STATE OF OHIO, Plaintiff-Appellee, - vs - JOHN C. DINKA, Defendant-Appellant.
CASE NO. CA2013-03-021
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
10/21/2013
[Cite as State v. Dinka, 2013-Ohio-4646.]
CRIMINAL APPEAL FROM WARREN COUNTY COURT Case No. 2013CRB00032
Marshall G. Lachman, 75 North Pioneer Boulevard, Springboro, Ohio 45066, for defendant-appellant
O P I N I O N
M. POWELL, J.
{¶ 1} Defendant-appellant, John C. Dinka, appeals his conviction in the Warren County Court for domestic violence. For the reasons set forth below, we reverse the judgment of the trial court and remand the matter for further proceedings consistent with this Opinion.
{¶ 2} On January 14, 2013, Dinka was arrested and charged with one count of
{¶ 3} The trial court‘s file contains a document entitled “Docket/Judgment Entry” dated January 14, 2013 and journalized on January 15, 2013 indicating Dinka entered a not guilty plea to fourth-degree misdemeanor domestic violence. This “Docket/Judgment Entry” does not reflect the nature of the hearing or appearances by Dinka, an attorney on Dinka‘s behalf or any other person. In fact, the record does not disclose that Dinka was ever arraigned in accordance with
{¶ 4} On January 17, 2013, Dinka appeared for a preliminary hearing represented by an attorney. The record is unclear whether Dinka‘s attorney was appointed by the court or retained by Dinka. Although no such charge appears of record, the matter was apparently scheduled for a preliminary hearing upon a felony charge of having weapons while under disability in violation of
{¶ 6} On February 12, 2013, Dinka appeared for trial with his public defender and the following exchange took place between the trial court and Dinka:
COURT: All right, we set it for a trial today, probably with a public defender, not knowing whether or not you were going to be able to retain your own attorney. Have you made arrangements for the public defender to fill out the paperwork to see if you qualify?
DINKA: Yeah, but I haven‘t filled out the paperwork. Under the circumstances I think I‘m going to try to obtain an attorney.
COURT: Today‘s the trial.
DINKA: Well, I‘ve tried to contact the attorney, haven‘t spoken to [my public defender] about the trial at all and we‘re not prepared. I‘ve got stuff I need subpoenaed, people I need subpoenaed.
COURT: Do you have the financial affidavit filled out?
DINKA: No, I don‘t, it‘s sitting in the chair there.
COURT: All right, so do you want the public defender to represent you or not? Today‘s the trial Mr. Dinka.
DINKA: I‘d like to get a continuance.
* * * COURT: But you want a continuance so you can hire an attorney?
DINKA: Correct.
COURT: But you haven‘t hired one?
DINKA: I‘m trying to.
* * *
COURT: Mr. Dinka, this is it, this is the trial, so it‘s going to be this morning with you representing yourself or you can have the public defender, assuming that you do qualify. * * * Did you know today was the trial?
DINKA: Yeah, but I tried * * * to contact the attorney so I can let her know I need a subpoena and I haven‘t received anything. And when I called I was told that the public defender don‘t (sic) talk to you until the day of trial, and how can you get a case together if you can‘t speak to your attorney?
* * *
I‘m just not happy with the job my public defender was doing. I tried to speak to her and they (sic) could speak to you before the trial and find out what‘s going on.
COURT: All right. So [public defender], any inclination that you had or might have had on representing Mr. Dinka, I‘m being told he doesn‘t want public defender service so that will be granted. So your name will be removed from the docket. I‘m going to reset this for two weeks from today, that‘s the trial date. It will not be continued. You file a jury demand, that‘s different, obviously it gets reset but the trial is in two weeks. You find an attorney to represent you in two weeks, that‘s available in two weeks, you understand that?
DINKA: Yeah.
{¶ 7} On February 26, 2013, Dinka appeared for trial without counsel. Dinka explained he had contacted numerous attorneys but was unable to afford one. The following conversation then occurred between the trial court and Dinka:
COURT: So are you ready to proceed without an attorney then?
