State v. ColquittState v. Colquitt
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.
Christopher Bazeley, for appellant.
PIPER, J.
{¶1} Appellant, Pierre Colquitt, appeals from the judgment of the Warren County Court of Common Pleas. For the reasons discussed below, we affirm in part but reverse Colquitt‘s conviction and remand the case for further proceedings.
{¶2} In the early morning hours of January 2021, Colquitt knocked on the front door of Christopher Davis’ residence to ask for directions. After getting directions from Davis, Colquitt returned to his vehicle but remained in his car on Davis’ property. Davis’ residence was in an isolated rural area, and he found Colquitt‘s behavior and continued presence to be unusual. Upon retrieving a firearm for protection, Davis called the police to report the circumstances.
{¶4} Colquitt proceeded down the long driveway with Sergeant Caito in pursuit. A high-speed chase involving two additional police vehicles ensued. After Colquitt crashed his vehicle, he fled into a golf course while being chased on foot. Colquitt ignored several commands to stop throughout the foot chase, and eventually one of the police officers apprehended Colquitt by tackling him. A search incident to Colquitt‘s arrest yielded drug paraphernalia and cocaine.
{¶5} Colquitt was charged with felonious assault, failure to comply, obstruction, possession of cocaine, and possession of drug paraphernalia. Colquitt originally retained counsel but later asked his counsel to withdraw from the case. At his arraignment, Colquitt informed the court that he was representing himself. The court appointed Joseph Auciello, Esq. as Colquitt‘s standby counsel. Eventually Colquitt was found guilty on all charges except for felonious assault and was sentenced to 36 months in prison. Throughout the trial, as well as during pre- and post-trial proceedings, both Colquitt and attorney Auciello participated in various aspects of Colquitt‘s defense.
{¶6} Colquitt now appeals his conviction, raising four assignments of error for our review. We address the assignments out of order, with the first and second assignments discussed together.
Assignment of Error No. 3:
{¶8} THE TRIAL COURT ERRED WHEN IT FAILED TO PROVIDE COLQUITT WITH A COPY OF THE INDICTMENT PRIOR TO HIS ARRAIGNMENT.
{¶9} In his third assignment of error, Colquitt argues that the trial court erred in failing to provide him with a copy of his indictment prior to his arraignment pursuant to
{¶10}
{¶11} Despite the mandatory language of the statute, Ohio courts have held that a defendant must show some prejudice resulting from the arraignment in order to warrant reversal. State v. Bonnell, 61 Ohio St. 3d 179, 182 (1991) (rejecting appellant‘s proposition of law because appellant suffered no prejudice based on the trial court‘s failure to properly follow the requirements of
{¶12} Though Colquitt was never provided a copy of the indictment, the trial court did read the charges to him. Colquitt argues that because he was not provided with a copy, he was unable to prepare his case. Seeing as how Colquitt was informed of the charges at the arraignment and plead not guilty, we find that Colquitt failed to demonstrate any prejudice from not being provided with a copy of the indictment.
{¶13} In that same vein, Colquitt fails to demonstrate how the trial court‘s failure to comply with
Assignment of Error No. 4:
{¶15} THE TRIAL COURT ERRED WHEN IT FOUND THAT COLQUITT WAS FLEEING AFTER COMMITTING A FELONY UNDER
{¶16} In his fourth assignment of error, Colquitt argues that the trial court erred by finding Colquitt guilty of felonious failure to comply. Specifically, he argues that the court erred when it “inferred” that Colquitt had cocaine in his possession at the time he fled from the police.
{¶17} Failure to comply is a misdemeanor unless it can be shown that the defendant was fleeing immediately after committing a felony.
{¶18} Whether the evidence presented is legally sufficient to sustain a verdict is a question of law. State v. Erdmann, 12th Dist. Clermont Nos. CA2018-06-043 and CA2018-06-044, 2019-Ohio-261, ¶ 21. On review, an appellate court examines the evidence “to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” Id. Thus, we must ask ourselves whether, “after viewing the evidence in a
{¶19} The state presented the testimony of Sergeant Caito, who testified to the following. Sergeant Caito “received a dispatch for a suspicious person on [Davis‘] property.” Dispatch described to Sergeant Caito that “something wasn‘t right” and that the person was “possibly under the influence of drugs or alcohol.” After locating Colquitt‘s vehicle on Davis’ property, Sergeant Caito “knew something was off just by the way the vehicle was being operated and the mannerisms of the driver in the vehicle.”
