STATE OF OHIO, MAHONING COUNTY v. JOHN PRICE
CASE NO. CASE NO. 14 MA 28
IN THE COURT OF APPEALS SEVENTH DISTRICT
March 26, 2015
2015-Ohio-1199
Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Mary DeGenaro
OPINION; Case No. 13 CRB 547 SEB
JUDGMENT: Conviction affirmed; sentence remanded.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West. Boardman St., 6th Floor Youngstown, Ohio 44503
For Defendant-Appellant: Atty.Rhys Cartwright Jones 42 North Phelps St. Youngstown, OH 44503
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: March 26, 2015
{¶1} Defendant-Appellant John R. Price (“Appellant”) appeals the decision of Mahoning County Court No. 3 finding him guilty of hunting on the lands of another without permission. Appellant first contends that the record fails to show a proper waiver of counsel under
{¶2} Appellant’s second argument is that the state failed to prove venue. As venue can be waived and no objection was entered, Appellant must rely on plain error. Venue need not be directly expressed. Circumstantial evidence can establish venue. We conclude that the trial court acted within its broad discretion to determine that venue was established in Mahoning County under the totality of the facts presented, and thus, there was no plain error.
{¶3} Accordingly, Appellant’s conviction is upheld. However, his sentence is reversed and remanded for a resentencing hearing with instructions that a sentence of confinement may not be imposed, including a suspended sentence.
STATEMENT OF THE CASE
{¶4} Appellant was cited for hunting on the lands of another without first obtaining written permission in violation of
{¶6} Some days later, the landowner noticed that his trail camera had captured photographs of Appellant on his land. He printed the photographs in order to post them at the property line. One of these photographs, dated October 13, 2013, was admitted as a state’s exhibit. It depicted Appellant carrying a gun and wearing camouflage clothing and an orange jacket.
{¶7} On October 21, 2013, as the landowner was posting the photographs near the property line, he spotted Appellant on his property wearing camouflage and carrying a crossbow. Appellant informed him that he was pushing deer to his brother who was in the woods. There was a confrontation during which Appellant’s brother appeared and tried to make amends with the landowner. (Tr. 9-10). That same day, the landowner reported the incident to a game warden with the Ohio Department of Natural Resources (“ODNR”).
{¶8} The transcript indicates that the landowner testified he lived on approximately 39 acres at “5781 (inaudible) Road.” (Tr. 4). A state’s exhibit admitted into evidence contained a map of the landowner’s property, which displayed the address of 5781 Weaver Rd and listed this landowner as the owner. It was generated from gis.mahoningcountyoh.gov/mahoningpublicviewer. The landowner testified that he knows the location of his property line from both the map and the fence line. (Tr. 5). He pointed out to the court where on the map his trail camera had been located with regard to his property line and which way it had been pointed. (Tr. 6-7). He noted that the fence line was not visible on the aerial map but demonstrated where the fence line runs. The landowner also pointed out the gas line running through his property and how it related to the fence line. (Tr. 6-7).
{¶9} The ODNR officer testified that the landowner showed him the gas line and where he had posted his photographs and the trail camera. He noted that the
{¶10} Appellant testified that his brother had written permission from a friend to hunt on the neighboring thirteen acres. He explained that he waved to the camera because his brother said he talked to someone else hunting the property. (Tr. 17). The third time appellant hunted there, he encountered the landowner “on a fire trail” pounding stakes with a hammer as if putting up a roadblock. (Tr. 16). Appellant testified that the landowner pulled out his gun, ran at him, and screamed about poaching. (Tr. 16). He acknowledged that he responded in kind, with screaming and cursing. (Tr. 18).
{¶11} Appellant provided documents to the court, including an aerial photograph encompassing most of the landowner’s lot printed from maps.google.com, a property line map from Mahoning County GIS with the landowner’s lot outlined, and a zoomed-in version of this map from the same Mahoning County web address that generated the state’s exhibit containing the aerial photograph of 5781 Weaver Rd. Appellant placed a dot on the property lying south of the landowner’s lot, stating that it represented his location that day by latitude and longitude. (Tr. 17). Appellant testified that he was not on the landowner’s property and claimed that the camera was not on the landowner’s property either. (Tr. 16-18). He also stated, “And if I was on his property it was probably by 60, 75 feet at the very most, and it was crossing through.” (Tr. 17).
