{¶ 1} Defendant-appellant, Paul W. Súber, appeals from a judgment of conviction and sentence entered by the Franklin County Court of Common Pleas after a bench trial in which appellant was found guilty of six counts of passing bad checks and one count of extortion.
{¶ 2} The charges against appellant arose from a series of transactions by which appellant sought to profit from the federal regulatory system, mandated by
{¶ 3} Appellant initiated his scheme by depositing a check for $70,000, written by one James T. McBride, an acquaintance of appellant, in his checking account with Firstar Bank. Appellant admitted in conversations with investigators and did not dispute at trial that he knew that McBride’s check was drawn on a closed business account with the Delaware County Bank and Trust and would not be paid by that institution. Appellant thereafter monitored the available balance on his Firstar checking account using ATM machines.
{¶ 4} When appellant ascertained that sufficient funds had been made available by Firstar, he wrote 16 checks on his account, of which the bank paid seven for a loss of $3,914.32. Shortly thereafter, Firstar became aware that the $70,000 check deposited in appellant’s account would not be paid by Delaware County Bank and Trust, and it adjusted appellant’s checking-account balance accordingly and notified him that the account was overdrawn. When appellant refused to make good the overdraft, Firstar referred the matter to the Worthington Police Department.
{¶ 5} One of the checks drawn on appellant’s Firstar account, in the amount of $7,659, was deposited into appellant’s account with First Merit Bank. Repeating on a smaller scale the process undertaken with his Firstar account, appellant waited until First Merit had made funds available but before the check had been returned by Firstar for insufficient funds and withdrew $4,000 in cash from his First Merit account.
{¶ 6} When First Merit requested that appellant cover the overdraft, appellant attempted to do so by submitting two further checks drawn on the same overdrawn First Merit account. Again due to appellant’s refusal to effectively make good on his overdraft, First Merit also referred this matter to the Worthington Police Department.
{¶ 7} Appellant was subsequently arrested by Worthington police. During an interview with a police detective, he threatened to file liens against the detective’s personal assets and real estate if he was not immediately released. These threats by appellant gave rise to the extortion charge against him.
{¶ 8} At a hearing prior to trial, appellant waived his right to a jury trial and indicated that he intended to forego the assistance of legal counsel and defend
{¶ 9} On the scheduled trial date, appellant appeared before the trial court and requested a continuance because jail supervisors had not permitted him access to the jail library to prepare his defense. The trial court denied the requested continuance. The matter then proceeded to trial, and appellant did, in fact, represent himself with some assistance from appointed counsel.
{¶ 10} The state’s evidence consisted largely of documents and testimony establishing account balances, checks written, checks dishonored, and checks paid. The prosecution also presented the testimony of the Worthington police detective who was the object of the alleged extortion.
{¶ 11} Appellant’s defense was based entirely upon legal arguments invoking federal statutes and regulations governing availability of funds for depositors and time limits upon payor banks for giving notice of dishonor of checks under Article 4 of the Uniform Commercial Code (“UCC”). Other than these assertions that he had done nothing illegal according to his interpretation of relevant banking law and that the cited laws superseded any criminal statutes, appellant made little effort to rebut the elements of the various state-law offenses with which he was charged.
{¶ 12} The trial concluded with findings of guilty on all counts of the indictment. Appellant was accordingly convicted of six counts of passing bad checks, in violation of R.C. 2913.11. Two of these counts involved checks for payment of $500 or more but less than $5,000, constituting felonies of the fifth degree; the remaining four involved checks of $5,000 or greater but less than $100,000, constituting felonies of the fourth degree. For his threats against the arresting detective, appellant was convicted of extortion, a violation of R.C. 2905.11 and a felony of the third degree. After a presentence investigation, the court imposed sentences of ten months for each of the fifth-degree felony bad-check charges, 12 months for each of the fourth-degree felony bad-check charges, and five years on the extortion charge, all sentences to be served consecutively with each other and consecutively with a companion case in the Muskingum County Court of Common Pleas. 1 The court also ordered restitution to First Merit Bank and to U.S. Bank, Firstar’s corporate successor.
