CITY OF PARMA v. GENO BATTAIA
No. 96569
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 19, 2012
2012-Ohio-173
Criminal Appeal from the Parma Municipal Court, Case No. 10 CRB 03693
BEFORE: Celebrezze, P.J., S. Gallagher, J., and E. Gallagher, J.
Justin M. Smith
24400 Highpoint Road
Suite 7
Beachwood, Ohio 44122
ATTORNEYS FOR APPELLEE
Timothy G. Dobeck
Law Director/Chief Prosecutor
City of Parma
BY: Karl R. Wetzel
Senior Assistant Prosecutor
611 Ridge Road
Parma, Ohio 44129
FRANK D. CELEBREZZE, JR., P.J.:
{¶ 1} Appellant, Geno Battaia, appeals from three misdemeanor convictions for criminal damaging and disorderly conduct. Battaia argues that his right to counsel was violated when the trial court did not properly advise him of the dangers of proceeding without an attorney when he dismissed his court appointed counsel just before triаl, and that the trial court should have continued the trial when Battaia dismissed his attorney. After a thorough review of the record and relevant law, we reverse.
I. Factual and Procedural History
{¶ 2} On August 15, 2010, appellant was aboard a “party bus” with a group of friends that ended up рarked outside the Blue Moose Saloon in Parma, Ohio. Bus passengers disembarked and continued their festivities
{¶ 3} Approximately a half hour later, the police were again dispatched to the Blue Moose when Battaia called 9-1-1 asking for paramedics. When Sgt. Hunter arrived, he saw Battaia, who appeared extremely intoxicаted, struggling with paramedics and using foul language. After talking to Officer Mack, Battaia again refused medical treatment, and Officer Mack issued him a second disorderly conduct citation. Officer Mack testified that Battaia was transportеd to a detox cell because he was such a problem.
{¶ 4} Corrections Supervisor Karen Tyrpak reported for work at 7:00 a.m. at the Parma jail, where Battaia had spent the night. She testified that
{¶ 5} Battaia was arraigned on September 1, 2010, on two counts of disorderly conduct in violation of
{¶ 6} After the opening statement by the city of Parma, Battaia requested a continuance to prepare because he had not expected to defend himself without an attorney. The triаl court refused and trial continued. At its conclusion, the trial court found Battaia guilty of two counts of disorderly conduct and one count of criminal damaging. The court immediately imposed two consecutive 30-day jail sentences in addition to a suspended jail term of 90 days. The court also imposed a $1,000 fine, costs, and two years of community control. Battaia moved for a stay of execution, but the court denied it, and Battaia was immediately taken into custody.
{¶ 7} Battaia then appealed assigning three errors.
II. Law and Analysis
A. Right to Counsel
{¶ 8} Battaia first argues that “[t]he trial court erred by failing to advise [him] of the consequences of proceeding to trial pro se and failed to comply with
{¶ 9}
Where a defendant charged with a petty offense is unable to obtain counsel, thе 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,
intelligеntly, and voluntarily waives assignment of counsel[; and this] waiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in Rule 22 * * *.
{¶ 10} This court has previously set forth the appropriate standard for reviеwing the present claim in State v. Richards, 8th Dist. No. 78457, 2001 WL 1134880, *1-2 (Sept. 20, 2001):
It is axiomatic that a criminal defendant has a right to counsel pursuant to the
Sixth andFourteenth Amendments to the United States Constitution andSection 10, Article I of the Ohio Constitution . Moreover, theSixth Amendment “* * * guarantees that a defendant * * * has an independent constitutional right to self-representation.” State v. Gibson (1976), 45 Ohio St.2d 366, [345 N.E.2d 399,] paragraph one of the syllabus, citing Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.To effect a valid waiver of the right to counsel, it is necessary that the trial court “make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right.” Id. at paragraph two of the syllabus. “Before concluding there has been a waiver, the court must be satisfied that the defendant made an intelligent and voluntary waiver with the knowledge that he will have to represent himself and that there are dangers in self-representation.” State v. Ebersole (1995), 107 Ohio App.3d 288, 293[, 668 N.E.2d 934].
