State v. ReeceState v. Reece
DECISION AND JUDGMENT
Decided: June 7, 2019
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Julia R. Bates, Lucas County Prosecuting Attorney, and Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Emil G. Gravelle III, for appellant.
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OSOWIK, J.
Introduction
{¶ 1} The defendant-appellant, Derek Reece, Sr., appeals his forgery conviction in the Lucas County Court of Common Pleas. He argues that the trial court erred in accepting his Alford plea without first advising him of his right to counsel or securing a waiver of thаt right. Reece also alleges that the court erred by denying his presentence
Facts and Procedural Background
{¶ 2} On January 31, 2017, Reece was indicted on three counts of forgery, in violation of
{¶ 3} During his first court appearance, Reece requested a continuance so that he could hire a lawyer. At his arraignment one week later, Reece announced to the court that he had “deсided against” hiring a lawyer and was going to represent himself. The court engaged in an extensive discussion with Reece regarding that decision. At the conclusion of the hearing, the court allowed Reece to represent himself and accepted his not guilty plea. Ten weeks later, at the change-of-plea hearing, Reece pled guilty, pursuant to North Carolina v. Alford, to one count of forgery (Count 1). In exchange, the state recommended that Reece be sentenced to community control in lieu of incarceration and agreed to nolle prosequi the other two forgery counts. No mention of Reece‘s right
{¶ 4} Prior to sentencing, Reece filed a motion to withdraw his plea, based in part, upon his claim that his due process rights had been violated. Following a hearing, the trial court denied Reece‘s motion (as well as a motion in limine and motion to dismiss), and it sentenced Reece to three years of community control, with 120 days of electronic monitoring. Reece appealed the trial court‘s December 21, 2017 judgment and was appointed appellate counsel. He raises three assignments of error for this court‘s review:
First Assignment of Error: The trial court erred in accepting appellant‘s plea pursuant to North Carolina v. Alford, by failing to comply with requirements of
Ohio Criminal Rule 11(C)(1) andOhio Criminal Rule 44 .Second Assignment of Error: The Court abused its discretion in failing to grant the appellant‘s motion to withdraw his plea entered pursuant to North Carolina v. Alford.
Third Assignment of Error: The Appellant‘s convictions were not supported by a sufficiency of evidence and the state failed to prove all essential elements of the offense as charged thereby violating the Appellant‘s Constitutional Right to Due Process due under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article I, Section 10, and Section 16 of the Ohio State Constitution.
{¶ 5} In this first assignment of error, Reece asserts that, at the time he entered his Alford plea, the trial court failed to advise him of his right to counsel, as required by
{¶ 6} The prosecution of any offense that includes imprisonment as a sentence—whether such offense is classified as petty, misdemeanor, or felony—triggers a defendant‘s right to counsel. State v. Wellman, 37 Ohio St.2d 162, 309 N.E.2d 915 (1974) paragraph one of the syllabus, citing Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
{¶ 7} The
{¶ 8} The right to counsel, however, “implicitly embodies a ‘correlative right to dispense with a lawyer‘s help.‘” Martin at ¶ 23, quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942). The right to represent oneself “is thwarted when counsel is forced upon an unwilling defendant, who alone bears the risks of а potential conviction.” State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 26, citing Faretta v. California, 422 U.S. 806, 819-820, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Nonetheless, if the accused “is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.” State v. Gibson, 45 Ohio St.2d 366, 376, 345 N.E.2d 399 (1976), quoting Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
{¶ 9} For that reason, there is a presumption against finding that a defendant has waived his or her right to counsel, and a trial court has a “serious and weighty responsibility” to determine whether the accused is knowingly, intelligently, and voluntarily waiving the constitutional right to counsel. Gibson at 376, quoting Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309 (1948). “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 circumstances 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 this right does not automatically end the judge‘s responsibility.” Id. “Although defendant[s] need not [themselves] have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, [they] should be made aware of the dangers and disаdvantages of self-representation, so that the record will establish that [they] know what [they are] doing and [their] choice is made with eyes open.” (Quotation omitted.) Faretta at 835.