DINKA: Not really. I have PTSD, which I‘m not able to, you know, under stressful situations my mind just kind of quits.1
COURT: All right.
DINKA: So I‘m not really able to represent myself.
COURT: Well, today we‘re set for the trial and you made no arrangements, you did not want the public defender to represent you so she was discharged from her duty. I gave you a two week continuance, plenty enough time to secure counsel. The fact that you‘re here without counsel the court‘s going to consider that to be a waiver of counsel so we‘re going to proceed this afternoon.
The trial court then proceeded with Dinka‘s bench trial with Dinka representing himself. At multiple times during the trial, Dinka stated he was having difficulty representing himself, as his brain was “quitting” due to his “PTSD.” At the conclusion of the evidence, the trial court found Dinka guilty of fourth-degree misdemeanor domestic violence. Dinka was sentenced to a 23-day jail term with credit for time served and one year of community control supervision. Dinka was also ordered to undergo drug, alcohol, and mental health assessments, pay a fine, and forfeit the shotgun.
{¶ 8} From his conviction, Dinka appeals, raising two assignments of error:
{¶ 9} Assignment of Error No. 1:
{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF DINKA, AND DENIED DINKA HIS RIGHT TO COUNSEL, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE [I] OF THE OHIO CONSTITUTION.
{¶ 11} Assignment of Error No. 2:
{¶ 12} THE TRIAL COURT‘S VERDICT OF GUILTY ON THE CHARGE OF
{¶ 13} In his first assignment of error, Dinka contends the trial court erred by discharging Dinka‘s public defender and requiring him to proceed pro se in violation of his constitutional rights. Specifically, Dinka asserts his failure to obtain counsel after a two-week continuance of his trial date was not a knowing, intelligent, and voluntary waiver of his right to counsel.
{¶ 14} The
{¶ 15} “[T]o establish an effective waiver of right to counsel, the trial court must make sufficient inquiry to determine whether [the] defendant fully understands and intelligently relinquishes that right.” Gibson at paragraph two of the syllabus; State v. Overholt, 77 Ohio App.3d 111, 116-17 (3d Dist.1991). In order for the defendant to “competently and
{¶ 16} Generally, Ohio courts look to see whether, under the totality of the circumstances, the defendant‘s waiver of his right to counsel was voluntarily, knowingly, and intelligently given. State v. Thompson, 180 Ohio App.3d 714, 2009-Ohio-185, ¶ 8 (3d Dist.). “To discharge this duty 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.” Gibson at 377. For a waiver of counsel 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 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.” Fields at *2-3, citing Overholt at 117 and Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 323 (1948).
{¶ 17} Pursuant to
{¶ 18} Waiver of counsel shall be made in open court, and the advice of the trial court
{¶ 19} In the present case, our review of the record reveals Dinka was not fully advised by the trial court of the nature of the charges against him, the statutory offenses included with it, the range of allowable punishments thereunder, the possible defenses to the charge, the circumstances in mitigation of the charge, and all other factors essential to a broad understanding of the whole matter. The record fails to demonstrate Dinka was properly arraigned and provided the advisements required by
The degree of the offense with which Dinka was charged was in flux (i.e., felony offense, first-degree misdemeanor, second-degree misdemeanor, or fourth-degree misdemeanor)
{¶ 20} Based upon our thorough review of the record, we find the trial court committed prejudicial error by imposing a term of confinement upon Dinka when he was not represented by counsel and where he did not knowingly, intelligently, and voluntarily waive the assignment of counsel. We further find, due to the confusion permeating this entire proceeding, Dinka‘s conduct did not constitute an implied waiver of his right to counsel. In so holding, we find this case analogous to our decisions in State v. Fields, 1998 WL 372367, and State v. Constable, 2005-Ohio-1239.
