State v. AlexanderState v. Alexander
{¶1} Zachary R. Alexander appeals from his conviction for domestic menacing, a charge for which he was convicted in the Chillicothe Municipal Court after a jury trial. On appeal, Appellant contends that the trial court committed reversible and prejudicial error in not demonstrating substantial compliance with
{¶2} Because
FACTS
{¶3} Appellant was charged with domestic menacing, a second degree misdemeanor in violation of
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT COMMITTED REVERSIBLE AND PREJUDICIAL ERROR IN NOT DEMONSTRATING SUBSTANTIAL COMPLIANCE WITH
CRIM.R. 44(A) BY MAKING A SUFFICIENT INQUIRY TO DETERMINE WHETHER APPELLANT FULLY UNDERSTOOD AND INTELLIGENTLY RELINQUISHED HIS RIGHT TO COUNSEL IN VIOLATION OFSECTION 10, ARTICLE I OF THE OHIO CONSTITUTION ANDSIXTH ANDFOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION .”
{¶4} “The
LEGAL ANALYSIS
{¶5} In his sole assignment of error, Appellant contends that the trial court committed reversible and prejudicial error by failing to demonstrate substantial compliance with
{¶6}
“(A) Counsel in serious offenses
Where a defendant charged with a serious offense is unable to obtain counsel, counsel shall be assigned to represent him at every stage of the proceedings from his initial appearance before a court through appeal as of right, unless the defendant, after being fully advised of his right to assigned counsel, knowingly, intelligently, and voluntarily waives his right to counsel.
(B) 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 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 cases, the waiver shall be in writing.”
{¶8} As this Court noted in State v. Weddington, the Supreme Court of Ohio has stated as follows regarding the waiver of counsel:
“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 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.” Weddington, supra, at ¶ 13; quoting State v. Gibson, 45 Ohio St.2d 366, 377, 345 N.E.2d 399 (1976); quoting Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316 (1948); see also State v. Martin, supra, at ¶ 40.
{¶9} Further, as this Court noted in State v. Jones, 4th Dist. Athens No. 14CA7, 2014-Ohio-5177, ¶ 11, “[t]he assertion of the right to self-representation must be clear and unequivocal. Citing State v. Neyland at ¶ 72; citing State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 68; State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 722 N.E.2d 81, ¶ 38. Moreover, and as noted in Jones, “in order for the defendant to ‘competently and intelligently * * * choose self-representation, he should be
{¶10} Finally, and importantly, in State v. Vordenberge, supra, the First District Court of Appeals reasoned that being told of the right to counsel and waiving that right in a written form during an arraignment is “standing alone, insufficient to demonstrate a knowing, intelligent, and voluntary waiver of counsel for trial.” Vordenberge at 493. The court went on to state that “[t]he inquiry necessary to establish a constitutionally valid waiver for trial is, by its nature, more suited to the trial court, and not the arraignment proceeding[,]” due to the fact that the ” ‘cattle call’ nature of the arraignment proceedings does not lend itself to the judge or magistrate conducting an inquiry sufficient to pass constitutional muster.” Id.
{¶11} A review of the record presently before us indicates that Appellant appeared at an arraignment hearing on March 27, 2015, at which time he was orally advised of his right to counsel, informed the court that he did not want appointed counsel but “may seek outside counsel,” signed a written waiver of counsel and entered a plea of not guilty. The transcript
“COURT: This is CRB1500527, the State against Zachory Alexander, Mr. Alexander, do you have a copy of the complaint?
MR. ALEXANDER: Yes, sir. I do.
COURT: You also have a pink sheet there advising you of the rights and the pleas. Do you understand those?
MR. ALEXANDER: Yes, your Honor.
COURT: Go ahead and sign the first blank line. This is a charge of domestic menacing. It‘s a second degree misdemeanor punishable by up to ninety days in jail and a fine up to $750.00. Do you understand what you‘re charged with?
MR. ALEXANDER: Yes, your Honor.
COURT: Do you want to hire an attorney?
MR. ALEXANDER: Not court appointed, sir.