{¶12} Appellant’s brother testified that he had written permission from the landowner’s neighbor to hunt on that neighbor’s property. He failed to bring the document to court, but he noted that he showed it to the landowner the first time they spoke in the woods and to the officer when he was served with the ticket. (Tr. 19). He related that he was in his tree stand when he first met the landowner. After the landowner mentioned poachers, he approached the fence line (which was broken down to knee height) and showed him his written permission. (Tr. 20). Appellant’s
{¶13} The court announced that it would take the matter under advisement and issue a written decision. (Tr. 22). On January 23, 2014, the court issued a judgment entry finding the defendant guilty of hunting without permission under
LACK OF COUNSEL
{¶14} Appellant’s first assignment of error provides:
“The trial court erred in proceeding to trial without a valid counsel waiver, given that Price had no attorney.”
{¶15} Appellant states that before proceeding to trial with a pro se defendant, the trial court was required to inquire as to whether he understood the dangers inherent in self-representation. He states that the record fails to reflect that he knowingly, intelligently, and voluntarily waived his right to counsel as the trial court did not engage in any colloquy on the record regarding self-representation or even elicit a waiver of counsel. Appellant reviews this court’s decision in Downie and alleges a violation of
{¶16} The state cites our Roepke case, noting that
{¶17} In response to Appellant’s suggestion that the right to counsel applies where there is merely a possibility of imprisonment, the state points out that the right to counsel only attaches to a petty offense where the court actually imposes incarceration and does not attach merely because incarceration is statutorily authorized for the offense, citing the United States Supreme Court’s holding in Argersinger. The state does not set forth circumstances showing that Appellant knowingly, voluntarily, and intelligently waived counsel and does not argue against Appellant’s conclusion that the trial record contains no indication of a waiver of counsel. Rather, the state suggests that Appellant had no right to counsel because an actual term of imprisonment was not imposed here (as the court imposed ten days in jail with ten days suspended and six months of probation). However, this position has been rejected by the United States Supreme Court in Shelton, where the Court ruled that such a suspended sentence is considered the actual imposition of a term of incarceration.
{¶18} Before delving into that case, we review its antecessor cases. It has been held by the United States Supreme Court that absent a knowing and intelligent waiver, a defendant cannot be imprisoned for any type of offense unless he was represented by counsel at trial or he made a knowing, intelligent, and voluntary waiver of his right to counsel. Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). This way, every trial judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed unless the defendant is represented by an attorney or there is a proper waiver of counsel. Id. at 40.
{¶19} It was thereafter explained that the Constitution does not require a state to provide counsel just because imprisonment is an authorized penalty. Scott v. Illinois, 440 U.S. 367, 368-369, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). Instead, there is a line of demarcation for the constitutional right to appointment of counsel (where there is no waiver) and that is where a term of imprisonment is the actual penalty
{¶20} Consequently, imprisonment can be imposed without counsel if there was a valid waiver. Argersinger, 407 U.S. at 37. In waiving counsel and seeking to represent oneself, the defendant must knowingly and intelligently forgo the benefit of an attorney. See id. See also Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In line with these holdings,
Where a defendant charged with a petty offense is unable to obtain counsel, the court may assign counsel to represent him. When a defendant charged with a petty offense is unable to obtain counsel, no sentence of confinement may be imposed upon him, unless after being fully advised by the court, he knowingly, intelligently, and voluntarily waives assignment of counsel. (Emphasis added.)1
Notably, whether one is “unable to obtain counsel” does not depend on indigency. See, e.g., State v. Tymcio, 42 Ohio St.2d 39, 44, 325 N.E.2d 556 (1975).
{¶21} As to the waiver of counsel required before imposing a sentence of confinement on an unrepresented petty offender,
{¶22} As the state points out,
{¶23} In Shelton, the Alabama Supreme Court found a waiver of counsel ineffective, affirmed the defendant’s conviction and fine, and invalidated the aspect of the sentence imposing thirty days of suspended jail time. The Court reasoned that the state is constitutionally barred from activating the conditional sentence and thus it is a nullity. The United States Supreme Court agreed with the finding that a suspended sentence constitutes a term of imprisonment within the meaning of Argersinger and Scott even though incarceration is not immediate or inevitable. Shelton, 535 U.S. at 658-659. A defendant who receives a suspended sentence to imprisonment had a constitutional right to counsel when his guilt was being decided (and thus that portion of the sentence cannot stand). Id. at 674.
{¶24} Accordingly, Appellant cannot be sentenced to the suspended sentence “unless after being fully advised by the court, he knowingly, intelligently, and voluntarily waives assignment of counsel.” See
{¶26} Compliance with
{¶28} “Waiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in Rule 22.”
{¶29} As stated above, the failure to comply with
{¶30} On the matter of the sentencing, we add that a sentencing hearing was not held in this case as the court took the matter under advisement after trial and then issued a judgment entry finding appellant guilty and imposing sentence.
