Toledo v. BlackshearToledo v. Blackshear
State of Ohio/City of Toledo Appellee v. Ishmial Blackshear Appellant
DECISION AND JUDGMENT
Decided: March 31, 2020
David Toska, Chief Prosecutor, and Jimmie Jones, Assistant Prosecutor, for appellee.
Emil G. Gravelle III, for appellant.
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MAYLE, J.
{1} Appellant, Ishmial Blackshear Bey1, appeals the May 10, 2019 judgment of the Toledo Municipal Court convicting him of one count of operating a vehicle while intoxicated. For the following reasons, we affirm the judgment of the trial court.
{2} The facts underlying this appeal are not in dispute.2 On August 28, 2017, appellant was arraigned on onе count of driving while under the influence of alcohol (“OVI“) in violation of
{3} Bey appealed his conviction arguing the trial court failed to properly advise him of the dangers of proceeding at trial without the assistance of counsel. On February 22, 2019, we reversed Bey‘s conviction finding that while Bey consistently expressed his desire to reprеsent himself, the trial court failed to conduct the necessary pretrial colloquy “to ensure that Bey understood the dangers and disadvantages of self-representation.” Blackshear at ¶ 25. The failure to engage in this colloquy prevented appellant from knowingly, intelligently, and voluntarily waiving his right to the assistance of counsel at trial and rendered his conviction invalid under the
{4} While his initial appeal was pending, Bey was charged with driving while under a license suspension in violation of
{5} On that same date, Bey filed a “Judicial Notice of Notice of Special Appearance” in which he advised the trial court of his intent to enter a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970). Then, at the pretrial, appellant renewed his desire to enter an Alford plea but also described it as a no contest plea. The court explained the difference between the two pleas to Bey and allowed him to speak with the public defender to help answer any questions he may have. After speaking with the public defender, Bey confirmed his understanding of the difference between a no contest plea and an Alford plea, and reaffirmed his desire to enter an Alford plea.
{6} Next, the court explained the charge to which Bey was entering his plea—the OVI—and that as a result of his plea, the state was dismissing the additional charges of driving while under suspension and driving with an expired registration. The court also explained the potential penalties resulting from entering an Alford plea to the OVI
{7} Finally, the court explained to Bey that he had the right to the assistance of counsel in entering his plea. Bey stated that he wished to proceed without counsel but declined to waive his right to counsel. The court explained that he could not accept Bey‘s plea unless he either agreed to the representation of a court-appointed counsel or wаived his right to counsel. Bey continued to ask the trial court to move forward with the plea hearing but refused to accept appointed counsel or waive his right to counsel. After a lengthy discussion, the trial judge stated that he decided to recuse himself because he was unable to effectively communicate with Bey. A recusal order was filed later that day and the matter was assigned a different judge.
{8} The сourt set the matter for a new pretrial, before the newly-assigned judge, on April 17, 2019. One day before the pretrial, Bey again filed a “Judicial Notice of Notice of Special Appearance” in which he announced his intention to enter an Alford plea. At the pretrial, Bey again stated that he wished to enter an Alford plea to the OVI charge. Just as the previous judge had done, the court advised Bеy of the parameters of an Alford plea and its distinction from a no contest plea. The court also advised Bey that by entering his chosen plea he would be waiving his right to a trial and the right to confront any witnesses presented against him. Bey was also advised that entering an
{9} Finally, the court advised Bey of his right to counsel. Bey was adamant that he wished to proceed without counsel in entering an Alford plea but declined to waive his right to counsel. The court asked Bey if his eyes were wide open “with regards to the hazards of proceeding, on your own, and without an attorney?” Bey responded “[y]es, they are. And the hazards of having an attorney is also wide open.” The court cоncluded that Bey had been sufficiently advised of his right to counsel and that he had waived that right.