{¶ 10} For the waiver of counsel to be valid, a trial court must engage in a colloquy with the defendant to ensure that he or she “has been ‘made aware of the dangers and disadvantages of self-representation.‘” Obermiller at ¶ 43, quoting Faretta at 835. “The specific nature of the colloquy varies from case to case, depending on the nature and circumstances of the charged offenses and potential penalties the defendant
{¶ 11} For example, in Gibson, the Supreme Court of Ohio held that a valid waiver of one‘s right to counsel must be made with 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 fаcts essential to a broad understanding of the whole matter.” Gibson at 377, quoting Von Moltke at 723. Other Ohio courts have noted that a court “should” also explain that the defendant “will be required to follow the same rules of procedure and evidence which normally govern the conduct of a trial.” State v. Furr, 1st Hamilton Dist. No. C-170046, 2018-Ohio-2205, ¶ 9, quoting State v. Doane, 69 Ohio App.3d 638, 646-647, 591 N.E.2d 735 (11th Dist.1990). But, again, “[t]he information a defendant must possess in order to make an intelligent election * * * will depend on a range of case-specific factors, including the defendant‘s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.” Johnson at ¶ 101, quoting Tovar at 88; see also Obermiller at ¶ 43 (“The specific nature of the colloquy varies from case to case.“).
{¶ 12} In Ohio,
(A) Counsel in serious offenses. Where a defendant charged with a serious offense is unable to obtain counsel, counsel shall be assigned to represent him at every stage of the proceedings from his initial appearance before a court through appeal as of right, unless the defendant, after being fully advised of his right to assigned counsel, knowingly, intelligently, and voluntarily waives his right to counsel.
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(C) Waiver of counsel. Waiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in Rule 22 [Recording of Proceedings]. In addition, in serious offense cases the waiver shall be in writing.
{¶ 13} Thus, pursuant to
{¶ 14} Whether a defendant knowingly, intelligently, and voluntarily waived the right to counsel is an issue that we review de novo. State v. Griffin, 10th Dist. Franklin No 10AP-902, 2011-Ohio-4250.
{¶ 16} Reece expressed his intention to hire his own lawyer at the preliminary hearing, and his arraignment was continued for that purpose for one week. At his June 15, 2017 arraignment, Reece asserted that he had “decided against” hiring an attorney and intended to represent himself. The court then engaged in an extensive dialogue with Reece. It inquired as to Reece‘s educational background and his knowledge, if any, of the criminal justice system. It explained that it could not offer legal advice and advised him of the maximum possible penalty if he was convicted of all three offenses. With regard to Reece‘s right to counsel, the court specifically advised him that if he was “without funds this court would appoint counsel to represent” him; that Reece could hire standby counsel who “who would sit in the courtroom, would not participate but would be there [for] any questions“; and that if Reece wаs indigent, standby counsel could be appointed. The court warned Reece that “the old saying is [that] when you represent yourself, you have a fool for a client,” and that representing oneself “can be a very dangerous, slippery slope,” as evidenced by the fact that Reece did not “even know
{¶ 17} The next transcript, dated August 28, 2017, indicates that the parties intended to go to trial the following day. Reece‘s self-representation was not addressed except that the court warned Reece, “[i]f you are proceeding to trial and you want to represent yourself, * * * yоu are presumed – and here is where I caution you seriously, * * * to know what the law is.”
{¶ 18} On the day of trial, August 29, 2017, the parties reached an agreement, and Reece told the court that he would plead guilty to a single felony. Before accepting the plea, the court observed, three times, that Reece was “representing himself.” It also instructed him that he could nоt raise an ineffective assistance of counsel claim on appeal because he was “representing [him]self,” which Reece acknowledged. However, no reference to Reece‘s right to counsel or waiver thereof was made.
{¶ 19} After reviewing the entire record, we must conclude that the trial court both failed to “readvise” Reece of his right to counsel at the time of his plea or warn him of the “dangers and disadvantages” of self-representation. The record also lacks any written waiver of counsel in contravention of
{¶ 21} In its brief, the state cites the colloquy during Reece‘s arraignment as evidence that the trial court advised Reece of his right to counsel and “made a sufficient inquiry to determine that [Reece] knowingly, intelligently, аnd voluntarily waived his right to counsel, and therefore, substantially complied with
{¶ 22} The facts of the instant case are different and, in our view, merit a different result. That is, although the court‘s colloquy with Reece during the arraignment bore no
{¶ 23} We sustain Reece‘s first assignment of error, vacate his forgery conviction, and remand for trial, where the court must advise Reece of right to counsel and, if he declines, to have the proper colloquy with him to ensure that he is voluntarily, knowingly, and intelligently waiving that right. In light of our decision as to Reece‘s first assignment of error, his second assignment of error (withdrawal of plea) and third assignment of error (sufficiency of the evidence) are moot, and we decline to address them.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. JUDGE
Arlene Singer, J. JUDGE
Thomas J. Osowik, J. JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.