COURT: You‘re going to hire one?
MR. ALEXANDER: I may seek outside counsel.
COURT: Do you want time to do that or are you going to enter a plea today?
MR. ALEXANDER: I‘ll still enter a plea today.
COURT: Go ahead and sign the second blank line on that pink sheet then, if you‘re going to go ahead without an attorney today. June 22nd will be the last day for trial to the court.”
{¶12} The “pink sheet” referred to by the trial court and signed by Appellant is entitled “Notice to All Accused of a Criminal or Traffic Offense.” It provides as follows, with respect to the right to counsel and waiver thereof:
“If you are charged with an offense, you have the following rights:
* * *
2. You have the right to have the charge explained to you and to understand the possible penalties.
3. You have the right to be represented by a lawyer. You have the right to be granted a reasonable continuance to obtain a lawyer even though you many eventually wish to plead guilty or no contest.
4. If you are charged with an offense that carries a possible jail sentence, and if you cannot afford to hire an attorney, you have the right to have a lawyer assigned to represent you. There will
be a fee of $25 charged to anyone who either requests or obtains a public defender.”3
Appellant also signed the “Waiver of an attorney” section at the bottom of the pink sheet, which provides as follows: “I understand that I have a constitutional right to counsel (a lawyer), and to have a lawyer assigned to represent me as stated above, I voluntarily waive my right to counsel and freely state that I do not want a lawyer.”
{¶13} Although there was a purported waiver of counsel for purposes of entering a pro se plea of not guilty at the arraignment hearing, we cannot conclude that such waiver was unequivocal, as Appellant expressly stated he “may seek outside counsel.” Additionally, although the trial court did inform Appellant of his right to counsel, court-appointed counsel if needed, the charge against him and the possible penalty, there is no evidence before us that the trial court informed Appellant of the possible defenses to the charges and circumstances in mitigation thereof, or the dangers and
{¶14} This Court has previously held that “the right to retained counsel exists in all cases including ‘petty offenses.’ ” State v. Paul, 4th Dist. Athens No. CA-980, 1980 WL 350963, *4. In Paul, we further held that “[e]ven if it is concluded that a defendant fully understands his right to counsel, further inquiry, even in petty offense cases, of his desire and ability to retain counsel must be made.” Id. Moreover, we noted in Paul that “[i]f, in a ‘petty offense’ case, the defendant cannot obtain counsel and there is no waiver of counsel, the court may try the defendant without counsel, but no imprisonment may be a part of the penalty.” Id.; citing
“COURT: This is CRB1500527, the State against Zachory Alexander. He‘s here; he‘s not represented by counsel. Assistant Law Director Michele Rout is here on behalf of the State. This case scheduled [sic] for trial. Mrs. Rout, is the State ready to proceed?
MS. ROUT: We are you Honor. * * *
COURT: Mr. Alexander, are you ready to proceed with the trial?
MR. ALEXANDER: Yes, your Honor. I have three witnesses here today.
COURT: Alright.
MR. ALEXANDER: We will be dealing all the evidence, apparently? Is that correct:
COURT: I guess. Whatever is offered will be seen.
MR. ALEXANDER: Can I put some evidence in as well, your Honor?
COURT: Yeah, during your part of the trial, you will.
MR. ALEXANDER: Thank you.”
This exchange prior to trial certainly does not meet the requirements for establishing a knowing, intelligent and voluntary waiver of Appellant‘s constitutional right to counsel or for an inquiry regarding his ability to retain counsel. Here, there was no unequivocal waiver of counsel at the arraignment hearing, and there was no inquiry by the trial court as to Appellant‘s failure to retain “outside counsel” or his continuing waiver of his constitutional right to counsel for purposes of trial.
{¶16} Based on these facts, and in light of the foregoing statutory and case law, we conclude that the trial court did not demonstrate substantial compliance with
JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
It is ordered that the JUDGMENT BE AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Chillicothe Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Harsha, J.: Concurs in Judgment and Opinion.
Abele, J.: Concurs in Judgment Only.
For the Court,
BY: _____________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.