State v. LucasState v. Lucas
Steven H. Eckstein, Washington Court House, Ohio, for appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay S. Willis, Assistant Scioto County Prosecutor, Portsmouth, Ohio, for appellee.
Wilkin, J.
{¶1} This is an appeal from a Scioto County Court of Common Pleas judgment entry that convicted Appellant Angel Marie Lucas (“Lucas“) of trafficking in cocaine, a first-degree felony, and possession of criminal tools, a fifth-degree felony. Lucas, who filed a motion to proceed pro se and formally waived counsel in writing and in open court, maintains on appeal that she was denied effective hybrid representation and/or standby counsel, which she claims is guaranteed under the
{¶2} On December 5, 2022 a grand jury returned an indictment charging Lucas with four counts arising out of an October 23, 2022 traffic stop: Count 1, trafficking in cocaine, a first-degree felony in violation of
{¶3} On December 6, 2022, the court appointed counsel for Lucas. That same day, an affidavit of indigency, signed by Lucas, was filed with the court. Despite the court appointing defense counsel, on December 9, 2022, Lucas filed a motion asking to proceed pro se, at least until she could find other attorneys to help with her defense. Her motion stated, in pertinent part:
I do not feel comfortable with this jurisdictions counsel(s) for my defense. I will not be using [the court-appointed attorney] for counsel. I will be coming pro se in your court for now. I also will be reaching out to other attorney(s) to help with my defense. For now I will need a copy of your court rules, guidelines, and procedures.
(Brackets added.)
{¶4} The court held a pretrial on December 12, 2022. After extensive discussions with the court, Lucas made clear her desire to proceed pro se and the court ensured she had certain accommodations for proceeding pro se (like providing her with access to discovery, copies of statutes and rules). In addition, the court also provided some guidance as to how and where to file certain requests.
{¶6} In addition to the comprehensive hearing on Lucas’ motion to proceed pro se, on February 2, 2023 the trial court again inquired if Lucas wished to proceed pro se: “Ms. Lucas, are you still inclined to represent yourself at the trial?” To which Lucas responded, “Surely am.” Then again, right before commencing voir dire on the first day of trial, the trial court asked Lucas about her wishes regarding counsel, and she confirmed that she wanted to proceed pro se.
{¶8} Throughout the course of proceedings, Lucas filed motions and requests with the court, including numerous discovery requests, subpoena requests, a jury demand, a motion for bond reduction, motions for transcripts, and so forth. On December 19, 2022, Lucas also filed a memorandum in support of constitutions of 1787, which the court deemed to be a motion to suppress. In the document, Lucas claimed that the trooper from the traffic stop had racially profiled her and illegally followed her vehicle for more than five miles with his high beams on, among other things.
{¶9} The court held a hearing on Lucas’ motion regarding suppression issues on January 3, 2023. At the hearing, the State called the two troopers from the Ohio State Highway Patrol who were involved in that stop to testify. In addition, the State introduced the cruiser cam video and both troopers’ body cams.
{¶10} Trooper Nick Lewis (“Lewis“) testified that on October 23, 2022 at approximately 10:20 p.m., he had been sitting stationary on U.S. Route 23 near milepost 12, just north of the Portsmouth Bypass in Scioto County. At the time, there was not a lot of traffic. At some point he noticed a rental car with Virginia plates pass and travel onto Lucasville-Minford Road, a road travelers often take when they miss the bypass. Lewis noticed that the vehicle had out-of-state plates and appeared to be a
{¶11} Further along on Lucasville-Minford Road, past Cook Road, a vehicle was stopped on the right side of the road at the edge of a driveway. When passing that vehicle, the rental car crossed the double-yellow line by a half tire-width, driving into the other lane. Lewis had no trouble himself proceeding up the road without traveling over the line and into the other lane. The rental car again crossed the double-yellow line by a whole tire-width close to Candy Run.