{10} Following the discussion of Bey‘s rights, the state proceeded to describe the evidence it expected would be introduced at trial in support of the OVI charge. The court then explained to Bey that the state had provided a statement of the facts it expected to prove at trial and that if Bey entered аn Alford plea he would determine whether Bey was guilty based on those facts. Bey affirmed his understanding of the process and entered a guilty plea pursuant to Alford. The court then asked Bey if he wished to make any additional statements before it issued its finding of guilt. Bey responded “[o]nly the retention of all my rights; constitutional and through the state of Ohio.” The court found Bey guilty of operating a vehicle while under the influence of drugs or alcohol in violation of
{12} Bey timely appealed the trial court‘s judgment and asserts the following assignments of error for our review:
- The trial court erred and deprived Mr. Bey of his right to counsel under the Sixth and Fourteenth Amendments of the United States Constitution and Section 10, Article 1 of the Ohio Constitution as the court failed to ensure that Mr. Bey had made a voluntary, knowing, and intelligent waiver of his right to counsel.
- The trial court erred when it failed to substantially comply with Criminal Rule 11(E).
- He trial court erred when it failed to determine if Mr. Bey‘s Alford plea had been voluntarily and intelligently made.
A. Bey voluntarily, knowingly, and intelligently waived his right to counsel.
{13} Bey‘s first assignment of error alleges he did not voluntarily, knowingly, or intelligently waive his right to counsel before entering his plea. Bey argues that this ineffective waiver of his right to counsel renders his conviction invalid. We review whether a defendant voluntarily, knowingly, and intelligently waived his or her right to counsel de novo. State v. Reece, 6th Dist. Lucas No. L-17-1314, 2019-Ohio-2259, ¶ 14.
{14} Criminal defendants are guaranteed the right to counsel at all critical stages of the criminal process under thе
{15} There is а strong presumption against finding that a defendant has waived his or her right to counsel. Reece at ¶ 9. “In order to establish an effective waiver of
{16} Moreover, while there is a strong presumption against finding a defendant waived their right to counsel, the defendant‘s right to counsel “must bе considered along with the need for the efficient and effective administration of criminal justice.” State v. Hook, 33 Ohio App.3d 101, 514 N.E.2d 721 (10th Dist.1986), citing U.S. v. Weninger, 624 F.2d 163, 166 (10th Cir.1980). “A defendant may not be permitted to be reasonably
{17} Turning to the facts of this case, we review the specific exchanges between Bey and the court at the April 3 and April 17 hearings.
{18} At the April 3, 2019 hearing, the court advised Bey of the difference between an Alford plea and a no contest plea after Bey‘s statements indicated confusion on that issue. The court provided appointed counsel to Bey for the limited purpose of assisting in explaining the difference between two types of pleas. Once that confusion was resolved, the court went through each potential penalty that could be imposed should Bey proceed with his Alford plea and be found guilty of the OVI charge. Finally, with regard to Bey‘s right to counsel, the court engaged in the following exchange:
THE COURT: So under the statute
THE DEFENDANT: No. I‘m not waiving any rights of mine. I want all of them.
THE COURT: Okay, well I can‘t accept your guilty plea, right now, if you are not waiving your right to an attorney. Do you wish to have additional time to come back with an attorney? Do you want the public defender assigned to you?
THE DEFENDANT: No. I don‘t – why would – why would I need an attorney? I‘m a grown man. Why would I need an attorney?
THE COURT: I didn‘t say you need an attorney. I said you‘ve got the right to an аttorney.
THE DEFENDANT: Exactly. So I‘m saying that I don‘t want one. Why would I have to waive it? It‘s mine. I‘m not waiving anything. I‘m just saying that I don‘t need one. I simply don‘t need a lawyer. I wrote this out –
THE COURT: If you intend to proceed, without an attorney, you‘d be waiving that right.
THE DEFENDANT: Okay. If you need the attorney you can utilize him. I‘m reserving all of my rights, but if you need to utilize him that‘s fine. As long as it don‘t impeach any of my rights, I‘m fine.
THE DEFENDANT: Exactly.
THE COURT: It doesn‘t make a difference to me.
THE DEFENDANT: Okay.
THE COURT: But again, if you‘re proceeding, without an attorney, -- right now you‘re saying you don‘t want one. That would be, in fact, a waiver of your right to an attorney.
THE DEFENDANT: Not a waiver. It‘s me saying that I don‘t want to use an attorney. I don‘t want to waive my right just because I don‘t want to use an attorney. I don‘t want – I don‘t want one.
