2006 Ohio 5834 | Ohio Ct. App. | 2006
Lead Opinion
{¶ 2} On March 6, 2005, West was arrested for OVI in violation of R.C.
{¶ 3} On March 9, 2005, West's attorney, Eric Wilson, filed notice of counsel along with a time waiver. The time waiver provided "Defendant, by and through counsel, waives his right to a speedy trial as provided in O.R.C. Section 2945.71." (Mar. 9, 2005 Motion p. 2).
{¶ 4} On May 9, 2005, Wilson moved to suppress evidence on behalf of West. On May 11, 2005, West filed his own motion to dismiss with an additional motion and demand, which the trial court summarily overruled because West had counsel representing him.
{¶ 5} In June of 2005, the trial court held a hearing on Wilson's motion to suppress. In its entry overruling Wilson's motion, the trial court provided:
The evidence presented by the State was that the officerobserved the defendant leave a parking lot by driving across thesidewalk and the curb. At the intersection the officer observedthe vehicle to (Sic.) make a right turn and to (Sic.) go left ofcenter while on South Street. The officer activated the pursuitlights and the defendant pulled over just after the nextintersection. The officer testified that he observed a strongodor of alcohol coming from the defendant, that his eyes werebloodshot and glassy and that his speech was slurred and hismovements within the vehicle were slow and deliberate. Thedefendant admitted to having a couple of drinks and was asked toexit the vehicle. The officer had the defendant perform the HGNtest and stated that he observed all six clues. The defendantadvised that he had physical problems and could not do the walkand turn and one leg stand test. The defendant and his passengercontested virtually every point of the officer's testimony.Specifically they testified that they had not been at theFriendly Tavern but had been at the CC Loft and Lounge. Theyadvised that they had never been in the parking lot and thus hadnot driven over the sidewalk and curb. They testified that theirpath had been straight down South Street to the point where theywere pulled over. The defendant indicated that he had only twodrinks, purchased for him by the owner of the CC Loft and Lounge— shots drunk within two minutes of leaving the bar. Thedefendant also testified that he had undergone laser eye surgeryseveral weeks prior to the incident.
{¶ 6} The video of the stop begins after the cruiser was onSouth Street. It thus shows none of the driving alleged by eitherside. Additionally the officer's mike was malfunctioning —cutting in and out so that much of the conversation of theparties was not audible.
{¶ 7} The video does appear to show some of the pointstestified to by Officer Sutton — specifically that it took sometime for the defendant to present his license and other documentsto the officer. It does not clearly show the officer having totake the license from the defendant. The video also has some ofthe defendant's voice and that audio would appear to confirm theslurring speech as testified to by the officer.
{¶ 8} The Court finds that the entire proceeding is one of thecredibility of the parties. The Court finds that it believes thatthe officer is credible and that the defendant and his witnessare not.
{¶ 9} The Court finds that the State has therefore establishedthat Officer Sutton did have reasonable basis for the stop of thedefendant's vehicle and to place him under arrest for OVI.
(June 24, 2005 Judgment Entry pp. 1-2).
{¶ 10} In August of 2005, Wilson moved to resign as counsel, because West no longer desired his services. The trial court granted Wilson's motion.
{¶ 11} In October of 2005, West filed another motion to dismiss, which the trial court subsequently overruled.
{¶ 12} On January 9, 2006, a jury trial was held.1
The jury trial lasted two days. West failed to appear on the second day of trial; however, the trial court found West's absence to be voluntary. At the conclusion of the trial, the jury returned guilty verdicts on all counts. Subsequently, the trial court sentenced West to one hundred eighty days in jail, ordered him to pay a fine of three hundred fifty dollars and all costs of the proceedings, and suspended his license for five years retroactive to the date of the arrest on the offense of OVI as a second offense within six years. In addition, West was ordered to pay the mandatory penalty of a thirty dollar fine for failure to wear a seatbelt in violation of R.C.
{¶ 13} It is from this judgment West appeals, presenting the following assignments of error for our review:
{¶ 14} Due to the nature of appellant's assignments of error, we will review them out of order.
{¶ 16} R.C.
{¶ 17} R.C.
{¶ 18} Section
{¶ 19} The record reveals that West was cited for violating R.C.
