STATE OF OHIO v. ANDRE M. YEAGER
C.A. Nos. 28604 28617
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
February 14, 2018
2018-Ohio-574
TEODOSIO, Presiding Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. CR-2016-07-2429-A CR-2016-11-3971
TEODOSIO, Presiding Judge.
{1} Defendant-Appellant, Andre Yeager, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms in part and reverses in part.
I.
{2} A grand jury indicted Mr. Yeager in two separate criminal cases. In Case No. 2016-07-2429(A), he was indicted on one count each of receiving stolen property, possessing criminal tools, obstructing official business, and driving under suspension. In Case No. 2016-11-3971, he was indicted on four counts of breaking and entering. A court-appointed attorney initially represented Mr. Yeager in both cases, but withdrew from representation when Mr. Yeager declared his intention to represent himself. The trial court ultimately accepted Mr. Yeager‘s decision to waive his right to counsel and later appointed stand-by counsel to assist him at trial.
{4} Mr. Yeager appealed his convictions in both cases, and this Court consolidated the two appeals for purposes of review and decision. Mr. Yeager raises six assignments of error for our review.
II.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT PERMITTED DEFENDANT TO PROCEED PRO SE WITHOUT SUBSTANTIALLY COMPLYING WITH CRIM.R. 44(A), AND IN VIOLATION OF SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION.
{5} In his first assignment of error, Mr. Yeager argues that the trial court violated
{6} The Sixth Amendment guarantees a defendant both the right to counsel and “the right to elect self-representation instead.” State v. Tucker, 9th Dist. Lorain No. 13CA010339, 2016-Ohio-1353, ¶ 11. A defendant who wishes to represent himself must knowingly, voluntarily, and intelligently waive his right to counsel. State v. Gibson, 45 Ohio St.2d 366
{7} In felony cases, a waiver of counsel must be made in open court, recorded, and in writing.
{8} Mr. Yeager had counsel for almost five months before he filed a pro se motion to represent himself. The court held a hearing on his motion the following week and, after permitting counsel to withdraw, spoke directly with Mr. Yeager. The court explained to Mr. Yeager the State‘s current plea offer, all of the charges against him, and the possible maximum sentences he faced. See id. The court also repeatedly emphasized that he would be “at a tremendous disadvantage” if he chose to represent himself because he would be responsible for knowing the rules of evidence and criminal procedure, identifying the issues, and raising any applicable defenses. The court offered to appoint new counsel for Mr. Yeager or to afford him more time to consider, but Mr. Yeager declined and indicated that he wished to represent himself. The court then asked Mr. Yeager whether he understood its warnings about self-representation and whether he understood that he would not receive “special consideration” if he chose to go forward without counsel. Each time the court inquired of Mr. Yeager, he indicated that he understood and wished to represent himself. The court, therefore, accepted Mr. Yeager‘s waiver of his right to counsel.
{9} The record reflects that the court did not strictly comply with
{10} Four months ultimately elapsed between Mr. Yeager‘s initial request to represent himself and his trial. During that time, he filed a wealth of motions pertaining to discovery, potential Brady v. Maryland violations, prosecutorial misconduct, and suppression. The court conducted multiple pre-trials and, at the majority of them, spoke to Mr. Yeager about his decision to waive counsel. The court informed Mr. Yeager that he was placing himself at a disadvantage by not having counsel who could locate witnesses, timely file the proper motions, and sort out discovery matters on his behalf. Nevertheless, Mr. Yeager repeatedly rejected the court‘s offer to appoint him new counsel.
{11} One month before trial, the court held another pretrial and once more encouraged Mr. Yeager to accept new counsel. The court noted that an attorney would not suffer from the same time and access restrictions that Mr. Yeager faced while incarcerated. The court also asked Mr. Yeager whether he had a high-level of confidence as far as examining witnesses and speaking with the jury because he would have to handle those matters himself if he chose not to have counsel. The court informed Mr. Yeager that, while he seemed “bright enough,” the court always discouraged lay people from representing themselves due to their unfamiliarity with the rules of evidence and procedure. During that conversation, the court explained to Mr. Yeager the concept of stand-by counsel and asked whether he would be willing to accept that option. Mr. Yeager ultimately agreed to stand-by counsel, but reiterated that he did not wish to accept the appointment of another attorney. Mr. Yeager represented to the court that “this [was] not [his] first time being pro se.”