{¶20} After Sergeant Caito told Colquitt to stop his vehicle, Colquitt drove into the driver side door of Sergeant Caito‘s cruiser. Sergeant Caito pursued Colquitt, who drove at speeds of 80 to 90 miles per hour while passing cars in the left lane on a double yellow line road. The chase continued on foot with two police officers in pursuit. Sergeant Caito gave orders to Colquitt to stop running, to get on the ground, and to show his hands. Sergeant Caito eventually deployed his taser, but it had no effect. Colquitt then pulled his left hand up to his face and appeared to put something in his mouth. Sergeant Caito deployed his taster once more, with no effect, and then one of the police officers tackled Colquitt to the ground. Sergeant Caito assisted the officer in securing Colquitt, and they immediately searched his person. The search revealed both a pipe and a bag of cocaine.
{¶21} Eric Wallace, one of the police officers involved, also testified. He stated that while they were in pursuit of Colquitt on foot, Colquitt reached for something in his pocket. At that point, Wallace drew his firearm and activated the light. He saw Colquitt with his hand in his pocket. Colquitt pulled something out and “it appeared to [Wallace] that [Colquitt] was smoking something.” Ryan Frasher, the other police officer, testified that while in pursuit of Colquitt on foot, Colquitt ignored commands from police to stop. At one point, Colquitt did stop running, but “he was digging around in his pockets.”
{¶22} Based on this evidence, the trial court found that Colquitt “committed the felony offense of possession of cocaine” and “that he was fleeing immediately after the commission of that felony.” The court stated that “[i]t‘s reasonable to infer, as I have done, that [Colquitt] had possession of that cocaine at the time he started this venture of trying to elude the police.” Appellant argues that there was no evidence to show where the cocaine came from, and that there was no evidence showing that Colquitt was in possession of the cocaine while he was fleeing from the police. We find no merit to this argument.
{¶23} There is no evidence to even remotely suggest that Colquitt did not possess the cocaine when the chase commenced. Circumstantial evidence “is sufficient to sustain a conviction if that evidence would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Shabazz, 146 Ohio St. 3d 404, 408 (2016). Further, it is within the province of the factfinder to draw reasonable inferences from the evidence presented. Id. Given that Sergeant Caito was in pursuit of Colquitt from the time he arrived on Davis’ property until the time Colquitt was apprehended on the golf course, it was reasonable for
Assignment of Error No. 1:
{¶25} THE TRIAL COURT ERRED BY ALLOWING COLQUITT TO REPRESENT HIMSELF WITHOUT ENSURING THAT HIS WAIVER OF COUNSEL WAS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY MADE.
Assignment of Error No. 2:
{¶27} THE TRIAL COURT ERRED IN THAT IT ALLOWED STANDBY COUNSEL AND COLQUITT TO ENGAGE IN HYBRID REPRESENTATION.
{¶28} In his first assignment of error, Colquitt argues that the trial court never ensured that he fully understood and intelligently relinquished his right to counsel. Further, Colquitt argues that the trial court never obtained a signed waiver of counsel. In his second assignment of error, Colquitt asserts that he never waived his right to self-representation and that the court erred in allowing Colquitt and attorney Auciello to engage in hybrid representation.
WAIVER OF COUNSEL
{¶29} The Sixth Amendment guarantees that a defendant in a state criminal trial has an independent constitutional right of self-representation. State v. Hundley, 162 Ohio St. 3d 509, 529 (2020). In serious offense cases, counsel shall be assigned “unless the defendant, after being fully advised of his right to assigned counsel, knowingly, intelligently, and voluntarily waives his right to counsel.”1
{¶30} In serious offense cases, the waiver must also be in writing.
{¶31} There is a strong presumption against waiver of the right to counsel, and thus Ohio courts generally assess the requirements of waiver under a
{¶32} As a threshold matter, we note that Colquitt requested to represent himself with appointed counsel assigned as standby counsel. At arraignment, the trial court informed Colquitt of the charges in the indictment. The trial court then asked Colquitt if he needed the court to appoint an attorney to represent him. Colquitt responded, “No sir. Currently I‘m representing myself. I‘ll take a court appointed to assist me on standby if that‘s okay with the court.” In response, the trial court said, “Yes, we‘ll do that.” There was no further discussion at the arraignment regarding Colquitt‘s waiver of counsel.
{¶33} At the start of Colquitt‘s pretrial hearing in October of 2021, the court addressed Colquitt by stating, “You were arraigned in this court and an attorney was appointed to represent you in this court. If you choose to represent yourself, we just have to go over several things. And standby counsel, if you do represent yourself, is a good idea, but it makes it very difficult for the attorney to do their job.” Thereafter, Colquitt stated that he “told the courts that I was representing myself [since] day one,” and that “this court was well aware that I‘m representing myself * * * when I asked for standby counsel at this indictment hearing.” The judge, however, never advised Colquitt of his right to counsel nor engaged in an inquiry to determine if Colquitt knowingly, intelligently, and voluntarily waived his right to counsel pursuant to
{¶34} It is clear from these conversations with the trial court that Colquitt unequivocally and explicitly asserted his right to self-representation, not only at the arraignment, but at the pretrial hearing. However, the trial court failed to ensure in both instances that Colquitt had a sufficient understanding of the danger and perils of self-representation. While there is not a “prescribed formula or script” to be read to a defendant who states that he wishes to proceed without counsel, the totality of the circumstances must demonstrate that a defendant is “made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.‘” State v. Carney, 12th Dist. Warren No. CA2018-08-102, 2019-Ohio-1934, ¶ 12, quoting Faretta v. California, 422 U.S. 806, 835 (1974).