{¶ 21} In Fields at *1, the defendant was found guilty of domestic violence and driving under the influence of alcohol after a bench trial wherein he was required to represent himself. Fields at *1. We found: (1) a valid waiver of counsel by the defendant did not exist as required by
{¶ 22} In Constable, the defendant was found guilty of menacing, a fourth-degree misdemeanor, after a jury trial wherein he was required to represent himself. Constable at ¶ 1. At arraignment, the defendant was appointed an attorney due to his indigent status. Id. at
{¶ 23} After the continuance, the defendant appeared before the trial court without an attorney, explaining he had attempted to retain counsel but was unable to afford representation. Id. at ¶ 5. The court informed the defendant that, because he had fired his court-appointed attorney and had not secured new representation, the defendant was “on his own.” Id. The case proceeded to trial by jury with the defendant representing himself. Id. He was found guilty of menacing and appealed his conviction, arguing that he was deprived of his right to counsel under the Sixth Amendment and that he did not voluntarily waive this right. Id. at ¶ 6-12.
{¶ 24} We found the defendant had not waived his right to counsel and, therefore, the trial court erred in requiring the defendant to proceed to trial without representation. Id. at ¶ 15. Specifically, we determined that, while the defendant was not entitled to an attorney of his choosing, he was nevertheless entitled to representation and the trial court “was required to ensure that, absent a valid waiver of counsel, [the defendant] had an attorney to represent him.” (Emphasis sic.) Id. at ¶ 15, 29, citing State v. Marinchek, 9 Ohio App.3d 22, 23 (9th Dist.1983). As a “meaningful exchange” did not take place between the defendant and the
{¶ 25} We find the logic set forth in Fields and Constable controlling in this case. Dinka was never fully advised by the trial court of the dangers and disadvantages of self-representation. Furthermore, Dinka‘s indigency status was never determined by the trial court.4 Finally, the trial court construed Dinka‘s conduct as a waiver of his right to counsel in contravention of
{¶ 26} We distinguish our holding in this case with the cases relied upon by the state. In Westfall, we found the trial court did not abuse its discretion in denying the defendant‘s request for a continuance in order to obtain an attorney and inferring the defendant waived her right to counsel because her actions could “be reasonably perceived as taking advantage of the trial court by claiming [his or her] right to counsel in order to frustrate or delay the judicial process.” Id. at *3, quoting State v. Hook, 33 Ohio App.3d 101, 104 (10th Dist.1986). The defendant was given almost three weeks before her trial date to find an attorney, was not indigent, and had previously hired a law firm to represent her in the matter. In the
{¶ 27} In City of Lebanon/State v. Dennis, 12th Dist. Warren No. CA93-08-063, 1994 WL 160172 (May 2, 1994), we found the trial court did not err in concluding that the defendant had impliedly waived the right to counsel where the defendant “repeatedly refuse[d] to take effective steps to retain counsel.” Id. at *2. The trial court had advised the defendant of his right to counsel, inquired as to whether the defendant was indigent and in need of court-appointed counsel, repeatedly informed the defendant of the dangers and disadvantages of self-representation, and granted the defendant two continuances for the purposes of retaining counsel. Id. In the case at bar, the trial court never advised Dinka of his right to counsel on the record, never inquired into whether Dinka was indigent, and never informed Dinka of the dangers and disadvantages of self-representation.
{¶ 28} Accordingly, we sustain Dinka‘s first assignment of error. Dinka‘s remaining assignment of error is dismissed as moot pursuant to
RINGLAND, P.J., and PIPER, J., concur.
Notes
{b} DINKA: I‘m not even sure exactly what I‘m being, what I‘m being charged with, I don‘t know. * * * I mean, first the charge was aggravated menacing then it was an M-4 domestic violence and then it was an M-1, then it was back to an M-4 again and then back to an M-1. Now I‘m told it was an M-2. I‘m not even sure what I‘m being charged with.
{c} STATE: Your Honor, we‘re going forward on the M-4.
{d} DINKA: So now it‘s an M-4 sir?
{e} STATE: That‘s correct.
{f} COURT: That was the original charge.
{g} DINKA: Yeah. Well, the public defender just told me five minutes ago it was an M-2.
{h} COURT: That‘s because I was going to grant that motion.