{¶12} Although the driver of the rental car had committed these three traffic violations, Lucas did not initiate a traffic stop on Lucas-Minford Road because there was no place to safely pull the car over without blocking one lane of traffic. Lewis had planned to stop the rental car on the pull-off right at State Route 823, but the rental car turned onto Glendale Road. At that time, Lewis received from dispatch the make, model and year of the vehicle and confirmed that the car was a rental.
{¶13} When the rental car approached the stop sign at Glendale Road, the driver failed to activate a turn signal to turn right or left onto State Route 139. At that point, Lewis activated his overhead lights and pulled the rental car over. The driver, later determined to be Lucas, pulled over approximately thirty seconds after Lewis activated the cruiser‘s overhead lights.
{¶15} At this point, Lucas said she had a Florida driver‘s license, did not produce it, but instead gave Lewis a Michigan‘s driver‘s license, and said she was coming from Columbus. After noting these inconsistencies, Lewis asked Lucas to exit the vehicle.
{¶16} Once Lucas stepped out of the vehicle, Lewis could smell the odor of marijuana on her person. Lewis asked Lucas whether she was smoking marijuana or had someone around her been smoking. Lucas said she was around people who were smoking and that it was probably coming off her jacket. Lewis conducted a pat-down of Lucas for officer safety purposes. Lucas complied with his instructions.
{¶17} Trooper Matt Lloyd (“Lloyd“), who was close by when Lewis initiated the stop, arrived at the scene to assist. Lloyd, who is also trained and has experience in the detection of marijuana, approached the rental vehicle and noticed the “pretty strong” smell of raw marijuana.
{¶18} Lewis decided to search the rental vehicle because of the smell of raw marijuana coming from the vehicle as well as on Lucas’ person. Lewis searched the passenger side, and Lloyd searched the driver‘s side. Lewis exclaimed, “Oh, there it is”
{¶19} Later, the suspected cocaine was sent to the Ohio State Highway Patrol Laboratory and determined to be 56.2096 grams of cocaine.
{¶20} The court issued findings of fact after hearing the evidence, both on the record in open court and by judgment entry on January 24, 2023. The trial court held the evidence was uncontroverted that (1) Lewis observed several traffic violations, including Lucas traveling left of center on two occasions and her vehicle being paced at between 52-53 in a 45-m.p.h. zone. (The trial court noted that these initial violations were not on the video because of the way in which the video recording system works; however, the trial court observed the speed from the video and noted that the video shows Lewis mentioning the lane infractions when Lucas was pulled over); (2) Lewis smelled the odor of raw marijuana coming from both the vehicle and person, photos showed raw marijuana on the passenger‘s side floorboard and Lucas found a Kookie card for marijuana and scissors in the center console; (3) after locating contraband, Lewis Mirandized Lucas and Lucas indicated she understood her rights; and (4) no
{¶21} The case came on for two-day trial on February 13-14, 2023. Before trial, upon the State‘s motion, the court dismissed Count 3, the marijuana possession count. The jury found Lucas guilty of the remaining three counts. On February 14, 2023, the court merged Counts 1 and 2. The court sentenced Lucas to 11 to 16½ years on Count 1, trafficking in cocaine, and 12 months on Count 4, possession of criminal tools. The court ordered Count 4 to run consecutively to Count 1, for an aggregate sentence of 12 to 17½ years. The court also assessed a mandatory fine of $20,000 on Count 1 and ordered Lucas to pay costs.
ASSIGNMENTS OF ERROR
- DEFENDANT-APPELLANT WAS DENIED HER CONSTITUTIONALLY GUARANTEED RIGHT TO EFFECTIVE HYBRID REPRESENTATION UNDER OHIO CONSTITUTION, ARTICLE I, SECTION 10.
- THE DEFENDANT-APPELLANT WAS DENIED HER CONSTITUTIONALLY GUARANTEED RIGHT TO EFFECTIVE STANDBY COUNSEL UNDER OHIO CONSTITUTION, ARTICLE I, SECTION 10.
- THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT‘S MOTION TO SUPPRESS EVIDENCE IN VIOLATION OF THE FIFTH, (sic) SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.