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT ALLOWED THE DEFENDANT TO PROCEED TO TRIAL WITH HYBRID REPRESENTATION IN VIOLATION OF [THE] SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.
{14} Pursuant to
First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be “plain” within the meaning of
Crim.R. 52(B) , an error must be an “obvious” defect in the trial proceedings. * * * Third, the error must have affected “substantial rights” * * * [and] affected the outcome of the trial.
(Internal citations omitted.) State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Plain error “is to be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. “[T]he accused bears the burden of proof to demonstrate plain error on the record * * *” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459 ¶ 22.
{15} There “is no constitutional right to hybrid representation.” State v. Pinckney, 9th Dist. Summit No. 28201, 2017-Ohio-2836, ¶ 6. Accord State v. Jackson, 9th Dist. Summit Nos. 24463 & 24501, 2009-Ohio-4336, ¶ 13 (right to counsel and right to self-representation “are independent of each other and may not be asserted simultaneously“). That is because “situations may arise in a hybrid representation environment where the accused and his ‘co-counsel’ disagree on strategy, which witnesses to call, and other key trial issues.” State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 33. Certain issues such as waiver cannot be decided unless a court can determine “who [is] actually responsible for the conduct of the defense * * *.” State v. Rondon, 9th Dist. Summit No. 26637, 2013-Ohio-4175, ¶ 8, quoting Martin at ¶ 34.
{17} Mr. Yeager is correct that he had no right to hybrid-representation, and the trial court ought not to have allowed him to simultaneously assert his rights to counsel and self-representation. See Jackson at ¶ 13. Mr. Yeager has not explained, however, how any hybrid-representation he might have received in this matter affected the outcome of his trial. See Barnes, 94 Ohio St.3d at 27; State v. Capers, 9th Dist. Lorain No. 10CA009801, 2011-Ohio-2443, ¶ 14-15 (prejudice not demonstrated where defendant claimed plain error as a result of hybrid-representation). Though Mr. Yeager alleges plain error, he has not conducted any actual plain error analysis. See
{18} Mr. Yeager also argues within the context of this assignment of error that he received ineffective assistance of counsel as a result of the hybrid-representation he received. His captioned assignment of error does not concern ineffective assistance of counsel, however, and he also has not conducted any analysis with regard to that argument. See State v. Pleban, 9th Dist. Lorain No. 10CA009789, 2011-Ohio-3254, ¶ 41, quoting State v. Marzolf, 9th Dist. Summit No. 24459, 2009-Ohio-3001, ¶ 16 (“An appellant‘s captioned assignment of error ‘provides this Court with a roadmap on appeal and directs this Court‘s analysis.‘“);
ASSIGNMENT OF ERROR THREE
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN ASSESSING COURT COSTS AGAINST THE DEFENDANT WHEN IT WAIVED IMPOSITION OF THOSE COSTS AT SENTENCING.
{19} In his third assignment of error, Mr. Yeager argues that the trial court erred when it ordered him to pay court costs without first affording him an opportunity to seek a waiver of those costs. For the reasons that follow, we reject Mr. Yeager‘s assignment of error.
{20}
ASSIGNMENT OF ERROR FOUR
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY NOT AWARDING DEFENDANT ALL HIS JAIL-TIME CREDIT.
{21} In his fourth assignment of error, Mr. Yeager argues that the court committed plain error when it failed to award him all of his jail-time credit. According to Mr. Yeager, the trial court either should have awarded him an additional 41 days of credit or held a hearing on the issue. We reject Mr. Yeager‘s assignment of error.
{22} When sentencing an offender, a trial court must
[d]etermine, notify the offender of, and include in the sentencing entry the number of days that the offender has been confined for any reason arising out of the offense for which the offender is being sentenced and by which the department of rehabilitation and correction must reduce the stated prison term under [
R.C. 2967.191 ].
