State v. ClarkState v. Clark
Dated: September 28, 2018
CARR, Judge.
{¶1} Defendant-Appellant Thomas Clark appeals from the judgment of the Medina County Court of Common Pleas. This Court reverses.
I.
{¶2} In December 2016, Clark was charged in a 30-count indictment with multiple counts of rape and gross sexual imposition involving a minor. The indictment included a sexually violent predator specification. The matter proceeded to a change of plea hearing, at which Clark was represented by counsel. Clark pleaded guilty to 3 counts of rape and 10 counts of gross sexual imposition. The remaining 2 counts of rape, 15 counts of gross sexual imposition, and the sexually violent predator specification were dismissed. A presentence investigation report was ordered, which is not a part of this Court‘s record.
{¶3} Following Clark‘s plea, his counsel filed a motion to withdraw. The trial court granted the motion at a hearing and appointed Clark new counsel. Thereafter, Clark, despite
{¶4} At the beginning of the next hearing, the trial court noted that it had had a conversation with Clark about his right to counsel and Clark decided to proceed pro se. Clark confirmed that that was his decision. A hearing was then held on Clark‘s motion to withdraw his plea and briefs were also filed on this matter. Ultimately, the trial court denied Clark‘s motion to withdraw his plea.
{¶5} Prior to sentencing, Clark filed a motion for the appointment of counsel, which the trial court granted. The trial court sentenced Clark to a term of 25 years to life in prison on each count of rape and 36 months in prison on each count of gross sexual imposition; the terms were ordered to run concurrently to each other.
{¶6} Clark has appealed, raising four assignments of error for our review, which will be addressed out of sequence to facilitate our analysis.
II.
ASSIGNMENT OF ERROR II
THE RECORD IS DEVOID OF A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER OF RIGHT TO COUNSEL BY APPELLANT AND
{¶7} Clark argues in his second assignment of error that the trial court failed to obtain a voluntary, knowing, and intelligent waiver of counsel from Clark. In so doing, Clark points out that the record contains no written waiver as required by
{¶8} “The Sixth Amendment guarantees a defendant both the right to counsel and the right to elect self-representation instead.” (Internal quotations and citations omitted.) State v. Yeager, 9th Dist. Summit Nos. 28604, 28617, 2018-Ohio-574, ¶ 6. Accordingly, “a defendant in a state criminal trial has an independent constitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily, and knowingly and intelligently elects to do so.” State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, ¶ 28.
{¶9} “A criminal defendant must unequivocally and explicitly invoke the right to self-representation.” (Internal quotations and citations omitted.) Obermiller at ¶ 29. “[A] defendant‘s unambiguous assertion of the right to self-representation triggers a trial court‘s duty to conduct the [appropriate] inquiries to establish that the defendant is knowingly and voluntarily waiving his constitutional right to counsel.” (Citation omitted.) Id. at ¶ 30. “[T]he trial court
I‘m going to make a determination between now and then, after we have a discussion on this matter, whether or not it is proper for you to represent yourself, if it is right in these circumstances that I‘ve got to grant you your right to do so. I‘m leaning toward it. It seems to be something that you pretty clearly want to do, but I have to go through a pretty long discussion with you about that, and I want to make sure you understand all of those things before you decide that “Yes, I want to do that.” And if you do, then I‘m going to appoint [your second attorney] to sit in the back of the courtroom.
And if we even stop the proceedings at any time, if you want to consult with an attorney, I‘m going to give you that opportunity so you can. It‘s not a problem.
{¶12} The State asserts that Clark‘s pro se motion to represent himself, filed while he was represented, and prior to any hearing on the matter, constitutes a written waiver. However, because it “was filed before any of the discussions concerning the self-representation issue * * * this pro se motion clearly cannot amount to a waiver of [Clark‘s] right to counsel[.]” State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 41.
{¶13} Moreover, while the record contains ample evidence that Clark did want to represent himself, and there was evidence that, at least at the time of the plea, the charges and penalties were discussed, we cannot say that the trial court sufficiently discussed the dangers and disadvantages of self-representation with Clark on the record. See Hunter, 2012-Ohio-1121, at ¶ 15. And while Clark had already pleaded guilty, he was seeking to represent himself at a hearing on a motion to withdraw his plea. That hearing involved calling witnesses and presenting evidence. Additionally, if Clark were to succeed on his motion to withdraw, he would then be faced with representing himself at trial as well. Given the foregoing, we conclude that the record fails to demonstrate that Clark‘s waiver of counsel was knowing, voluntary, and intelligent. Further, in light of the fact that the trial court did not substantially comply with
{¶14} Clark‘s second assignment of error is sustained.
ASSIGNMENT OF ERROR I
APPELLANT DID NOT ENTER HIS GUILTY PLEA KNOWINGLY, INTELLIGENTLY, OR VOLUNTARILY BECAUSE THE TRIAL COURT FAILED TO PROPERLY INFORM HIM OF THE MAXIMUM AND CORRECT PENALTIES AS REQUIRED BY
ASSIGNMENT OF ERROR III
THE TRIAL COURT ERRED IN NOT ALLOWING APPELLANT TO WITHDRAW HIS GUILTY PLEA PRIOR TO SENTENCING.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT ERRED BY ORDERING CONVICTIONS AND A CONSECUTIVE SENTENCE FOR SEPARATE COUNTS BECAUSE THE TRIAL COURT FAILED TO MAKE PROPER DETERMINATION AS TO WHETHER THOSE OFFENSES ARE ALLIED OFFENSES PURSUANT TO
{¶15} Clark argues in his first assignment of error that the trial court failed to properly inform him of the maximum sentences at his plea hearing. Clark argues in his third assignment of error that the trial court erred in failing to allow Clark to withdraw his plea. Clark asserts in his fourth assignment of error that the trial court erred in failing to consider whether the offenses he pleaded guilty to were allied offenses.
{¶16} In light of our resolution of Clark‘s second assignment of error, we conclude that Clark‘s first assignment of error is premature and his third and fourth assignments of error are moot. Accordingly, we decline to address them.
{¶17} Clark‘s second assignment of error is sustained. Review of his first assignment of error is premature and his third and fourth assignments of error have been rendered moot by the resolution of his second assignment of error. The judgment of the Medina County Court of Common Pleas is reversed and this matter is remanded for proceedings consistent with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
TEODOSIO, J.
CONCUR.
APPEARANCES:
THOMAS REIN, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.