{¶35} The Sixth Amendment does not require extensive warnings in every case, but still, the trial court must provide warning to the defendant about the dangers of rejecting counsel, as well as the difficulties of attempting to follow and understand procedural and evidentiary rules without the assistance of counsel. See State v. Johnson, 112 Ohio St. 3d 210, 225 (2006). The Ohio Supreme Court has specified the necessity of meaningful dialogue, emphasizing the need to tailor that dialogue to the specific individual based on case specific circumstances.
{¶36} In this instance, there is no indication that the trial court discussed the dangers and difficulties of self-representation with Colquitt at any time. A valid waiver “cannot be inferred” when the court “has not engaged in any meaningful dialogue as to the inherent risks of proceeding pro se.” State v. Studer, 11th Dist. Portage No. 2020-P-0076, 2021-Ohio-3177, ¶ 24. Further, the failure to fully advise or otherwise have a specific exchange regarding the pitfalls of self-representation is not remedied by the appointment of standby counsel. State v. Johnson, 12th Dist. Warren No. CA2015-09-086, 2016-Ohio-7266, ¶ 148 (Piper, J., concurring in judgment only), citing State v. Bizzell, 12th Dist. Clinton No. CA2006-04-015, 2007-Ohio-2160, ¶ 20.
{¶37} The trial court failed to make certain that Colquitt knowingly, intelligently, and voluntarily waived his right to counsel, and thus the court did not substantially comply with
WAIVER OF RIGHT TO SELF-REPRESENTATION
{¶38} This is not the end of our analysis, however. At the October pretrial hearing, Colquitt stated, “I want to make sure that it‘s on the record that I am representing myself and [attorney Auciello] is standby counsel. And as long as he‘s doing what I ask him to do, I‘m going to be letting him address the court.” At a later point during the hearing, the court asked Colquitt who he wanted to conduct the jury selection, and Colquitt responded, “[l]ike I said, I will allow Mr. Auciello to conduct everything as long as it‘s in accordance with what me and him discussed,” and that “[attorney Auciello] is going to be taking care of everything and I‘m going to sit here nice and quietly as long as he‘s presenting the case in the manner that I feel fit to – you know – my defense.” Colquitt continued by stating that he was “going to let [attorney] Auciello do his thing as far as what he does because he‘s professional and he knows how things is supposed to be going. And if I am found guilty, I will be able to have ineffective assistance of counsel if he did some things that was not done accordingly.”
{¶39} The state argues that through these statements, Colquitt waived his previously asserted right to self-representation. A defendant can waive their right to self-representation by “accepting defense counsel‘s assistance and allowing [counsel] to participate at trial.” State v. Beamon, 12th Dist. Butler No. CA2018-04-065, 2019-Ohio-443, ¶ 17 (finding that the appellant “abandoned any intention to represent himself when he did not pursue the issue of self-representation” after the trial court denied his request).
{¶40} Colquitt‘s statements, standing alone, may have indicated that Colquitt was vacillating on the issue. However, Colquitt reasserted his right to self-representation at the beginning of the pretrial hearing and then several more times in later proceedings. At the bench trial, he stated that attorney Auciello “was always appointed as standby” and that attorney Auciello “just found out today that he thought he was first chair.”
{¶41} A waiver of the right to self-representation may be found “if it reasonably appears to the court that defendant has abandoned his initial request to represent himself.” Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982). Colquitt repeatedly referenced self-representation at every stage of the proceedings, and he continued to actively participate in his defense. See United States v. Balogun, 5th Cir. No. 98-20855, 2000 U.S. App. LEXIS 39934, *3–4 (July 18, 2000) (finding that because Balogun never stopped representing himself at trial, he did not waive his right to self-representation by permitting standby counsel to participate at trial). Colquitt made sure to put it on the record at the pretrial hearing that he was “representing himself” and informed the court that while representing himself, he would allow attorney Auciello to represent him in certain matters as long as Colquitt approved of his course of action. Thus, it does not “reasonably appear” that Colquitt abandoned his request to represent himself. It is clear, however, that Colquitt was never made aware of the limited role of standby counsel if Colquitt was representing himself.
