for any unrepresented party under Juv. R. 4(A) who does not waive the right to counsel;
{¶ 24} "(5) Inform any unrepresented party who waives the right to counsel of the right: to obtain counsel at any stage of the proceedings, to remain silent, to offer *6 evidence, to cross-examine witnesses, and, upon request, to have a record of all proceedings made, at public expense if indigent."
{¶ 25} In In re Gault (1967),
{¶ 26} A defendant's waiver of the right to counsel must be voluntary, knowing and intelligent. State v. Gibson (1976),
{¶ 27} The trial court must fully and clearly explain the right to counsel, and the party must then affirmatively waive the right on the record. In re East (1995),
{¶ 28} In Gibson supra, the Ohio Supreme Court held a trial court must provide sufficient warning to the defendant of the seriousness of the trial and the possible results it could have for his liberty and life. The Court stated:
{¶ 29} "* * * This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver *7
by the accused.' To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. * * *" Gibson, supra, at 376-377, citing Von Moltke v. Gillies (1948),
{¶ 30} In State v. Martin (2004),
{¶ 31} " To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.' " Id. at 377, 74 O.O.2d 525,
{¶ 32} * * *
{¶ 33} "The trial court cautioned Martin at times that it would be best if Martin were represented by counsel ("I would caution you against abandoning your lawyers but that's your choice"). But the court did not adequately explain the nature of the charges, *8
the statutory offenses included within them, the range of allowable punishments, possible defenses, mitigation, or other facts essential to a broad understanding of the whole matter, per Von Moltke,
{¶ 34} "We therefore conclude that Martin was not "made aware of the dangers and disadvantages of self-representation' so that the record established that `he [knew] what he [was] doing and his choice [was] made with eyes open.' Faretta,
{¶ 35} In State v. Bumphus (February 11, 2005), App. No. E-030043, 2005-Ohio-536, the Sixth District Court of Appeals, addressed this issue, holding:
{¶ 36} "To establish an effective waiver of right to counsel, the trial court must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right.'Gibson, paragraph two of the syllabus. To be valid [a defendant's] waiver [of counsel] must be made with an apprehension of the nature of the charges, the statutory offense included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.' Martin, supra, at ¶ 40, citingGibson, supra, at 377,
{¶ 37} Similarly, the Ninth District held in State v. Yeager (Sept. 21, 2005), App. No. 21510,
{¶ 38} "However, `[c]ourts are to indulge every reasonable presumption against the waiver of a fundamental constitutional right including the right to be represented by counsel.' (Citations omitted.) State v.Dyer (1996),
{¶ 39} `In determining the adequacy of the trial court's inquiry in the context of a defendant's waiver of counsel, this Court reviews the totality of the circumstances. State v. Ragle, 9th Dist. No. 22137,
{¶ 40} In the case sub judice, appellant appeared at the February 6, 2006 arraignment hearing with his parents, unrepresented by counsel. The following *11 exchange took place during the hearing relative to appellant's proceeding unrepresented:
{¶ 41} "The Court: Do you understand what you're charged with?
{¶ 42} "Harley: Yes, sir.
{¶ 43} "The Court: Do you have any question about what you're charged with?
{¶ 44} "Harley: No, sir.
{¶ 45} "The Court: Megan, did you follow along as I read through the complaint?
{¶ 46} "Megan: Yes, sir.
{¶ 47} "The Court: Do you understand what you're charged with?
{¶ 48} "Megan: Yes, sir.
{¶ 49} "The Court: Do you have any question about what you're charged with?
{¶ 50} "Megan: No, sir.
{¶ 51} "The Court: I've been handed rights explanations forms in both cases. In both cases they've been signed. In Harley's case it was signed by Wayne McDonald, which is what he goes — goes by, and his father. And I see that in Megan's case it was signed by Megan and her mother. Let me explain to both of you that any time you come to court you have the right to have an attorney represent you even if you can't afford one. Harley, do you understand that?