{¶ 11} And in State v. Hughley, 8th Dist. Nos. 92588 and 93070, 2009-Ohio-5824, 2009 WL 3648469, *7, we held:
Although there is no prescribed colloquy in which the trial court and a pro se defendant must engage before a defendant may waive his right to counsel, the court must ensure that the defendant is voluntarily electing to proceed pro se and that the defendant is knowingly, intelligently, and voluntarily waiving the right to counsel. Hughley, citing State v. Martin, 8th Dist. No. 80198, 2003-Ohio-1499, 2003 WL 1561530, citing State v. Jackson, 145 Ohio App.3d 223, 227, 762 N.E.2d 438 (8th Dist. 2001).
{¶ 12} When determining the sufficiency of the trial court‘s advisement, we have recently reaffirmed the use of the test set forth in Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309 (1948). State v. Birinyi, 8th Dist. Nos. 95680 and 95681, 2011-Ohio-6257, 2011 WL 6151478, *3.
To be valid such waiver must be made with an apprehension of the nature of the chargеs, 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. Von Moltke, 332 U.S. at 724.
Here, the trial court‘s colloquy with Battaia is as follows:
[Battaia‘s attorney]: Your Honor, if I may advise the court of some information I just learned today, my client apparently has filed a complaint [against me].
* * *
[The Court]: You filed a complaint against your attorney?
[Battaia]: Yes, sir. Yes.
[The Court]: But you still want him to represent you?
[Battaia]: That‘s why I was hoping I would get here early enough, that I would have time before the case for this to happen. But what I‘m trying to say is I asked my attorney to perform a request for discovery, since my first meeting with him, on October 14th, 2010, for him to locate the recordings of the 9-1-1 phone calls, as well as booking room tapes of my arrest, for it can show my demeanor or whatever. But at the same time, the 9-1-1 calls are public record, and I was able to get those, but they weren‘t given through requests for discovery — which they should be, by law. And I have those laws with me, if the Court will be patient.
And I have not had time to think about it, and I have just come across this in the past couple weeks. And I have been asking and asking my attorney and I trusted in him to do these things for me. And, your Honor, I‘m not sure if I should allow my public defender, Jim, to work on my behalf, for I believe there аre some instances where he didn‘t work on my behalf. And that‘s some of what I had to say, but I have all the facts to back it up.
* * *
[The Court]: You need to make a decision, if you want [your attorney] to represent you or not.
[Battaia]: May I ask, if [my attоrney] doesn‘t represent me, how am I supposed to — I don‘t understand.
[The Court]: Your trial is today. It‘s here and now. You were granted a court appointed attorney. You made the decision, you‘re an adult. You made the decision to filе a complaint against your attorney, and to record conversations and alienate your attorney — if he‘s in fact alienated. I don‘t know, I would be if I was your attorney — you made the decision.
Now, being over 18 you‘re going to make а decision. The person that you, it seems, intentionally tried to alienate, do you want him to represent you? Or do you want to dismiss him, and represent yourself at this time?
* * *
[Battaia]: I would not like [my attorney] to represent me any longer.
[The Court]: My bailiff, Cindy, is going to give you a waiver of counsel. Like I said, you were granted an attorney, appointed counsel, you had an opportunity, and now you have released your counsel.
{¶ 13} Battaia then signed and dated a waiver of counsel, and the trial court stated, “All right. You now represent yourself. This is a knowing, voluntary waiver of counsel. We‘re ready to proceed.”
{¶ 14} The record is devoid of any meaningful colloquy discussing the rights given up by waiving counsel. A talismanic statement by the court that the waiver is valid does not make it so. There is no discussion of the consequences of waiving counsel, the charges against him, or possible defenses. It was not Battaia‘s intention, prior to the day of trial, to waive that right. The trial сourt gave Battaia the ultimatum of going to trial with an attorney he had no faith in and had undermined his relationship with1 or representing himself. There is nothing in the record that his decision to forego representation was knowing or voluntary. Gibson, 45 Ohio St.2d 366, at parаgraph two of the syllabus (“In order 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.“). See also Richards, 2001 WL 1134880.
{¶ 15} Therefore, Battaia‘s first assignment of error is sustained. This holding renders Battaia‘s other two assigned errors moot, and they will not be addressed.2
III. Conclusion
{¶ 16} The trial court erred when it accepted Battaia‘s waiver of counsel without any meaningful colloquy discussing that decision and ensuring that the waviеr was made knowingly, intelligently, and voluntarily. Therefore, Battaia‘s convictions must be reversed and a new trial ordered.
{¶ 17} This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered thаt appellant recover of said appellee 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 Parma Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR