STATE OF OHIO, Plaintiff-Appellant v. RICHARD D. GROSS, Defendant-Appellee
C.A. CASE NO. 24666
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
December 16, 2011
[Cite as State v. Gross, 2011-Ohio-6490.]
T.C. NO. 11CR266 (Criminal appeal from Common Pleas Court)
ADELINA E. HAMILTON, Atty. Reg. No. 0078595, Assistant Public Defender, 117 S. Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellee
O P I N I O N
DONOVAN, J.
{¶ 1} This matter is before the Court on the Notice of Appeal of the State of Ohio, filed June 1, 2011. On February 15, 2011, Richard D. Gross was indicted for one count of operating a motor vehicle while under the influence (“OVI“), having previously been
{¶ 2} The court held an evidentiary hearing on April 11, 2011, and it directed the parties to brief the issue thеreafter. After the submission of briefs, on May 25, 2011, the trial court issued a “Decision and Entry Sustaining ‘Motion of Defendant to Strike Prior Conviction Element.‘” The court thoroughly reviewed the transcript of Gross’ plea hearing from the 2008 conviction, and it determined thаt the State did not establish that Gross knowingly, intelligently and voluntarily waived his right to counsel. According to the trial court, the State failed “to overcome the presumption against a valid waiver of the fundamental constitutional right to counsel.” The сourt struck Gross’ 2008 conviction from the indictment.
{¶ 3} The State asserts two assignments of error. The State‘s first assigned error is as follows:
{¶ 4} “THE TRIAL COURT ERRED WHEN IT FOUND THAT GROSS DID NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVE HIS RIGHT TO COUNSEL.”
{¶ 5} According to the State, Gross’ 2008 conviction is a petty offense, and the Bellefontaine Municipal Court‘s colloquy complied with
{¶ 6} The record reveals the following exchange at the plea hearing at issue:
{¶ 7} “THE COURT: Ladies and gentlemen, when your name is called, I want you to step up to the lectern in front of me and the charges that have been filed against you in this court will be read to you. You will then be asked to enter a plea to those charges. Pleas available to you when your name is called are the pleas of guilty, not guilty, or no contest.
{¶ 8} “A plea of guilty or not guilty is self-explаnatory. A plea of no contest, on the other hand, is a plea by which you indicate to me that you do not contest the officer‘s written statement of facts which has been attached to your citation. After I hear the officer‘s stаtement of facts on a plea of no contest, I will enter a finding of either guilty or not guilty immediately from the bench. Since I only hear one side of a case on a plea of no contest, however, it generally results in a finding of guilty and should be considered by you as an alternative to the guilty plea and not an alternative to a not guilty plea. Ms. Carmean, will you call the first case?
{¶ 9} “(Arraignments held of other defendants.)
{¶ 10} “THEREUPON, the following explanation was presented in open court:
{¶ 11} “THE COURT: And do you understand your legal rights? Lеt me explain them to you. This also applies to anyone else who is here for an arraignment this morning whose name I have not yet called, so pay careful attention to the explanation of legal rights that I make to Mr. Bussinger (phonetic).
{¶ 12} “The first two charges that the clerk read are driving under suspension, are misdemeanors of the first degree, which means they carry with them a potential of a jail
{¶ 13} “If you need additional time to speak to an attorney before you enter a plea today, then you have a right to a continuance of this hearing in order to talk to your attorney.
{¶ 14} “Finally, if you wish to be represented by an attorney but you don‘t have the funds to hire your own attorney, you have a right to have an attorney appointed to represent you by the court if the court is satisfied that you are indigent. Do you understand those rights [?]
{¶ 15} “(Further arraignments held of other defendants.)
{¶ 16} “THE CLERK: Richard D. Gross. Mr. Gross, you are charged with operating a motor vehicle while under the influence of alcohol or drugs of abuse, you‘re charged with operating a motor vehicle with fictitious plates, and yоu‘re further charged with a failure to yield violation.
{¶ 17} “THE COURT: Sir, do you understand what you‘re been charged with?
{¶ 18} “DEFENDANT GROSS: Yes.
{¶ 19} “THE COURT: And do you understand your legal rights as I explained them earlier?
{¶ 20} “DEFENDANT GROSS: Yes.
{¶ 21} “THE COURT: Are you prepared to enter a plea at this time?
{¶ 22} “DEFENDANT GROSS: Yes, sir.
{¶ 23} “THE COURT: What plea?
{¶ 24} “DEFENDANT GROSS: No contest.”
{¶ 26} As Gross asserts, “[a]n uncounseled prior conviсtion, one where the defendant was not represented by counsel, cannot be used to enhance a subsequent offense if that prior conviction resulted in a sentence of confinement or a suspended sentence. (Citatiоns omitted).” State v. Albert, Montgomery App. No. 23148, 2010-Ohio-110, ¶ 6.