{¶ 52} "Harley: Yes, sir.
{¶ 53} "The Court: Do you want a lawyer to represent you in this case?
{¶ 54} "Harley: No, I don't, sir.
{¶ 55} "The Court: Dad, are you in agreement with his decision to go ahead without a lawyer? *12
{¶ 56} "Mr. McDonald: Yes, sir.
{¶ 57} "The Court: Mom, are you in agreement?
{¶ 58} "Ms. McDonald: Yes, sir.
{¶ 59} "The Court: Megan, do you understand that you have the right to have a lawyer represent you in this case?
{¶ 60} "Megan: Yes, sir.
{¶ 61} "The Court: Do you know that if you or your family can't afford one the court would appoint a lawyer to represent you free of charge?
{¶ 62} "Megan: Yes, sir.
{¶ 63} "The Court: Do you want a lawyer to represent you in this case?
{¶ 64} "Megan: No, sir.
{¶ 65} "The Court: Mom, do you agree with respect to Megan?
{¶ 66} "Ms. McDonald: Yes, sir.
{¶ 67} "The Court: Dad, do you agree as well?
{¶ 68} "Mr. McDonald: Yes, sir.
{¶ 69} "The Court: Very well. The next thing we need to do is have you both enter pleas. In juvenile court there are two possible pleas. You can either admit or deny a charge. An admission means that what's in the complaint's true, you're accepting full responsibility for it, you're saying you don't want to have a trial, you're giving up all the rights that go along with having a trial, giving up any defenses that you might have to the charge, throwing yourself on the mercy of the Court. On the other hand, a denial means you disagree with all or part of what's in the complaint or that you have some sort of defense to the charge, or simply that you want to exercise your *13 Constitutional rights to see if the State can prove what they've charged you with doing. You're each also charged with two separate offenses so you don't have to enter the same plea on both counts. For example, you could admit to one and deny the other. And the two of you aren't in any way bound by what the other does. I mean, Harley could admit to both of his and and Megan could deny hers. I mean, this is four separate counts. Each of you need to separately enter pleas on your own counts. Harley, do you understand that?
{¶ 70} "Harley: Yes, sir.
{¶ 71} "The Court: Are you ready to enter a pleas in this matter?
{¶ 72} "Harley: Yes, sir. Sir, I mean, the — all that I didn't take all that stuff right there, sir.
{¶ 73} "The Court: The way your complaint reads is it says Harley with two others broke into Rhonda Yates' home and all three stole the following and then it gives the list.
{¶ 74} "Harley: No, sir. That . . .
{¶ 75} "The Court: It says — hang on.
{¶ 76} "Harley: Okay.
{¶ 77} "The Court: It says the allegation is that's what was stolen between the three of you. It's not picking out who did what. It's saying between the three of you all those things were stolen. That's what you're charged with. I can't get into it right now whether you did or didn't do it. If you want to deny you did that, then you should enter a plea of denial. But you understand it's not saying you stole all of those things *14 individually? It says the three of you went in and all those things were stolen between the three of you. You understand then what you're charged with?
{¶ 78} "Harley: Yes, sir.
{¶ 79} "The Court: Megan, do you understand that as well?
{¶ 80} "Megan: Yes, but . . .
{¶ 81} "The Court: Okay. But what?
{¶ 82} "Megan: When I stole the C-Ds I put them back.
{¶ 83} "The Court: Okay. I — I don't want to get into what happened. We're not — at that point. Do you understand what you're charged with?
{¶ 84} "Megan: Yes, sir.
{¶ 85} "The Court: As I've just explained the pleas, for each count you can either admit or deny. Or if you think there's some confusion now about what you should be charged with, you can still change your mind and ask for an attorney.
{¶ 86} "Harley: I'll admit to the charge, sir.
{¶ 87} "The Court: You're charged with with a burglary. Do you want to admit to that?