{¶31} The rule applies to the sentencing of all defendants, including misdemeanants. State v. Welch, 53 Ohio St.2d 47, 48, 372 N.E.2d 346 (1978) (where misdemeanant was sentenced only by judgment entry after a bench trial and was not present for pronouncement of guilt and sentence, Supreme Court reversed for resentencing). See also Beachwood v. Hill, 8th Dist. No. 93577, 2010-Ohio-3313, ¶ 31-33, fn.4 (reversing for resentencing where municipal court held bench trial, took matter under advisement, and later issued judgment entry containing conviction and sentence); State v. Lloyd, 4th Dist. No. 03CA20, 2004-Ohio-4719, ¶ 19-20 (reversing where the municipal court announced sentence and guilt in a judgment entry outside of the defendant’s presence after a bench trial).
{¶32} Moreover,
VENUE
{¶33} Appellant’s second assignment of error provides:
“The trial court erred in entering a judgment of conviction without sufficient proof of venue.”
{¶34} Appellant states that there was insufficient evidence to establish venue in Mahoning County because, although specific testimony on the county is not required, there was no other evidence such as city or township, landmarks, or
{¶35} Venue lies “in the county in which the offense is alleged to have been committed * * *.”
{¶36} Venue is a fact which must be proven beyond a reasonable doubt (unless it has been waived). State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 143; State v. Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). However, venue need not be established in express terms. Jackson, 141 Ohio St.3d 171 at ¶ 144; Headley, 6 Ohio St.3d at 477. See also State v. Chintalapalli, 88 Ohio St.3d 43, 45, 723 N.E.2d 111 (2000) (court must find a sufficient nexus between the defendant and the county of trial). Rather, it can be established by the totality of the facts and circumstances in the case. Id. “Trial courts have broad discretion to determine the facts that would establish venue.” Jackson, 141 Ohio St.3d 171 at ¶ 144.
{¶37} Although we speak in terms of whether the evidence was sufficient to establish venue (and sufficiency of the evidence on the material elements is not subject to waiver at trial), venue is not a material element of the case and the issue of venue can be waived. Id. at ¶ 143. If a specific objection to venue is not made, then the appellate court reviews only for plain error. Id. at ¶ 142-143. See also State v. Lamb, 7th Dist. No. 12MA224, 2013-Ohio-5683, ¶ 17-18 (citing cases finding that general
{¶38} There was no allegation below that venue was not established, and thus, absent plain error, the issue was waived for purposes of appeal. For the following reasons, we cannot find plain error in this case.
{¶39} The landowner testified that Appellant was hunting on his property. The transcript indicates that he has approximately thirty-nine acres at “5781 (inaudible) Road.” (Tr. 4). Contrary to appellant’s suggestion, the fact that the street name was said to be “inaudible” by a court reporter who was transcribing a taped trial does not plainly demonstrate that a street name was not provided or was not audible to the trial judge who heard the testimony live.
{¶40} In fact, the electronic copy of the proceedings from which a transcription is made is part of the record. See
{¶41} Plus, the state’s admitted exhibit, showing an aerial view of the landowner’s lot (with highlighted property lines) and some neighboring properties, has the address “5781 WEAVER RD” in a caption bubble that points to the structure on the highlighted lot. The landowner identified this as his land, and his name is listed as the owner in another caption.
{¶42} Still, Appellant suggests that a street number and street name would be inadequate without indication of a city, township, landmark, or arresting officer’s affiliation known to be located in the county. However, the state’s exhibit identified by the landowner as depicting his property at 5781 Weaver Road has a header location of Mahoning County and was generated from the following website:
{¶43} In sum, although the safest prosecutorial practice is to ensure that at least one witness testifies to the county (or even the city or township) when giving the street address at which the offense occurred, an explicit statement of venue is not mandatory. See, e.g., Jackson, 141 Ohio St.3d 171 at ¶ 144; Chintalapalli, 88 Ohio St.3d at 45. Headley, 6 Ohio St.3d at 477. Under the totality of the facts and circumstances existing in this particular case, this court concludes that it was within the trial court’s “broad discretion” to find that the land on which Appellant was discovered hunting was located in Mahoning County. See Jackson, 141 Ohio St.3d 171 at ¶ 144. As there was no plain error, this assignment of error is overruled.
{¶44} For the foregoing reasons, appellant’s conviction is affirmed, and the case is remanded for a resentencing hearing with instructions that a sentence to confinement cannot be imposed, which includes a suspended sentence.
Donofrio, P.J., Concurs.
DeGenaro, J., Concurs.