{24} According to Mr. Yeager, the trial court erred by not awarding him 170 days of credit or holding a hearing to determine the appropriate amount of credit. Because he did not object to the procedure the court employed, he is now limited to a claim of plain error. See State v. Watson, 9th Dist. Summit No. 28218, 2017-Ohio-7856, ¶ 14. We, therefore, incorporate the plain error standard set forth in the discussion of his second assignment of error.
{25} Mr. Yeager has not explained why the trial court erred by calculating his jail-time credit without first holding a hearing. A trial court need only conduct a hearing on jail-time credit “if one is requested.”
{26} Insofar as Mr. Yeager argues that he is entitled to 41 additional days of jail-time credit, we must conclude that he has not satisfied his burden of demonstrating plain error. See Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, at ¶ 22. Mr. Yeager claims, without citing any
{27} Apart from setting forth a blanket statement that he is entitled to additional credit, Mr. Yeager has made no attempt to point to any evidence tending to show that the court did not properly calculate his jail-time credit.1 This Court will not construct an argument on his behalf. See State v. Gordon, 9th Dist. Summit No. 28331, 2017-Ohio-7147, ¶ 43. Accordingly, we reject Mr. Yeager‘s argument that the court erred by awarding him 129 days of credit. See Watson, 2017-Ohio-7856, at ¶ 17. His fourth assignment of error is overruled.
ASSIGNMENT OF ERROR FIVE
THE TRIAL COURT COMMITTED REVERSIBLE (sic) IN ORDERING DEFENDANT TO PAY RESTITUTION WITHOUT MAKING AN ABILITY-TO-PAY FINDING AND WITHOUT GIVING THE DEFENDANT THE RIGHT TO CROSS-EXAMINE THE STATE‘S EVIDENCE.
{29}
Restitution may be based on “an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information” as long as the amount does not exceed the economic loss suffered by the victim as a result of the commission of the offense.
State v. Stevens, 9th Dist. Medina Nos. 16CA0033-M & 16CA0034-M, 2017-Ohio-5482, ¶ 17, quoting
{30} The record reflects and the State concedes that the trial court ordered Mr. Yeager to pay $14,928.18 in restitution without first considering his ability to pay. Because there is no indication in the record that the court actually considered his ability to pay, “the trial court committed plain error and must make a determination regarding [his] ability to pay restitution on remand.” Norris at ¶ 29. Mr. Yeager also argues that the court erred by not affording him an opportunity to cross-examine witnesses about the amount of restitution he owed. Given that this
ASSIGNMENT OF ERROR SIX
THE CUMULATIVE EFFECT OF THE TRIAL COURT‘S ERRORS DENIED DEFENDANT A FAIR TRIAL.
{31} In his sixth assignment of error, Mr. Yeager argues that cumulative error deprived him of his right to a fair trial. We disagree.
{32} Cumulative error exists only where the errors during trial actually “deprive[d] a defendant of the constitutional right to a fair trial.” State v. DeMarco, 31 Ohio St.3d 191 (1987), paragraph two of the syllabus. ““[T]here can be no such thing as an error-free, perfect trial, and * * * the Constitution does not guarantee such a trial.“” State v. Hill, 75 Ohio St.3d 195, 212 (1996), quoting United States v. Hasting, 461 U.S. 499, 508-509 (1983). To support a claim of cumulative error, there must be multiple instances of harmless error. State v. Garner, 74 Ohio St.3d 49, 64 (1995). “Because this Court did not find multiple instances of error, the cumulative error doctrine does not apply.” State v. Jamison, 9th Dist. Summit No. 27664, 2016-Ohio-5122, ¶ 40. Mr. Yeager‘s sixth assignment of error is overruled.
III.
{33} Mr. Yeager‘s fifth assignment of error is sustained, and his remaining assignments of error are overruled. On remand, the trial court must make a determination regarding Mr. Yeager‘s ability to pay restitution. The judgment of the Summit County Court of Common Pleas is affirmed in part, reversed in part, and the cause is remanded for further proceedings consistent with the foregoing opinion.
Judgment affirmed in part,
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
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 equally to both parties.
THOMAS A. TEODOSIO
FOR THE COURT
HENSAL, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.