* * *
THE COURT: Okay. So you want to proceed, but you‘re not saying you want to waive your right to an attorney; is that what I hear?
THE DEFENDANT: I don‘t want to waive any of my rights.
THE COURT: Okay.
THE DEFENDANT: I don‘t want to go around waiving my rights. I don‘t want to do that.
{19} Following this exchange, the judge recused himself and a different judge was assigned. On April 17, 2019, the court held a second plea hearing before the newly-assigned judge, and the following exchange occurred:
THE DEFENDANT: Proceed on my own.
THE COURT: Okay. And you understand, by doing that, you are waiving your constitutional right to an attorney, correct?
THE DEFENDANT: I‘m just not using it. I‘m not waiving it, I‘m just not using it.
THE COURT: Okay. * * * Are your eyes wide open to the hazards of proceeding, on your own, and without an attorney?
THE DEFENDANT: Yes, they are. And the hazards of having an attorney is wide open also.
{21} First, the court made Bey aware of the nature of the charges he was facing and the range of allowable punishments thereunder, which is an important prerequisite for any valid waiver of one‘s right to counsel. Gibson, 45 Ohio St.2d at 377, quoting Von Moltke, 332 U.S. 708 at 723. And Bey confirmed to the trial court that he understood the penalties associated with a conviction.
{22} Next, when we consider “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, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, at ¶ 101, we find that there are important distinctions between this appeal and his previous appeal, Blackshear, 6th Dist. Lucas No. L-18-1103, 2019-Ohio-655, which we cannot ignore. In his previous appeal, we considered whether the court had secured a voluntary, knowing, and intelligent waiver of Bey‘s right to counsel before trial—which implicated additional considerations not at issue now, such as the fact that the defendant “will be required to follow the same rules of procedure and evidence which normally govern the conduct of a trial.” Blackshear at ¶ 21, quoting State v. Furr, 1st Hamilton Dist. No. C-170046, 2018-Ohio-2205, ¶ 9. In addition, we find that Bey‘s prior experience with legal proceedings—including his previous appeal—suggests to us that he is more familiar than the average litigant with the disadvantages of proceeding without
{23} Most importantly, considering the “total circumstances of this case“—including but not limited to the “conduct of the accused person“—we find that this case presents a rare situation in which a waiver may be inferred because Bey is “reasonаbly perceived as taking advantage of the trial court by claiming his right to counsel in order to frustrate or delay the judicial process.” Hook, 33 Ohio App.3d at 103, 514 N.E.2d 721. Throughout both hearings, Bey repeatedly stated that he did not “need” or “want” a lawyer, but simultaneously refused to acknowledge that he was “waiving” his right to an attorney. Despite Bey‘s obstinance, the trial court provided Bey with enough information to make an intelligent election tо proceed with his Alford plea without the assistance of counsel, and Bey did, in fact, freely and intelligently elect to waive his right to counsel by stating that he did not “need” or “want” a lawyer.
{24} We therefore find that Bey voluntarily, knowingly, and intelligently waived his right to counsel, and his first assignment of error is found not well-taken.
B. Bey voluntarily, knowingly, and intelligently entered his Alford plea.
{25} Bey‘s second assignment or error alleges that the trial court failеd to comply with
{27} Under
{29} Here, the record shows that the court advised Bey that his Alford plea would constitute his consent to being found guilty. Specifically, the court stated “by entering a plea, you would be consenting to being found guilty. And I would then find you guilty, of the Driving Under the Influence charge, and we would proceed to sentencing.” We find this statement advised Bey of the effect of his chosen plea and substantially complied with the requirements of
{30} Additionally, we note that a trial court does not necessarily need to inform the defendant of the effect of his guilty plea at the same hearing at which the plea is entered. Everson at ¶ 10, citing Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, at ¶ 20, fn. 3. While we have already determined that the trial court substantially complied with
{31} In sum, given that the trial court complied with
III. Conclusion
{32} For the foregoing reasons, we find Bey‘s assignments of error not well-taken. We therefore affirm the May 10, 2019 judgment of the Toledo Municipal Court. Bey is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Christine E. Mayle, J.
Gene A. Zmuda, P.J.
CONCUR.
JUDGE
JUDGE
JUDGE
This dеcision 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/.