{¶ 20} Accordingly, West's first assignment of error is overruled.
{¶ 22} It is well established that the Ohio speedy trial statute is mandatory, constitutional, and must be construed strictly against the state. See, e.g., State v. Singer (1977),
{¶ 23} R.C.
(A) Subject to division (D) of this section, a person againstwhom a charge is pending in a court not of record, or againstwhom a charge of minor misdemeanor is pending in a court ofrecord, shall be brought to trial within thirty days after theperson's arrest or the service of summons. (B) Subject to division (D) of this section, a person againstwhom a charge of misdemeanor, other than a minor misdemeanor, ispending in a court of record, shall be brought to trial asfollows:
* * *
(2) Within ninety days after the person's arrest or theservice of summons, if the offense charged is a misdemeanor ofthe first or second degree, or other misdemeanor for which themaximum penalty is imprisonment for more than sixty days. (D) Aperson against whom one or more charges of different degrees,whether felonies, misdemeanors, or combinations of felonies andmisdemeanors, all of which arose out of the same act ortransaction, are pending shall be brought to trial on all of thecharges within the time period required for the highest degree ofoffense charged, as determined under divisions (A), (B), and (C)of this section. (E) For purposes of computing time under divisions (A), (B),(C)(2), and (D) of this section, each day during which theaccused is held in jail in lieu of bail on the pending chargeshall be counted as three days.
{¶ 24} Our standard of review upon an appeal raising a speedy trial issue is to count the expired days as directed by R.C.
{¶ 25} The law in Ohio is that the right to a speedy trial time starts to run the day after arrest. R.C.
{¶ 26} Since West was charged with multiple misdemeanors, the most severe being a misdemeanor of the first degree, under R.C.
{¶ 27} On March 6, 2005, West was arrested and charged with multiple misdemeanors. On March 7, 2005, West posted bond and was released from jail. On March 9, 2005, West's retained attorney filed a time waiver. On October 14, 2005, West moved to dismiss as to the failure to provide a speedy trial, because the State failed to provide him with a bill of particulars and a disclosure of its intent to use evidence, which the trial court noted "should serve as the withdrawal of the defendant's waiver through his counsel of his right to a speedy trial." (October 26, 2005 Journal Entry). Additionally, on October 14, 2005, West moved to continue the trial, which was scheduled for October 24, 2005, because he was unable to attend the trial. On October 19, 2005, the trial court denied West's October 14, 2005 motion to continue, because West failed to show a justifiable basis for the continuance. On October 20, 2005, West amended his motion to continue to include the justification that the State's late response to his request for a bill of particulars and a statement as to the State's intent to use evidence would require the continuation of the trial. The trial court granted West's amended motion and continued the trial until November 14, 2005. On November 4, 2005, West moved again to continue the trial, which the trial court granted. The jury trial was rescheduled for January 9, 2006.
{¶ 28} Accordingly, in the time period between March 6 and March 9, 2005, West would be credited six days of speedy trial time for the time he was incarcerated, under R.C.
{¶ 29} Nevertheless, West asserts that our count of speedy trial time days would be incorrect. First, West asserts that his retained counsel's filing of a waiver of a speedy trial was invalid, because the waiver was against his wishes and without his consent. However, in State v. McBreen, the Ohio Supreme Court held "A defendant's right to be brought to trial within the time limits expressed in R.C.
{¶ 30} Secondly, West asserts that his filing on May 11, 2005 voided his retained counsel's waiver of speedy trial. In his filing, West claims that his personal filing included an explicit statement which reserved all of his rights and showed that he intended not to waive any rights, including his right to a speedy trial. Summarily overruling West's motion, the trial court noted, "The Ohio Supreme Court has ruled that a trial court does not have to permit such hybrid representation [where a person is acting as his own attorney and he also has counsel to represent him]. Either an accused acts as his own attorney or the accused has an attorney to represent him. He cannot have both at the same time." (May 13, 2005 Journal Entry). We agree with the trial court.
{¶ 31} As the Ohio Supreme Court stated in State v.Thompson, "Neither the United States Constitution, the Ohio Constitution nor case law mandates such a hybrid representation. * * * Although appellant has the right to appear pro se or to have counsel, he has no corresponding right to act as co-counsel on his own behalf." (1987),
{¶ 32} Finally, West asserts that the State's failure to provide a bill of particulars and a motion for disclosure of intent to use evidence in a timely manner denied his right to a speedy trial. We disagree.