HYBRID REPRESENTATION
{¶42} The Ohio Supreme Court has held that the court is permitted to appoint standby counsel to aid the accused if and when the accused requests help, but “there are limits on how actively standby counsel can be involved.” State v. Hackett, 164 Ohio St. 3d 74, 77 (2020). A criminal defendant “has the right to representation by counsel or to proceed pro se with the assistance of standby counsel,” but these two rights are “independent of each other and may not be asserted simultaneously.”2 (Emphasis added.) State v. Martin, 103 Ohio St. 3d 385, 391 (2004). The circumstances and analysis presented herein are similar to those in Martin, where the Ohio Supreme Court affirmed the Eighth District‘s reversal of the defendant‘s convictions because the trial court allowed both the defendant and counsel to play active roles in Martin‘s representation.
{¶43} Because the right to proceed pro se with standby counsel and the right to be represented by counsel are
{¶44} Throughout these proceedings, Colquitt and attorney Auciello took on various aspects of Colquitt‘s defense. Colquitt advocated for a bond modification, a separate hearing to review the police dashcam footage, a second motion to dismiss, a continuance of the sentencing date, and a motion for reconsideration. Attorney Auciello argued a motion for a speedy trial violation, argued against the issuance of a warrant, made a motion for dismissal, objected to testimony during trial, and performed the direct and cross-examination of witnesses. While it is true that attorney Auciello conducted most of the trial proceedings, Colquitt appeared to remain in control and at times actively participated pro se. Conversations between the court, Colquitt, and attorney Auciello reveal that Colquitt and attorney Auciello both advocated on Colquitt‘s behalf. These conversations, however, do not clarify attorney Auciello‘s role. Throughout the proceedings, Colquitt, attorney Auciello, and the court referred to attorney Auciello as “his attorney” and “defense counsel” multiple times, but also referred to attorney Auciello as “standby counsel” numerous times.
{¶45} At trial, after Colquitt made a lengthy address to the court, the court asked Colquitt, “do you want standby counsel to make an opening statement for you?” After the state rested, Colquitt addressed the court, and the court asked Colquitt if he was “testifying” or “making a legal argument on [his] own behalf.” The court instructed Colquitt to “concur with your standby counsel if you‘d like” in deciding whether or not to testify. The court then explained to Colquitt how a legal argument would not be considered as evidence but would be considered in applying the law to the case.
{¶46} The court also described to Colquitt the purpose of closing arguments, informing Colquitt that it would “give Mr. Auciello or [Colquitt] an opportunity to make a closing as well,” later suggesting to Colquitt that “if you let [attorney Auciello] make the closing, he can do it from an attorney‘s perspective and then you can supplement it.” At the end of the trial, in a discussion of Colquitt‘s jail time credit, the court allowed Colquitt to dispute the state‘s calculated time and then stated, “I‘m going to go with 23 days. Do you have any comment on that, Mr. Auciello? I‘ve already heard Mr. Colquitt‘s.”
{¶47} We are not convinced by the state‘s argument that the trial court only “accommodated Colquitt in making a thorough record of his complaints.” The court allowed both Colquitt and attorney Auciello to substantially participate in Colquitt‘s defense, and thus it is unclear whether the court viewed Colquitt as a pro se defendant with standby counsel or a defendant who was represented by counsel.
{¶48} At some point early on in this case, the trial court should have clarified with both Colquitt and attorney Auciello what their respective roles would be. Colquitt repeatedly and continuously expressed his desire to represent himself, and the trial court should have “explicitly define[d] the role standby counsel [would] be playing in the proceedings and ensure[d] that the defendant underst[ood] this role.” Hackett at 80. This is the precise purpose of the waiver
{¶49} A trial court, in evaluating a defendant‘s request to represent himself “must ‘traverse . . . a thin line’ between improperly allowing the defendant to proceed pro se, thereby violating his right to counsel, and improperly having the defendant proceed with counsel, thereby violating his right to self-representation.” Fields v. Murray, 49 F.3d 1024, 1029 (4th Cir. 1995). Here, the trial court permitted hybrid representation which was neither a clear pro se representation with standby counsel nor a representation directed by counsel. If Colquitt was representing himself, the court improperly allowed him to do so by failing to substantially comply with
CONCLUSION
{¶50} We find Colquitt was not prejudiced by the failure to provide a copy of the indictment prior to arraignment and that there was sufficient evidence for the court to find him guilty of felonious failure to comply. However, Colquitt‘s right to self-representation was compromised by the court‘s failure to substantially comply with
{¶51} Judgment affirmed in part and reversed in part. We vacate Colquitt‘s conviction and sentence and remand for a new trial.
M. POWELL, P.J., and HENDRICKSON, J., concur.