{¶ 88} "Harley: Yes, sir.
{¶ 89} "The Court: Harley, is it correct you also want — what do you want to — what plea do you want to enter to the underage alcohol consumption charge?
{¶ 90} "Harley: I don't want to lie, sir, so I'll do it too, sir.
{¶ 91} "The Court: You want to admit to that as well?
{¶ 92} "Harley: Yes, sir. *15
{¶ 93} "The Court: And, Megan, you're charged with the same two offenses. Do you understand what you're charged with . . .
{¶ 94} "Megan: Yes, sir.
{¶ 95} "The Court: . . . in the burglary?
{¶ 96} "Megan: They're not saying you stole all those things. They're saying you were part of a burglary and all those things were stolen between the three of you. Now do you understand what you're charged with?
{¶ 97} "Megan: Yes, sir.
{¶ 98} "The Court: Do you want to admit or deny the burglary charge?
{¶ 99} "Megan: Admit.
{¶ 100} "The Court: Do you understand by admit do you okay. Before I get to that. As far as Count Two, it's the underage alcohol consumption charge of that you were drinking beer. Do you want to admit or deny that?
{¶ 101} "Megan: Admit.
{¶ 102} "The Court: So you want to admit to both charges?
{¶ 103} "Megan: Yes, sir.
{¶ 104} "The Court: Harley, and you want to admit to both charges?
{¶ 105} "Harley: Yes, sir.
{¶ 106} "The Court: Let me explain a number of things before we go any further. By admitting to these charges both of you are giving up the right to have a trial, giving up all the rights that go along with having a trial, and giving up any defenses that you might have to the charge. Do you understand that, Harley?
{¶ 107} "Harley: Yes, sir." *16
{¶ 108} Tr. at 5-12
{¶ 109} On March 20, 2006, appellant again appeared before the trial court without counsel for an adjudication hearing on his probation violation. During the hearing, the following exchange occurred:
{¶ 110} "The Court: Before the court is the matter of Harley Wayne McDonald. This is A2006, Case Number 90. We were just here on March the 7th, less than two weeks ago, I released Harley from detention and placed him on probation. And then this morning Ms. Norris filed a motion for further hearing alleging that Harley had violated his probation. Harley is back today with his father. Ms. Norris is here and Ms. Layton's here from Family Intervention Services. Harley, did you receive a copy of the motion for further hearing?
{¶ 111} "* * *
{¶ 112} "The Court: Do you understand what you're charged with?
{¶ 113} "Harley: Yes, sir.
{¶ 114} "The Court: Do you have any question about what you're charged with?
{¶ 115} "Harley: No, sir.
{¶ 116} "The Court: I'm going to hand you the rights explanation form that's been signed by Harley and his father and I see the waiver of attorney section has been signed by both. Harley, you understand that you have the right to have a lawyer represent you in this matter?
{¶ 117} "Harley: Yes, sir.
{¶ 118} "The Court: You know that if you or your family can't afford one the court will appoint a lawyer to represent you free of charge? *17
{¶ 119} "Harley: Yes, sir.
{¶ 120} "The Court: Do you want a lawyer to represent you in this case?
{¶ 121} "Harley: No, sir.
{¶ 122} "The Court: Dad, do you agree with his decision to go ahead without a lawyer?
{¶ 123} "Mr. McDonald: Yes, sir.
{¶ 124} "The Court: The next thing we need to do then is have you enter a plea. There are two possible pleas. You can either admit or deny that you violated your probation as alleged in the motion. Do you understand what the two pleas are and what they mean?
{¶ 125} "Harley: Yes, sir.
{¶ 126} "The Court: Are you ready to enter a plea?
{¶ 127} "Harley: I deny the charge, sir.
{¶ 128} "The Court: All right. Now you said you've don't want to have an attorney but you want to deny the charge. So you want to have a full hearing to decide whether you violate violated your probation but you want to do that without an attorney?