{¶ 33} On March 10, 2005, West's retained counsel filed two motions, one requesting a bill of particulars and one requesting the State to disclose its intent to use evidence, which the trial court granted and ordered the State to provide both within ten days. Additionally, on October 6, 2005, the trial court reordered the State to provide West with a bill of particulars and a disclosure of its intent to use evidence. Finally, on October 18, 2005, the State provided West with the bill of particulars and a disclosure of its intent to use evidence.
{¶ 34} However, West fails to recognize that prior to the March 10, 2005 filing, he had effectively waived his right to a speedy trial on March 9, 2005. Additionally, West never explicitly withdrew the waiver of his right to a speedy trial after his trial counsel resigned in August of 2005. On October 26, 2005, the trial court found that West's October 14, 2005 motion to dismiss "should serve as the withdrawal of the defendant's waiver through his counsel of his right to a speedy trial." (October 26, 2005 Journal Entry). Accordingly, we find that the State's failure to provide the bill of particulars and to disclose its intent to use evidence did not violate his right to a speedy trial, because West had a valid waiver filed with the trial court.
{¶ 35} As noted above, since only fifteen days of the statutory ninety days had elapsed, the trial court correctly ruled that appellant's right to a speedy trial was not abridged.
{¶ 36} Accordingly, West's second assignment of error is overruled.
{¶ 38} As defined by the United States Supreme Court, a bill of attainder is "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial." Nixon v.Admr. of General Services (1977),
{¶ 39} R.C.
{¶ 40} Here, the administrative license suspension under R.C.
{¶ 41} The Double Jeopardy Clause of the
{¶ 42} In State v. Gustafson, the Ohio Supreme Court held:
1. The Double Jeopardy Clauses of the
{¶ 43} Having found that the administrative license suspension under R.C.
{¶ 45} Section
{¶ 46} In Boyland, the Ohio Supreme Court held, "Crim.R. 23(B), which provides that `[i]n misdemeanor cases juries shall consist of eight,' violates neither Section 5 nor Section
{¶ 47} In making its decision, the Ohio Supreme Court noted:
This court has previously stated that, in general terms,substantive law is that which creates duties, rights, andobligations, while procedural law prescribes the methods of theenforcement of those rights.
Crim.R. 23(B) in no way attempts to alter a defendant'ssubstantive constitutional right to a trial by jury. It merelyprescribes the method by which the substantive right is to beexercised. It is properly characterized as procedural in nature.The rule, therefore, was properly promulgated pursuant to thiscourt's rule-making authority pursuant to Section
{¶ 48} Accordingly, West's eighth assignment of error is overruled.
{¶ 50} Due to the nature of these assignments of error, we choose to address them together.
{¶ 51} We begin by noting that West failed to provide a copy of the transcript of the January 2006 jury trial. It is West's duty, as appellant, to order from the reporter the necessary portions of the transcript for our review. App.R. 9(B). In absence of a transcript, an appellate court is required to assume the regularity of the lower court's proceedings. Knapp v.Edwards Laboratories (1980),
{¶ 52} Because our review of West's third and sixth assignments of error would require us to review the transcript of the jury trial, we cannot find that the trial court erred in finding that the police officer's testimony was credible and in failing to declare a mistrial because of prosecutorial misconduct during its opening statement. Accordingly, West's third and sixth assignments of error are overruled.
{¶ 53} In his fourth assignment of error, West argues that the trial court erred in failing to suppress the police station video. However, West has also not included the police station video as part of the record. His argument on appeal is that the video evidence was immaterial to the charges against him. Without the videotape, West has no argument. It is West's responsibility to produce the record on appeal, including the parts of the record required to evaluate the assignments of error, and this Court will presume regularity of the proceedings of the lower court in the absence of a proper record on appeal. App.R. 9(B);State v. Estrada (1998),
{¶ 54} Accordingly, West's fourth assignment of error is overruled.