ASSIGNMENT OF ERROR NUMBER ONE
“The trial court erred when it entered judgment against the defendant on the charge of extortion when the evidence presented on behalf of the state was insufficient to sustain this finding by proof beyond a reasonable doubt and the judgment was against the manifest weight of the evidence presented.”
ASSIGNMENT OF ERROR NUMBER TWO
“The trial court erred when it failed to adequately and properly advise the defendant of his right to counsel and by failing to fully inquire and determine that any waiver of counsel was made knowingly, intelligently, and voluntarily by the defendant. The court further erred when it failed to obtain the waiver of counsel in writing as required by law.”
ASSIGNMENT OF ERROR NUMBER THREE
“The trial court erred when it entered judgment against the defendant on the passing bad check charges contained in counts five and six of the indictment when the evidence presented on behalf of the state was insufficient to sustain the finding by proof beyond a reasonable doubt that the defendant issued the checks with the purpose to defraud since the checks were issued to the bank for a pre-existing debt and the bank knew, upon receipt, that the checks were worthless.”
ASSIGNMENT OF ERROR NUMBER FOUR
“The trial court erred when it entered judgment against the defendant on the passing bad check charge contained in Count One of the indictment when the evidence presented on behalf of the state was insufficient to sustain the finding by proof beyond a reasonable doubt that the defendant issued the check knowing that it would be dishonored since the check was never dishonored.”
{¶ 14} Appellant’s second assignment of error raises the threshold issue of whether appellant’s waiver of counsel at trial complied with all necessary safeguards to his right to counsel guaranteed by the Sixth Amendment to the United States Constitution. It will accordingly be addressed first.
{¶ 16} Appellant raises several grounds for finding that his waiver was not knowing, voluntary, and intelligent. He asserts that the colloquy between himself and the trial court was inadequate to protect his rights and dissuade him from the unwise course of representing himself; he asserts that the court did not adequately inquire into the possibility that his desire to forego counsel was prompted by a lack of confidence in the ability or diligence of appointed counsel; he asserts that the court did not re-emphasize the dangers of proceeding pro se after he was denied a continuance to prepare for trial; and lastly he argues that the lack of a written waiver is sufficient in itself to show the absence of a valid waiver of counsel.
{¶ 17} In some aspects, the record before us indicates that the trial court did in fact extend extensive cautionary advice to appellant regarding the risks of defending himself and the benefits of proceeding with counsel. At the initial hearing, the court pointed out that appellant’s lack of legal education would be a handicap and that the complexity of some of the charges against him would make them difficult to defend. The court duly examined the contents of the competen
{¶ 18} There is also no indication in the present case that appellant was dissatisfied with the performance of appointed counsel beyond the bare fact that counsel refused to pursue the banking-law defenses that appellant believed justified his conduct. It is apparent that appellant’s theories of defense were rooted more in his political and philosophical convictions rather than on application of Ohio criminal law to the facts of his case, and appointed counsel seems to have, understandably, wished to pursue a more conventional and promising line of defense. The record beyond this is bare of any indication that appellant was dissatisfied with the effort and competence of appointed counsel, and the court was not obligated to pursue this possibility in more detail.
State v. Keith
(1997),
{¶ 19} The two other aspects of this issue raised by appellant, however, militate for reversal. The trial court, when it denied appellant’s request for a continuance, was necessarily aware that appellant claimed he had been denied access to the jailhouse library and thus was not prepared for trial. The trial court did not, at this juncture, effectively re-express the concerns regarding appellant’s self-representation. This denial of a continuance would have been of no great consequence had appellant been represented by counsel well versed in Ohio criminal law. To a pro se defendant facing a reasonably complex set of charges, however, the consequences should have been more clearly emphasized.
{¶ 20} It is not a remote speculation to conclude that appellant, with a minimal opportunity to avail himself of the legal research resources of the county jail, would have become aware that he was erroneous in his deluded belief that he had somehow discovered a statutory loophole in banking law big enough to drive a truckload of cash through. Indeed, comparable opportunistic distortions of Section 4001, Title 12, U.S.Code, et seq., and UCC, Article 4, have never been accepted by the courts. See, e.g.,
Essex Constr. Corp. v. Indus. Bank of Washington
(D.Md.1995),
{¶ 21} Therefore, we find that the colloquy was insufficient to protect appellant’s constitutional right to counsel in that the trial court made insufficient inquiry to determine whether appellant fully understood and intelligently relinquished that right, as mandated by Gibson and Faretta.