{¶ 129} "Harley: I don't know, sir. I just know that I called I called my mom saying I was I told her I was sick and stuff. She was going to run me out to the hospital later on that night or to go to see like what was wrong with me. I've been having migraines and stuff and I have a big record of migraines and I I (inaudible) hurt real bad and . . . *18
{¶ 130} "The Court: Well, you can have a full hearing without an attorney if that's what you want to do. So you just want to come in and tell your side of the story without an attorney?
{¶ 131} "Harley: Yes, sir.
{¶ 132} "The Court: Dad, are you in agreement with that plan?
{¶ 133} "Mr. McDonald: Is that what you want to do, Wayne?
{¶ 134} "Harley: (Inaudible.) If I admitted to the charge, will I get to tell my side of the story, sir?
{¶ 135} "The Court: You would, but I'll tell you you're you're in real serious risk of going to D-Y-S. I'm not I haven't prejudged or made a decision that's going to happen, but there's at least a serious concern that that's going to happen. But certainly I'll hear anything you have to say if you want to admit to the charge. But I don't want anyone to — I don't want you to feel pressured into admitting to something you don't — don't think that you did.
{¶ 136} "Harley: Then can I — will I be able to represent myself, sir?
{¶ 137} "The Court: You can represent yourself.
{¶ 138} "Harley: Can I do that, sir?
{¶ 139} "The Court: Sure. So you want to deny the charge . . .
{¶ 140} "Harley: Yes, sir.
{¶ 141} "The Court: . . . and have a hearing on it, but you want to represent yourself?
{¶ 142} "Harley: Yes, sir.
{¶ 143} "The Court: Dad, you in agreement with that? *19
{¶ 144} "Mr. McDonald: I don't think Wayne understands what he's saying to be honest with you, Your Honor.
{¶ 145} "The Court: Well, let me tell you how a — a probation violation hearing is about like a trial. It's a little different. The burden of proof is — is less and it's a little less formal hearing. But basically I have to, at the end of the hearing, hear from the State, hear from Harley if he wants to present anything, and decide whether the Agency or the probation department and the State has proved by substantial evidence. That means that it's not convinced beyond a reasonable doubt, just that there's substantial evidence to believe that he violated his probation. It sounds like no one's disputing the fact that he wasn't in school on Friday. It sounds to me like Harley's theory is that he wasn't there but he had a reason for not being there. And I I may be reading between the lines and may be wrong. So, I mean, if that's the simple thing, he probably can tell me why he wasn't' there. But, on the other hand, to ensure — to best ensure that his rights are protected perhaps you want — may want to get him an attorney. But ultimately I'm not here to tell you whether to get an attorney or not. That's — that's the family's decision. It's ultimately Harley's decision to be made with his parent's.
{¶ 146} (Inaudible discussion between juvenile and his father.)
{¶ 147} "Harley: Am I — I'm being charged with not going to school, sir?
{¶ 148} "* * *
{¶ 149} "The Court: I don't want there to be any — cause remember I also asked has any have any threats or promises been made. I'll promise you I'll hear your story, but that's the only promise I'm making. Understand?
{¶ 150} "Harley: Yes, sir. *20
{¶ 151} "The Court: But I'm also telling you honestly I haven't made up my mind that D-Y-S is the right answer either. I will keep an open mind. We clear on that?
{¶ 152} "Harley: (Inaudible.)
{¶ 153} "The Court: On that basis then how do you want to proceed?
{¶ 154} "Harley: I'm guilty, sir.
{¶ 155} "The Court: You want to admit to the charge?
{¶ 156} "Harley: Yes, sir.
{¶ 157} "The Court: You understand that by admitting that you're giving up the right to have an evidentiary hearing, giving up all the rights that go along with having a hearing, giving up any defenses that you might have to the motion?
{¶ 158} "Harley: Yes, sir.