{¶ 56} Crim.R. 44 provides, in pertinent part:
(B) Where a defendant charged with a petty offense is unableto obtain counsel the court may assign counsel to represent him.When a defendant charged with a petty offense is unable to obtaincounsel, 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.
{¶ 57} Under Crim.R. 2(D), a petty offense is defined as any misdemeanor for which the maximum penalty under state law is imprisonment for six months or less. In the instant case, West was cited for among other things a violation of R.C.
{¶ 58} Because the underlying offense, in the case sub judice, was a "petty offense", Crim.R. 44(B) was applicable. Pursuant to that rule, the trial court could impose a term of imprisonment only under two circumstances: (1) appellant was actually represented by counsel during trial; or (2) appellant decided to represent himself and properly waived his right to counsel. State v. Mogul, 11th Dist. No. 2003-T-0178,
{¶ 59} The basic procedure for the waiver of counsel in a criminal action is delineated in Crim.R. 44(C), which simply states that such a waiver must be made in open court and must be recorded in the manner provided under Crim.R. 22. Crim.R. 22 provides that the waiver of counsel in "petty cases" should be recorded by means of shorthand, stenotype, or any other adequate mechanical device.
{¶ 60} In construing Crim.R. 44(C), the requirements of the rule must be applied consistent with the general principle that courts must indulge every reasonable presumption against the waiver of a fundamental constitutional right. City of GarfieldHeights v. Brewer (1984),
{¶ 61} As to the actual substance of the waiver, the courts of this state have held that a proper waiver can occur only when a trial court has given the defendant a sense of the inherent difficulties in attempting to represent himself throughout a criminal case. State v. Vordenberge,
{¶ 62} The record demonstrates that the trial court received written communication from West's hired attorneys submitting their resignation as counsel, because West advised them that he did not need their services as counsel. (Aug. 9, 2005 Journal Entry). Included in the trial court's entry, the trial court provided, "The case is ordered set for a final pretrial hearing [on August 18, 2005 at 1:45 p.m.] so that the court can discuss with the defendant his apparent choice to represent himself at trial and for the defendant to sign a waiver of his right to counsel." (Aug. 9, 2005 Journal Entry). However, the record demonstrates that the trial court never obtained a waiver of counsel from West. In so concluding, this Court is mindful that the record does not include a transcript of the August 18, 2005 pretrial hearing, during which the trial court was to discuss with West his choice to represent himself at trial. Additionally, the record does not include a written waiver of West's right to counsel.
{¶ 63} An appellant typically bears the burden of submitting to the court of review a record of the facts and findings that provide the basis for his appeal. Wray v. Parsson (1995),
{¶ 64} Accordingly, since the rules of procedure require a criminal defendant's waiver of counsel to be recorded and the law presumes that the waiver did not occur, it is incumbent upon the state to affirmatively demonstrate that the trial court complied with the rules surrounding the waiver of counsel. Dyer,
{¶ 65} Therefore, because there is no waiver evident in the record, we must conclude that West did not knowingly and intelligently waive his right to counsel. Based on the foregoing, West's assignment of error is sustained. The trial court did not obtain a knowing and intelligent waiver of West's right to counsel, and because counsel was not afforded to him Crim.R. 44(B) prohibits a sentence of confinement.
{¶ 66} Accordingly, West's fifth assignment of error is sustained and in accordance with Crim.R. 44(B), we modify the sentence by vacating the portion imposing a one hundred eighty day jail sentence.
{¶ 67} Having found error prejudicial to the appellant herein, in the particulars assigned and argued, in his fifth assignment of error, but having found no error prejudicial to the appellant herein, in the particulars assigned and argued in his first, second, third, fourth, sixth, seventh, and eighth assignments of error, we modify appellant's sentence by vacating the portion imposing a one hundred eighty day jail sentence, and as so modified, we affirm the judgment of conviction.
Judgment Vacated in Part And Affirmed in Part. Bryant, P.J., and Cupp, J., concurring separately.
Concurrence Opinion
{¶ 68} I concur with the majority's analysis as to Assignments of Error I through IV and VI through VIII. I also concur with the majority's result as to Assignment of Error V. However, I would limit the analysis by simply referring to our opinion in State v. Miyamoto, 3rd Dist. No. 14-05-43,
Cupp, J., concurs in the foregoing concurrence.
