STATE OF OHIO v. DANIEL C. OTT
C.A. No. 27953
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
February 15, 2017
2017-Ohio-521
APPEAL FROM JUDGMENT ENTERED IN THE STOW MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 2015CRB01521
HENSAL, Judge.
{1} Daniel Ott appeals a judgment of the Stow Municipal Court that convicted and sentenced him for domestic violence. For the following reasons, this Court reverses.
I.
{2} A Tallmadge police officer charged Mr. Ott with domestic violence for allеgedly throwing the mother of his child to the floor and ripping her shirt. Following a trial in which Mr. Ott represented himself, the municipal court found him guilty of the offense and sentenced him to 180 days in jail, which it suspended. Mr. Ott has appealed, assigning three errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT DID NOT ENGAGE IN THE RECORDED COLLOQUY
{4} At a pretrial hearing, the municipal court noted that Mr. Ott did not have counsel. It advised him that he hаd the right to a lawyer and that, if he could not afford one, one would be appointed to represent him. The court also told Mr. Ott that, if he represented himself, it would be his duty to subpoena any witnesses that he desired to call at trial. It further told him that, if he wanted a lawyer to represent him, he should get one as soon as possible because the trial date would be arriving quickly. At trial, the court merely noted that Mr. Ott would be representing himself and that it had had a conversation with Mr. Ott about the trial process and thе fact that he would be subject to the rules of evidence.
{5} The Ohio Supreme Court has held that a defendant has the 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. Gibson, 45 Ohio St.2d 366 (1976), paragraph one of the syllabus. “In order to establish an effective waiver of right to counsel, the trial cоurt must make sufficient inquiry to determine whether defendant fully understands and
{6} Uрon review of the record, there is no indication that the trial court explained to Mr. Ott “the nature of the charges, the statutory offenses included within them, the range of allowable punishments, possible defenses, mitigation, or other facts essential to a broad understanding of the whole matter[.]” State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 43; Gibson at 377, quoting Von Moltke v. Gillies, 332 U.S. 708, 723 (1948). Accordingly, we cannot say that he knowingly and intelligently waived his right to counsel. See Martin at ¶ 45.
{7} The State argues that, if this Court concludes that Mr. Ott did not properly waive his right to counsel, the remedy is to remove the term of incаrceration from his sentence. Mr. Ott, on the other hand, argues that his conviction must be reversed, and his case remanded for a new trial. In the past, this Court has ordered both remedies, depending on the particular circumstances of the case. See State v. Knight, 9th Dist. Lorain No. 11CA010034, 2012-Ohio-5816, ¶ 16 (vacating jail term); City of Cuyahoga Falls v. Hurd, 9th Dist. Summit No. 26657, 2013-Ohio-3512, ¶ 14 (reversing and remanding for a new trial). Since our most recent decision
{8} Applying Bode to the facts of this case, we conclude that Mr. Ott‘s conviction must be reversed and this case remanded for a new trial. See id.; State v. Wamsley, 5th Dist. Ashland No. 15-COA-030, 2016-Ohio-2885, ¶ 24 (“If the conviction is unconstitutional for elevation purposes, it cannot be allowed to stand as constitutional for conviction purposes.“) (Emphasis sic.) Mr. Ott‘s first assignmеnt of error is sustained. In light of our disposition of the first assignment of error, we conclude that Mr. Ott‘s remaining assignments of error are not ripe for consideration.
III.
{9} Mr. Ott‘s first assignment of error is sustained. The judgment of the Stow Municipal Court is reversed, and this matter is remanded for further proceedings consistent with this decision.
There were reasonable grounds for this appeal.
Judgment reversed, and cause remanded.
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.
Costs taxed to Appellee.
JENNIFER HENSAL
FOR THE COURT
CARR, P. J.
CONCURS.
SCHAFER, J.
CONCURRING.
{10} I agree with the Majority‘s analysis and resolution of Mr. Ott‘s first assignment of error. I write separately, however, to emphasize that since thе right to counsel is a constitutional right, “strict compliance with the advisement and waiver requirements is mandatory.” State v. Wamsley, 5th Dist. Ashland No. 15-COA-030, 2016-Ohio-2885, ¶ 10. As the trial court did not strictly comply with the waiver requirements by sufficiently inquiring into whether Mr. Ott fully understood and intelligently relinquished his right to counsel, I agree that Mr. Ott did not
{11} Lastly, with respect to the Majority‘s citation to State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, I wish to clarify that the facts and procedural posture of Bode are much less relevant to the resolution of the present matter than the Supreme Cоurt of Ohio‘s explicit holding in that case. See id. at ¶ 24 (holding that the “possibility of confinement” “determines whether counsel is necessary in a particular case” under Ohio law), citing State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970.
APPEARANCES:
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
MEGAN E. RABER, Director of Law, and JOHN A. SCAVELLI, JR., Assistant Director of Law, for Appellee.