{¶ 159} "The Court: By defenses that might mean things such as you missed a day of school but you were sick. I don't know that that would be a defense to not calling your P-O. I guess if you had laryngitis or something and you couldn't call that might be a defense. But I mean if there was some defense, you could — you could raise that in a hearing. You understand that?
{¶ 160} "Harley: Yes, sir.
{¶ 161} "The Court: If we had a full hearing, I wouldn't find you a probation violator unless the case was proved by substantial evidence. You'd have the right to have an attorney represent you and, If you couldn't afford one, the court would appoint one to represent you free of charge. You'd have the right to confront and cross-examine the witnesses against you. You'd have the right to testify and give your side of the story if you wanted to or the right to remain silent without your silence being held against you in *21 any way. You'd have the right to bring your own witnesses into court if you had any. If you had witnesses that didn't' want to come in on their own, the court would issue subpoenas which are court orders requiring your witnesses to come to court. If we had a full hearing, we would tape record it so there'd be a permanent record of everything said and done so that if you didn't like the way I decide the case you could appeal my decision to Judge Hoover, who's head of the court, or you could appeal to a higher court which would be the Licking County Court of Appeals. You'd have the right to have an attorney represent you on appeal and, if you couldn't afford one, the court would appoint a lawyer to represent you on appeal and, if you admit to this, there's not going to be a trial so there's not going to be anything to appeal so you're giving up all those rights. You still keep the right to give an explanation before I decide what's going to happen, but you can't quite say that you didn't commit a probation violation. If you admit to it, you're saying it happened so you can't present evidence that it didn't happen. But you can present evidence or or tell me any reason any explanation or maybe anything in terms of mitigation. In other words, that would make it seem less serious than it really is, but you can't say it didn't happen. You can only give me an explanation of why or maybe why why I shouldn't put you in D-Y-S. you understand what I'm saying?
{¶ 162} "Harley: (No audible response.)
{¶ 163} "The Court: So you understand what the possible penalties are here?
{¶ 164} "Harley: Yeah.
{¶ 165} "The Court: Okay. You were on probation for two charges, the most serious the burglary charge. I could lock you up in D-Y-S for a minimum period of a *22 year to a maximum period of your twenty-first birthday. I could restore you to your existing terms of your probation. I could impose new terms of probation. I could impose finds [sic], court costs, restitution, community service hours. I could suspend your right to drive till age twenty-one. Take you out of your home and put you in a foster home. All those things are possible. Do you understand that?
{¶ 166} "Harley: (Inaudible.)
{¶ 167} "The Court: Has anyone threatened you or promised you anything to get you to admit this probation violation?
{¶ 168} "Harley: No, sir.
{¶ 169} "The Court: You're doing this of your own free will? And so to make sure you're — you're under no misunderstanding, I may — at the end of this hearing, I may very well send you to D-Y-S. You understand that?
{¶ 170} "Harley: Yes, sir.
{¶ 171} "The Court: And I might not. I'm going to hear what you have to say, I'm going to hear what Ms. Norris has to say, and I'll make the decision. But I want to make it clear, no one's promising you anything. You understand?
{¶ 172} "Harley: (No audible response.)
{¶ 173} "The Court: You still want to give up your rights, you understand what the possible penalties are if you admit to this charge?
{¶ 174} "Harley: Yeah.
{¶ 175} "The Court: Dad, are you in agreement with him admitting?
{¶ 176} "Mr. McDonald: Yes, sir."
{¶ 177} Tr. at 2-16 *23
{¶ 178} Upon our review of the initial February 6, 2006 exchange, we find the trial court did not adequately determine whether appellant's waiver of counsel was made voluntarily, knowingly and intelligently. The trial court did not make sufficient inquiry to determine whether the juvenile fully understood and intelligently relinquished his right to counsel. The trial court did not adequately warn appellant of the dangers and disadvantages of self-representation. As discussed in our analysis of Ohio caselaw, the trial court should have advised appellant of the nature of the charges and the range of allowable punishments, and in addition, the possible defenses to the charges and applicable mitigating circumstances, prior to accepting appellant's waiver of counsel.