- THE TRIAL COURT ERRED BY IMPOSING A MANDATORY FINE UPON DEFENDANT-APPELLANT WHERE SHE WAS NOT BEING EFFECTIVELY ASSISTED BY STANDBY COUNSEL IN VIOLATION OF ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
{¶22} Lucas’ first, second and fourth assignments of error and a portion of her third assignment of error involve her decision to proceed pro se in the trial court below and discuss the concepts of hybrid representation, standby counsel, and effective assistance of counsel related thereto. Because the issues are so intertwined in our analysis, we will discuss all the issues regarding hybrid and standby counsel in those assignments together.
{¶23} In her first assignment of error, Lucas claims that the
{¶24} The State responds that it is well-settled that both the
{¶25} In her second assignment of error, Lucas claims that she was denied her constitutionally guaranteed right to effective standby counsel under
{¶26} The State responds that both the
{¶27} In her third and fourth assignments of error, Lucas once again claims that she was not effectively assisted by standby counsel because (1) her standby counsel did not assist her during the motion to suppress hearing resulting in a denial of her motion and (2) her standby counsel did not assist her at sentencing resulting in the trial court imposing a mandatory fine. She asserts that this lack of effective assistance of standby counsel at these critical stages of the proceeding results in the type of mistake for which she does not need to demonstrate prejudice, as set forth in the United States Supreme Court case, U.S. v. Cronic, 466 U.S. 648 (1984).
{¶28} The State asserts that the court properly denied Lucas’ motion to suppress and also sentenced Lucas in accordance with the applicable law such that these assignments of error should also be overruled. The State asserts that standby counsel did not file an affidavit regarding Lucas’ income claiming her to be indigent for
{¶29} Notably, Lucas does not turn to the federal constitution to support her arguments regarding counsel. She acknowledges that the federal constitution does not grant her rights to hybrid representation or standby counsel. Instead, she urges us to recognize that the
A. Self-Representation.
{¶30} The
{¶31} The United States Supreme Court has addressed the issue of whether a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. As the United States Supreme Court put in plain words, a state may not constitutionally “hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense.” Id. The Supreme Court of Ohio also acknowledged this
{¶32} Although a defendant has a right to counsel, or a right to proceed pro se, questions arise as to whether these rights extend to a right to hybrid representation or a right to have standby counsel when one elects to defend oneself. Hybrid representation results when a defendant represents herself while she also has a lawyer fully representing her, and the two work together as co-counsel. Standby counsel‘s involvement is defined by the trial court. Thus, hybrid representation differs from standby representation in that hybrid representation results in the defendant and counsel acting as co-counsel, sharing responsibilities in preparing and conducting trial. State v. Martin, 2004-Ohio-5471, ¶ 29.
{¶33} Some proponents of hybrid representation of criminal defendant and defense counsel argue that hybrid representation both preserves the reliability of the judicial process and protects the defendant‘s dignity. See State v. Thompson, 33 Ohio St. 3d 1, 7 (1987) (wherein appellant asserted this argument). Thus, some scholars and litigants have urged courts to recognize a right to both hybrid and standby representation under the
{¶34} As the Ohio Supreme Court recognized in Martin, hybrid representation results in several troubling issues. Martin at ¶ 33.
First, situations may arise in a hybrid representation environment where the accused and his “co-counsel” disagree on strategy, which witnesses to call, and other key trial issues. Who is the ultimate decision maker? Hybrid representation poses difficult ethical issues for counsel and management issues for the trial judge when the defendant and his counsel disagree as to how the trial should proceed.
Even more troubling is the issue of waiver. * * * Neither the court, nor the defendant, nor counsel, nor the prosecutor would know until the record of the trial was examined who was actually responsible for the conduct of the defense and in control of deciding questions and resolving problems as they arose.