{¶ 27} “Courts are to indulge every reasonable presumption against the waiver of a fundamental constitutional right, including the right to counsel. (Citation omitted). The waiver must affirmatively appear in the record, and the State bears the burden of overcoming presumptions against a valid waiver.” Id., ¶ 7.
{¶ 28} “For a waiver of the right to counsel to pass constitutional muster, it must be knowing, intelligent and voluntary.
{¶ 29} “‘At the core of
{¶ 30} “In order to ensure that a waiver of counsel is made knowingly, intelligently and voluntarily, the trial court must make sufficient inquiry to determine whether a defendant fully understands and intelligently relinquishes that right. (Citations omitted).” Albert, ¶ 10.
{¶ 31} ““The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused - whose life or liberty is at stake - is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.’ [Johnson v. Zerbst (1938), 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461.] 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 circumstаnces 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 that right does not automatically
{¶ 32} “Absent a dialogue with Defendant that complies with the Von Moltke requirements, a written waiver is not sufficient to establish a valid waiver of the right to counsel. (Citations omitted.)” Albert, ¶ 45. This Court has determined that a “sketchy or minimal inquiry touching upon only some of the factors enumerated in Von Moltke * * * will not adequately establish an effective waiver of counsel.” State v. Gatewood, Clark App. No. 2008 CA 64, 2009-Ohio-5610, ¶ 43.
{¶ 33} Regarding the requirement that the trial court advise the defendant of the possible defenses and circumstances in mitigation, this Court in Gatewood cited State v. Pillow, Greene App. No. 2007 CA 102, 2008-Ohio-5902, as “‘a textbook example of the proper way to handle a defendant‘s decision to proceed without the benefit of counsel.‘” Gatewood, ¶ 44. Therein, “the trial court gave examples of the types of defenses that might be present: the state failed to establish one of the elements of an offense; the defendant was not the person who committed the crime; or there was some sort of self-defense or failure to have the mеntal capacity to commit the offenses. Id. at ¶ 37. These examples of possible
{¶ 34} As the trial court correctly determined, when Gross entered his no contest plea in the course of his 2008 conviction, the municipal court did not advise Gross of the range of possible punishments, it did not advise him of possible defenses and circumstances in mitigation, and it did not advise him of the dangers and disadvantages of self-representation. The written waiver of counsel executed by Gross, as the trial court further noted, did not set forth the range of allowable punishments, delineatе any defenses, or address the dangers of self-representation.
{¶ 35} We agree with the trial court that the State did not overcome the strong presumption against the valid waiver of the fundamental constitutional right to counsel. Since Gross did not knowingly, intelligently and voluntarily waive his right to counsel, the State‘s first assigned error is overruled.
{¶ 36} The State‘s second assigned error is as follows:
{¶ 37} “THE TRIAL COURT‘S CONVICTION IS VALID REGARDLESS OF THE COURT‘S FINDING ON THE ISSUE OF WAIVER.”
{¶ 38} According to the State, even in the absence of a knowing, intelligent and voluntary waiver of counsel, the 2008 conviction is valid “and should be admissible evidence of a prior conviction.” The State directs our attention in part to State v. Hill, Champaign App. No. 2008 CA 9, 2008-Ohio-6040. Therein, this Court determined, pursuant to
{¶ 39} The validity of the 2008 conviction is not at issue, and we agree with Gross, as quoted in the analysis of the State‘s first assigned error, that “[a]n uncounseled prior conviction, one where the defendant was not represented by сounsel, cannot be used to enhance a subsequent offense if that prior conviction resulted in a sentence of confinement or a suspended sentence. (Citations omitted).” Albert, ¶ 6.
{¶ 40} There being no merit to the State‘s second assigned error, it is overruled, and the judgment of the trial court is affirmed.
GRADY, P.J., concurs.
HALL, J., concurring:
{¶ 41} I agree that the defendant‘s prior conviction, on this record, did not include a sufficient waiver of counsel to allow the prior uncounseled conviction to be used as a prеdicate offense to enhance the current charge. I write to point out that consideration of what constitutes a waiver of counsel for a petty offense in a municipal court is not identical to the waivers for the felоny offenses in the Von Moltke, Albert, Gatewood, and Pillow cases cited. If a “judge must investigate as long and as thoroughly as the circumstances of the case before him demand” Albert, ¶ 12, the fact that the case is a petty offense in municipal court is one of the factors to evaluate. I concur.
Timothy J. Cole
Adelina E. Hamilton
Hon. Dennis J. Langer