{¶ 179} Further, the trial court does not cure this initial deficient waiver of counsel by engaging in additional colloquy with the appellant later in the proceedings relative to appellant's entering an admission or denial of the charge. As we have found appellant's initial waiver of counsel defective, all other proceedings thereafter are necessarily similarly tainted.
{¶ 180} Appellant's first assignment of error is sustained.
{¶ 182} For the foregoing reason, the judgment of the Licking County Court of Common Pleas, Juvenile Division, is reversed, and the cause remanded to the trial court for further proceedings in accordance with the law and this opinion. By: Hoffman, J., Delaney, J. concurs separately.
Gwin, P.J. dissents. HON. WILLIAM B. HOFFMAN HON. W. SCOTT GWIN HON. PATRICIA A. DELANEY *25
Concurrence Opinion
{¶ 183} I concur with the majority opinion and write separately to explain that a signed waiver of rights form does not constitute a substitute for a trial court's duty to conduct a thorough, on-the-record inquiry concerning a juvenile's comprehension of the offer of counsel and of the decision to waive counsel under Juv. R. 29(B)(3).
{¶ 184} Without a detailed inquiry, it cannot be ascertained whether the waiver of counsel was made "knowingly, intelligently and voluntarily" in consideration of the juvenile's age, emotional stability, mental capacity, and prior criminal experience. In Re:Christner, Tuscarawas App. No. 2004AP020014, 2004-Ohio-4252; In Re:Kindred, Licking App. No. 04CA7,
{¶ 185} In this case, there was a perfunctory reference to the waiver of counsel at the beginning of the adjudication hearing. Appellant, a fifteen-year-old charged with a second degree felony, was informed of the right to counsel, asked if he understood and if he wanted a lawyer. Appellant indicated he understood and stated he did not want a lawyer. The father indicated his agreement with his son's decision to proceed without a lawyer. The trial court then proceeded to address appellant's plea to the charge.1
{¶ 186} Under our prior precedent, merely informing a juvenile of the right to counsel and asking the juvenile if he understands and wants a lawyer does not *26 constitute a dialogue sufficient to demonstrate the juvenile's comprehension of the right to counsel and waiver of the right.
{¶ 187} The record does not reflect the court conducted any further on-the-record examination of appellant prior to entering a plea, such as informing appellant of the rights afford under Juv. R. 29(B)(5) (i.e. right remain silent, and cross-examining witness); the advantages and disadvantages of his decision to waive counsel; and the right to counsel to advise him in connection with his decision whether to admit or deny the allegation. In Re Kindred, at ¶ 29, concurring opinion, ("[a]ny waiver of counsel by such child must be done with clear knowledge of what counsel can do for the child").
{¶ 188} Instead, the trial court proceeded to enter and accept the appellant's plea under the provisions of Juv. R. 29 (C) and (D). The trial court adequately advised the appellant of his rights under Juv. R. 29 (D) in connection with his admission to the charge, but this colloquy cannot logically be substituted for the requirement of substantially compliance with Juv. R. 29 (B), which must necessarily take place prior to the juvenile's plea.
{¶ 189} This Court is sensitive to the time pressures present each day in the trial courts. But adherence to the provisions of Juv. R. 29 should be required when addressing the issue of waiver, especially here, in felony proceedings, and the record is unclear about appellant's prior history and any earlier legal representation. Further, a thorough and careful waiver procedure will ultimately save time and resources by reducing the likelihood of reversal and new trial. JUDGE PATRICIA A. DELANEY
Dissenting Opinion
{¶ 190} I would find the trial court properly determined the appellant knowingly, intelligently and willingly waived his right to counsel.
{¶ 191} Although an accused may choose to forgo representation, any waiver of the right to counsel must be knowing, voluntary, and intelligent, see Iowa v. Tovar (2004),541 U.S. 77,
{¶ 192} In Tovar, supra, the United States Supreme Court held " [T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances-even though the defendant may not know the specific detailed consequences of invoking it." Tovar
{¶ 193} Prior to the initial hearing appellant and his father received a seven page Order to Appear and Explanation of Rights, printed on bright yellow paper. In addition to the notice of hearing, the document describes the juvenile proceedings. The document contains an explanation of the juvenile's rights in *28 court, including the right to remain silent, the right to offer evidence and subpoena witnesses, the right to compel the state to prove its case beyond a reasonable doubt, the right to confront witnesses, and the right to a transcript, provided free if the juvenile is indigent.
{¶ 194} The document then describes the right to counsel and contains a waiver of counsel, along with lines for the juvenile and parent to sign separately from the rest of the document. Appellant and his father both signed the waiver. The document advises what happens on the initial appearance, gives detailed descriptions of the various possible pleas and dispositions, the definition of serious youthful offender and bindover to adult court, the role of the magistrate, the right to appeal, the special provisions for juvenile sex offenders, and the right to expungement. Appellant and his father signed a second time, below the statement: "The undersigned have read and understand the explanations contained above."
{¶ 195} At the February 6, 2006 hearing, the trial court read appellant the complaint and reviewed the explanations of rights form containing the written waiver. I would find the written explanation and waiver is more than adequate to inform appellant and his father of his rights.
{¶ 196} Nevertheless, the court explained all appellant's rights to him, asking at frequent intervals if appellant understood. Appellant repeatedly stated he understood. The court explained appellant's right to an appointed attorney, the possible pleas, and the charges. The court refused to listen to the appellant's *29 version of events, explaining they had not yet reached that point in the proceedings.
{¶ 197} Then the court listed the rights appellant would waive by giving up his right to a trial: the presumption of innocence; the requirement the state prove its allegations beyond a reasonable doubt; and again, the right to an attorney. The court informed appellant if there was a trial he had the right to confront and cross examine witnesses and to subpoena witnesses on his own behalf. The court advised the appellant he had the right to testify and give his side of the story, but also he had the right to remain silent. The court told appellant the trial would be tape recorded. The court advised appellant had had a right to appeal and a right to a free transcript of the trial. The court repeatedly asked appellant if he understood, and appellant always said he did. The court described the various sentencing options and asked appellant if anyone had made threats or promises. The court asked appellant if he was admitting the charges of his own free will, and then asked his parents if they agreed with appellant's decision. Appellant and his parents all responded yes.
{¶ 198} Only after all the above did the court accept appellant's plea of true. I would find pursuant to Tovar, supra the question of whether appellant and his father understood his rights and knowingly, intelligently, and willingly waived them must be reviewed under the particular facts and circumstances of the case, and here I would find the court went to exhaustive lengths to ensure appellant and his parents understood his right to counsel as well as all the potential consequences of the proceedings. I would also find Tovar, et al, do not require a *30 detailed description of all possible defenses. I would find because the court thoroughly explained what appellant was waiving by refusing counsel and admitting the charges and consequently, appellant understood the dangers and disadvantages of self-representation.
{¶ 199} I would also find the court properly determined appellant waived his rights at the March 20, 2006 hearing on the probation violation. Appellant and his father executed another Explanation of Rights form, and signed the waiver of counsel and the acknowledgment they understood the form. Once more the court addressed appellant and explained his rights, explained the differences between the original hearing and the hearing on the probation violation, and again described the rights appellant would be giving up if he waived his right to an attorney and to an evidentiary hearing.
{¶ 200} I would overrule the first assignment of error, and find the remaining assignments of error ripe for review. HON. W. SCOTT GWIN *31
*1HON. WILLIAM B. HOFFMAN, HON. W. SCOTT GWIN, HON. PATRICIA A. DELANEY