Martin at ¶ 33-34. Further, we have repeatedly held that both the federal and state constitutions do not afford a defendant a right to hybrid representation and we see no need to depart from this precedent. See State v. Green, 2025-Ohio-611, ¶ 6, fn. 1 (4th Dist.); State v. Rexroad, 2023-Ohio-356, ¶ 39 (4th Dist.); State v. Myers, 2022-Ohio-4615, ¶ 24 (4th Dist.); State v. Lamb, 2018-Ohio-1405, ¶ 57 (4th Dist.); State v. James, 2014-Ohio-1702, ¶ 12 (4th Dist.); State v. Landrum, 1989 WL 4244, *21 (4th Dist. Jan. 12, 1989).
{¶35} In the instant case, while it is clear from the beginning that Lucas wanted to proceed pro se, it is murky at first as to whether Lucas wanted co-counsel to assist her in the trial court. She stated in her motion that she did not want the assistance of the court-appointed counsel she had received. Her motion states that she would possibly hire or procure her own counsel to help her at a later date. However, as the case progressed, she never procured her own counsel. At the December 12 hearing regarding her motion to proceed pro se (held before the motion to suppress hearing and trial) it became clear she wanted to proceed pro se, without co-counsel. That waiver was later memorialized in writing. She also made clear her wishes to represent herself at a February 2, 2023 hearing, and the inception of trial on February 13, 2023. Despite this waiver, she claims on appeal that she was requesting some sort of hybrid representation, which is afforded, she claims, by the
{¶37} We agree with the Twelfth District and other courts and reiterate that there is no right to hybrid representation. See, e.g., State v. Bender-Adams, 2024-Ohio-4897, ¶ 62 (8th Dist.); State v. Dinger, 2022-Ohio-608, ¶ 18 (5th Dist.); State v. Terell, 2022-Ohio-4312, ¶ 34 (6th Dist.); State v. Wilson, 2020-Ohio-2962, ¶ 56 (2d Dist.); State v. Keenan, 81 Ohio St.3d 133, 138 (1998). Further, as explained above, the record does not support the contention that Lucas even requested hybrid representation after waiving counsel.
C. Standby Representation
{¶38} As the Supreme Court of Ohio has explained, “[o]nce the right to counsel is properly waived, trial courts are permitted to appoint standby counsel to assist the otherwise pro se defendant.” State v. Martin, 2004-Ohio-5471, ¶ 28. The United States Supreme Court also clarified “‘a State may – even over objection by the accused – appoint a ‘standby counsel’ to aid the accused if and when the accused requests help,
{¶39} Unlike Lucas, whose challenge involves the state constitution, the Supreme Court of Ohio in State v. Hackett specifically limited its discussion to the narrow question of whether the
{¶41} In the instant case, once the trial court determined Lucas had waived her right to counsel pursuant to
The Court: Well, if I let you represent yourself I‘m going to appoint standby counsel to represent you, and even though they can‘t give you legal advice, they will be able to look up certain issues regarding the law for you, but they won‘t suggest to you what you should look up.
Further in the hearing, after ensuring Lucas wanted to proceed pro se, the court emphasized:
[D]o you understand that [court-appointed standby counsel] is standby counsel? Until such time as you tell him and advise the Court that you want him to represent you, he is not allowed to assist you in preparing this case for trial. * * * his job is to be there and be ready in case you feel like you‘re not up to the task to represent yourself at some point between now and the trial or you get cold feet and you want him to step in, but it‘s not his job to work with you in preparing a defense.
To which Lucas responded affirmatively.
{¶43} Lucas, however, still claims error because she asserts the
{¶44} In the instant case, Lucas alleges two specific errors in the standby counsel‘s representation. First, in her third assignment of error, Lucas speculates that her motion to suppress would have been granted if her standby counsel had participated in a more significant role during the hearing. But she does not point to what specifically the standby counsel should have, or could have, done to effect a different result. Further, in her fourth assignment of error, Lucas asserts that “the trial court erred in imposing a mandatory fine upon [her] while she was not being effectively assisted by standby counsel.” She further argues that this effective assistance of counsel springs forth from the
{¶45} Lucas completely fails to address the December 12, 2022 hearing and the January 13, 2023 waiver of counsel in which she gave up her right to counsel. As set forth above, waiver of counsel precludes this argument and the trial court‘s decision to appoint standby counsel does not equivocate a right to effective assistance of that counsel. Once she waived counsel she had to proceed at her own risk. As noted above, Ohio and federal precedent have long followed that principle, at least regarding the federal constitution. We are not persuaded that the
II. Third Assignment of Error – Motion to Suppress
{¶46} In addition to the assertions regarding ineffective assistance of standby counsel that were previously discussed, in her third assignment of error, Lucas asserts that the trial court erred in denying her motion to suppress evidence in violation of the
{¶47} In response, the State asserts that the traffic stop in the instant case was valid such that Lucas’ constitutional rights were not violated. For the following reasons, we agree with the State.
