CITY OF PARMA v. RODNEY L. WISEMAN
No. 102404
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 3, 2015
[Cite as Parma v. Wiseman, 2015-Ohio-4983.]
Criminal Appeal from the Parma Municipal Court, Case No. 14CRB04215
BEFORE: Blackmon, J., Keough, P.J., and Laster Mays, J.
RELEASED AND JOURNALIZED: December 3, 2015
John W. Gold
101 W. Water Street
Sandusky, Ohio 44870
ATTORNEYS FOR APPELLEE
Timothy G. Dobeck
Law Director/Chief Prosecutor
City of Parma
6611 Ridge Road
Parma, Ohio 44129
By: Richard A. Neff
Assistant Prosecutor
City of Parma
5555 Powers Boulevard
Parma, Ohio 44129
{¶1} Appellant Rodney L. Wiseman (“Wisеman“) appeals his conviction for theft and assigns the following assigned error for our review:
Appellant was denied his right to counsel when the trial court proceeded to a bench trial without establishing that appellant effeсtively waived his right to counsel.
{¶2} Having reviewed the record and pertinent law, we vacate that portion of Wiseman‘s sentence that imposed jail time and affirm Wiseman‘s conviction as modified. The apposite facts follow.
{¶3} On August 25, 2014, thе city of Parma charged Wiseman with one count of theft, a first-degree misdemeanor. On September 10, 2014, Wiseman was arrаigned. Because there were so many defendants in court that day, the trial court stated that in order to save time, thе court would explain to them as a group the various pleas they could enter and constitutional rights they would be waiving. The trial court stated as follows:
Good afternoon ladies and gentlemen. This is what they call an arraignment or initial аppearance to tell you what you‘re charged with, which you already know, explain your constitutional rights to you and your plea options and then of course take a plea from you. As far as your constitutional rights and your plea options, we kind of try to do that as a group so that you don‘t have to hear it one at a time when you come up here over and over again. You‘ll get sick of hearing the same thing over 50 times so we‘ll dispense with that.
Tr. 2.
{¶4} In explaining the defendants’ right to counsel, the court told the group:
You have the right to counsel and you have the right in many cases to have counsel appointed for you if you qualify financially and cannot afford to obtain your own.
Tr. 2-3.
{¶5} After exрlaining their right to a jury trial, the court stated as follows:
Your right to a jury trial, your right to a public defender does have an exception. If the only thing you are charged with is classified as what‘s known as a minor misdemeanor, and what that is is an offense that carries no potential of any kind of jail time, the court couldn‘t do it if they wanted to, number one, number two carries а fine of no more that $150 plus any applicable court costs. If that is all you‘re charged with you do not have the right to a public defender, you obviously may hire your own attorney if you wish * * *
Tr. 3.
{¶6} When it came Wiseman‘s turn to enter a plea, he pled not guilty. No dialogue appears in the record between the court and Wiseman regarding waiver of counsеl. Instead, two months later, Wiseman appeared and represented himself in a bench trial.
{¶7} The trial court found Wisemаn guilty of theft and sentenced him to 90 days in jail and imposed a $250 fine. The trial court suspended 87 of the days in jail and suspended $150 оf the fine and placed Wiseman on probation for 18 months.
Waiver of Counsel
{¶8} In his sole assigned error, Wiseman argues the trial court errеd by proceeding to a bench trial without establishing that Wiseman waived his right to counsel.
{¶9} A “petty offense” is “a misdemeanоr other than [a] serious offense.”
{¶10} A defendant is entitled to counsel in petty offense cases unless he “knowingly, intеlligently, and voluntarily waives assignment of counsel.”
Counsel in petty offenses. Where a defendant charged with a petty offense is unable to obtain counsel, the court may assign counsel to represent him. When a defendant chargеd with a petty offense is unable to obtain counsel, no sentence of confinement may be imposed upon him, unlеss after being fully advised by the court, he knowingly, intelligently, and voluntarily waives assignment of counsel.
{¶11} If a defendant in a petty offense case chooses to waive counsel, the waiver must occur in open court and be recorded. Sеe
{¶13} The court‘s failure to obtain a valid waiver of counsel in a petty offense case рrevents the trial court from imposing a sentence on the defendant. It does not vacate the entire conviction. Lyndhurst v. Di Fiore, 8th Dist. Cuyahoga No. 93270, 2010-Ohio-1578; State v. Haag, 49 Ohio App.2d 268, 271, 360 N.E.2d 756 (9th Dist.1976); State v. Knight, 9th Dist. Lorain No. 11CA010034, 2012-Ohio-5816; State v. Dowey, 9th Dist. Summit No. 25963, 2012-Ohio-4915; State v. Boughner, 11th Dist. Geauga No. 98-G-2161, 1999 Ohio App. LEXIS 6116 (Dec. 17, 1999); Oakwood v. Shackelford, 8th Dist. Cuyahoga No. 50062, 1986 Ohio App. LEXIS 5486 (Jan. 30, 1986). Accordingly, Wiseman‘s assigned error is sustained. However, in accordance with the above precedence, we can only modify Wiseman‘s sentence by vacаting the part imposing jail time.
{¶14} Judgment affirmed as modified.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, JUDGE
KATHLEEN ANN KEOUGH, P.J., and ANITA LASTER MAYS, J., CONCUR