{¶ 22} We also agree with appellant’s argument that his waiver was not knowing, voluntary, and intelligent on the sole basis that he did not execute the written waiver of counsel required by Crim.R. 44(C). We make this determination fully aware that it represents a departure from our past holdings. Crim.R. 44(C) provides as follows: ‘Waiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in Rule 22. In addition, in serious offense eases, the waiver shall be in writing.”
{¶ 23} This court has for some years applied a prejudicial-error standard to the written waiver requirement of Crim.R. 44(C), holding that, in the presence of an adequate colloquy between court and defendant regarding the possible consequences of proceeding without counsel, the absence of a written waiver is not constitutionally defective per se.
State v. Jackson
(Sept. 4, 1990), Franklin App. No. 89AP-1344,
{¶ 24} Other Ohio appellate districts, however, have unequivocally differed with us on this question.
State v. Melton
(May 4, 2000), Cuyahoga App. No. 75792,
{¶ 25} While there is no comparable federal requirement in rule or case law, the Ohio requirement that a waiver of trial counsel be reduced to writing, even in the presence of an adequate colloquy between court and defendant, is easy to justify in light of the importance of the right being waived. Compelling a
{¶ 26} Crim.R. 44(C)’s requirement of a written waiver is not phrased in hortatory terms: “in serious offense cases, the waiver
shall
be in writing.” (Emphasis added.) We now conclude that our prior prejudicial-error standard inappropriately disregards the mandatory language of the rule, and that noncompliance with its explicit language should give rise to reversible error. “Compliance with Crim.R. 44 ensures that an accused facing a term of incarceration is not tried without the assistance of counsel unless the accused knowingly, intelligently, and voluntarily waives his right to counsel. * * * Because this procedural rule bears on a defendant’s constitutionally protected right to have the assistance of counsel, a defendant tried in violation of the protections afforded by Crim.R. 44 could not have been tried fairly.”
Campbell,
{¶ 27} Finally, we note that similar requirements under Crim.R. 23(A) for a written waiver of the right to jury trial have always been strictly enforced.
State v. Tate
(1979),
{¶ 28} Accordingly we find that in this case the absence of a written waiver of trial counsel was reversible error.
{¶ 29} Based upon the foregoing, appellant’s second assignment of error is sustained. We find that appellant must be granted a new trial because his waiver of counsel was not knowing, voluntary, and intelligent, and because the record bears no trace of the written waiver required by Crim.R. 44(C).
{¶ 30} Although our disposition of appellant’s second assignment of error clearly moots some aspects of the remaining three, to the extent that they raise arguments regarding the sufficiency of the evidence they must be addressed, since a reversal on sufficiency grounds would bar retrial on the counts affected.
Tibbs v. Florida
(1982),
{¶ 31} Appellant’s first assignment of error asserts that the state did not meet its burden of proving the elements of extortion. The evidence in support of this count of the indictment was based on the testimony of Tammy Floyd, a detective with the Worthington Police Department. Detective Floyd arrested
{¶ 32} The trial court found that the threat to place liens on Detective Floyd’s personal property if she did not release appellant constituted the crime of extortion. The trial court specifically stated that it considered only the threat against Detective Floyd personally and did not rely on the letter threatening some sort of property action against the Worthington Police Headquarters, since the detective had no personal interest in this property. We agree with the trial court that the letter is not germane to the extortion attempt against Detective Floyd and further agree that, by itself, the threat to file fictional liens could support one of the elements of the crime of extortion.
{¶ 33} The elements of extortion are set forth in R.C. 2905.11. For purposes of the present case, the elements are that appellant must have, with a purpose to induce another to commit an unlawful act, threatened to commit a felony. Appellant was attempting to induce Detective Floyd to release him. If she had, it would have been an illegal act: dereliction of duty in violation of R.C. 2921.44(A). In order to induce Detective Floyd to release him, appellant threatened to place liens upon her personal property. The state asserts that this constituted the crime of intimidation, a violation of R.C. 2921.03. The elements of intimidation are (1) knowingly, (2) by force or unlawful threat of harm to any person or property, or (3) by filing, recording, or using a false or fraudulent writing with malicious purpose in bad faith or in a reckless manner, (4) attempting to influence, intimidate, or hinder a public servant from discharging their duty. 2 Intimidation is a felony of the third degree.