A. Law
{¶48} Appellate “review of a trial court‘s denial of a motion to suppress presents a ‘mixed question of law and fact.’ ” State v. Adams, 2024-Ohio-376, ¶ 21 (4th Dist.), quoting State v. Pine, 2023-Ohio-2191, ¶ 23 (4th Dist.), quoting State v. Burnside, 2003-Ohio-5372, ¶ 8. The trial court acts as the trier of fact at a suppression hearing and is in the best position to resolve factual questions and evaluate witness credibility. Id. citing State v. Sheets, 2023-Ohio-2591, ¶ 45 (4th Dist.), citing State v. Leonard, 2017-Ohio-1541, ¶ 15 (4th Dist.). ” ’ Accordingly, we defer to the trial court‘s findings of fact if they are supported by competent, credible evidence.’ ” Id. quoting State v. Jones, 2012-Ohio-1523, ¶ 6 (4th Dist.), citing State v. Landrum, 137 Ohio App.3d 718, 722, (4th Dist.
{¶49} ” ’ The
{¶50} “[N]ot every police-citizen encounter constitutes a ‘seizure’ subject to
{¶51} “A ‘seizure’ in the context of the
{¶52} Therefore, “a person has been ‘seized’ within the meaning of the
{¶53} In contrast to merely following someone, “[a] traffic stop initiated by a law enforcement officer constitutes a seizure within the meaning of the
B. Analysis
{¶54} In the instant case, Lucas claims in her motion filed in the trial court, and on appeal, that Lewis followed her for “five miles.” That is not clear from the record. It is clear that Lewis paced the vehicle for some time by maintaining the same distance
{¶55} Lucas claims a “seizure” occurred at the moment that Lewis began to follow her. We find Lucas’ argument that a seizure occurred the moment Lewis decided to follow her is unpersuasive, because there is no evidence to support an inference that Lewis restrained Lucas’ liberty by any show of authority. Until those 30 seconds before Lewis pulled Lucas over, Lewis had not activated sirens or lights, told Lucas to halt, displayed a weapon, or positioned his cruiser in a way to block the rental vehicle. Assuming arguendo that Lewis did follow Lucas for some time, which could perhaps be a credibility issue regarding what traffic violations he observed, Lewis explained at the hearing that he did not pull Lucas over when he first observed an infraction because
{¶56} In addition, questions of fact, as noted above, are for the trial court. There is competent, credible evidence in the transcript and the video exhibit the State presented at the motion to suppress hearing that Lewis observed the lane and speed violations. Because the issue is the reasonable suspicion to stop the vehicle, the reason Lucas may have given as to why he decided to follow the vehicle is but a factor in the totality of the circumstances. The time when an officer decides to follow a vehicle is not determinative of the issue of the reasonableness of the stop. Thus, the time Lewis decided to follow Lucas was not the time in which he had to articulate reasonable suspicion or probable cause that criminal activity was afoot.
{¶57} We find Lucas’ arguments to be unpersuasive and therefore overrule Lucas’ third assignment of error both for the reasons discussed above regarding hybrid or standby counsel, as well as for the reason that the stop in the within case was reasonable and did not violate the state or federal constitutions.
CONCLUSION
{¶58} Neither the
{¶60} We therefore overrule all of Lucas’ assignments of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and appellant shall pay 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 Scioto County Common Pleas 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 60 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 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-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 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY:
Kristy S. Wilkin, 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.