{¶ 34} In the present case, we find that the state presented evidence that appellant had threatened to use a false or fraudulent writing with malicious purpose in order to intimidate Detective Floyd into a dereliction of her duty. Since intimidation is a felony, dereliction of duty is an illegal act, and appellant, if
{¶ 35} Appellant’s third assignment of error asserts that the trial court’s judgment finding appellant guilty on two of the bad-check charges against him, counts five and six of the indictment, was not supported by sufficient evidence.
{¶ 36} The two checks in question were written by appellant on his First Merit account and presented for deposit on that very same account in order to make good the overdraft created by the dishonor of the checks written on appellant’s Firstar account and used to fund the First Merit account. Appellant argues that there was not sufficient evidence to support these two bad-check counts. Appellant’s position is that the elements of the crime of passing bad checks include an attempt to defraud, and because the checks were tendered to a payee who knew or should have known that there were insufficient funds, First Merit being both the payee and payor bank, the element of intent to defraud is not met.
{¶ 37} Appellant relies upon
State v. Edwards
(2001),
{¶ 38} The crime of passing a bad check in Ohio is set forth in R.C. 2913.11:
“(A) No person, with purpose to defraud, shall issue or transfer or cause to be issued or transferred a check or other negotiable instrument, knowing that it will be dishonored.
“(B) For purposes of this section, a person who issues or transfers a check or other negotiable instrument is presumed to know that it will be dishonored if either of the following occurs:
“(1) The drawer had no account with the drawee at the time of issue or the stated date, whichever is later;
“(2) The check or other negotiable instrument was properly refused payment for insufficient funds upon presentment within thirty days after issue or the stated date, whichever is later, and the liability of the drawer, indorser, or any party who may be liable thereon is not discharged by payment or satisfaction within ten days after receiving notice of dishonor.”
{¶ 39} The term “with purpose to defraud” in R.C. 2913.11(A) is defined to mean, “to knowingly obtain, by deception, some benefit for oneself or another, or to knowingly cause, by deception, some detriment to another.” R.C. 2913.01(B).
{¶ 40} The detriment needed to show a purpose to defraud in issuing a check which the drawer knows will be dishonored need not be limited to conventional situations in which property or cash is the immediate object of the fraud; the detriment to the payee sufficient to support an intent to defraud can include situations where a check is tendered with the purpose of inducing the temporary belief that a shortage has been paid, thus delaying potential collection processes or concealing shortages in other respects.
State v. Doane
(1990),
{¶ 41} Appellant’s fourth assignment of error asserts that the trial court’s verdict finding him guilty on Count One of the indictment, involving a check written to pay appellant’s Discover Card bill for $3,416.93, is not supported by sufficient evidence because this check was in fact not dishonored by Firstar, even though it was later determined that insufficient funds were present in the account to cover the check. Since R.C. 2913.11(A) requires that the check be negotiated “knowing that it will be dishonored” (emphasis added), and the only evidence in the case established that the check had not been dishonored, but merely contributed to the overdraft, we agree with appellant that one of the essential elements of passing a bad check was not established by the prosecution in the present case. While clearly appellant might have been subject to being charged with another form of theft offense against the bank for this particular conduct, it did not constitute passing a bad check, because the payee was able to successfully negotiate the check without dishonor. There was therefore insufficient evidence to convict appellant on Count One of the indictment, and appellant’s fourth assignment of error is sustained. As our reversal is based on insufficient evidence, appellant shall not be retried on this count of the indictment upon remand.
Judgment reversed and cause remanded.
Notes
. It is unclear from the record whether sentence had already been imposed in the Muskingum County case at the time of sentencing of the present case, and we expressly make no
. We note that two competing versions of R.C. 2921.03 were passed by the legislature in 1996; the earlier of the two does not include the false or fraudulent writing language applicable to the present case. We rely, however, on the later-enacted version, H.B. 644, effective November 6, 1996, which contains the appropriate language.