[Cite as State v. Bristow, 2020-Ohio-3999.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2020 CA 0006 LONNY BRISTOW
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Mansfield Municipal Court, Case No. 2019CRB05423
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: August 4, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. STUDENMUND, ESQ. LONNY BRISTOW Renwick, Welsh & Burton, LLC P.O. Box 557 9 North Mulberry Street Smithville, Ohio 44667 Mansfield, Ohio 44902 Richland County, Case No. 2020 CA 0006 2
Hoffman, P.J. {¶1} Appellant Lonny Lee Bristow appeals the judgment entered by the
Mansfield Municipal Court convicting him of trespassing (R.C. 2911.21) following his plea
of no contest and sentencing him to 30 days incarceration, with all days suspended upon
condition of no criminal violations for two years (with the exception of minor misdemeanor
traffic offenses), and fining him $250. Appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On May 30, 2019, Appellant was charged with trespassing and criminal
mischief in the Ontario Mayor’s Court. He entered pleas of not guilty to the charges and
filed a jury demand. The case was transferred to the Mansfield Municipal Court.
{¶3} According to the bill of particulars, on May 25, 2019, Appellant drove his car
on the yard of a residence in Ontario, Ohio. He walked on to the front porch and began
pounding on the door. Appellant’s cousin resided in the home. Appellant’s cousin had
texted him at least twice in April and May of 2019, asking Appellant to leave her alone.
Ontario police officers told Appellant on both May 23 and May 24, 2019, to not contact
her.
{¶4} After the case was transferred to Mansfield Municipal Court, Appellant
entered a plea of no contest to the charge of trespassing. A nolle prosequi was entered
on the charge of criminal mischief. Appellant was convicted as charged and sentenced
to 30 days incarceration, with all days suspended upon condition of no criminal violations
for two years (with the exception of minor misdemeanor traffic offenses), and fined $250.
{¶5} It is from the January 8, 2020 judgment of conviction and sentence
Appellant prosecutes this appeal, assigning as error: Richland County, Case No. 2020 CA 0006 3
I. THE TRIAL COURT COMMITTED REVERSIBLE AND
PREJUDICIAL ERROR AND LACKED JURISDICTION IN ORDERING
THIS APPELLANT TO NOTIFY THE TRIAL COURT IF APPELLANT
CHANGED HIS NAME WITHIN TEN DAYS AFTER DOING SO.
II. APPELLANT’S REPRESENTATION OF HIMSELF VIOLATED
HIS STATE AND FEDERALLY PROTECTED CONSTITUTIONAL RIGHT
TO COUNSEL BECAUSE APPELLANT NEVER SIGNED A WAIVER OF
COUNSEL, NEVER HAD A WAIVER OF COUNSEL HEARING, AND
THERE WAS NO COLLOQUY TO INSURE APPELLANT’S
REPRESENTATION OF HIMSELF WAS KNOWINGLY, INTELLIGENTLY
AND VOLUNTARY.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
DENYING APPELLANT’S MOTION TO DISMISS THE TRESPASSING
CHARGE AS FACIALLY INVALID UNDER OHIO LAW.
IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
CHARGE AS NOT LEGALLY SUSTAINABLE UNDER OHIO LAW.
II.
{¶6} We address Appellant’s second assignment of error first, as it is dispositive
of the appeal. Appellant argues the record does not demonstrate he made a knowing,
intelligent, and voluntary waiver of counsel. We agree. Richland County, Case No. 2020 CA 0006 4
{¶7} The Sixth Amendment to the United States Constitution and Section 10,
Article I of the Ohio Constitution provide a criminal defendant has a right to counsel.
However, a criminal defendant also has the constitutional right to waive counsel and to
represent himself or herself at trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45
L.Ed.2d 562 (1975). In such a situation, “the Constitution * * * require[s] that any waiver
of the right to counsel be knowing, voluntary, and intelligent * * *.” Iowa v. Tovar, 541 U.S.
77, 87-88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), Crim.R. 44(A). “In order to establish
an effective waiver of [the] right to counsel, the trial court must make sufficient inquiry to
determine whether [the] defendant fully understands and intelligently relinquishes that
right.” State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph two of the
syllabus. The defendant must make an intelligent and voluntary waiver with the
knowledge he will have to represent himself, and the dangers inherent in self-
representation. State v. Ebersole, 107 Ohio App.3d 288, 293, 668 N.E.2d 934 (3rd Dist.
Hancock 1995), citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562
(1975).
{¶8} Because courts indulge every reasonable presumption against a waiver of
fundamental constitutional rights, waiver of counsel must affirmatively appear on the
record. City of Garfield Hts. v. Brewer, 17 Ohio App.3d 216, 217, 479 N.E.2d 309, 311–
12 (8th Dist. Cuyahoga 1984). A knowing and intelligent waiver will not be presumed from
a silent record. Id., citing Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8
L.Ed.2d 70 (1962).
{¶9} This Court has previously discussed what must appear in the record to
demonstrate a valid waiver of counsel: Richland County, Case No. 2020 CA 0006 5
In Gibson, supra, the Ohio Supreme Court applied the test set forth
in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948),
which established the requirements for a sufficient pretrial inquiry by the trial
court into a waiver of counsel:
To be valid such waiver must be made with an 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 facts essential to a broad
understanding of the whole matter. A judge can make certain that an
accused's professed waiver of counsel is understandingly and wisely made
only from a penetrating and comprehensive examination of all the
circumstances under which such a plea is tendered.
State v. Gibson, 45 Ohio St.2d 366, 377, 345 N.E.2d 399 (1976).
{¶10} State v. Newman, 5th Dist. Stark No. 2017CA00219, 2018-Ohio-3253, ¶¶
17-18.
{¶11} On November 9, 2019, Appellant appeared before the court for a hearing
on various motions he had filed in this case, as well as to enter a plea on an unrelated
case. At the outset of the hearing, the trial court stated:
THE COURT: Mr. Bristow, on that particular matter you’re
representing yourself in this matter; is that correct?
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Bristow, 2020-Ohio-3999.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J. -vs- Case No. 2020 CA 0006 LONNY BRISTOW
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Mansfield Municipal Court, Case No. 2019CRB05423
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: August 4, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. STUDENMUND, ESQ. LONNY BRISTOW Renwick, Welsh & Burton, LLC P.O. Box 557 9 North Mulberry Street Smithville, Ohio 44667 Mansfield, Ohio 44902 Richland County, Case No. 2020 CA 0006 2
Hoffman, P.J. {¶1} Appellant Lonny Lee Bristow appeals the judgment entered by the
Mansfield Municipal Court convicting him of trespassing (R.C. 2911.21) following his plea
of no contest and sentencing him to 30 days incarceration, with all days suspended upon
condition of no criminal violations for two years (with the exception of minor misdemeanor
traffic offenses), and fining him $250. Appellee is the state of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On May 30, 2019, Appellant was charged with trespassing and criminal
mischief in the Ontario Mayor’s Court. He entered pleas of not guilty to the charges and
filed a jury demand. The case was transferred to the Mansfield Municipal Court.
{¶3} According to the bill of particulars, on May 25, 2019, Appellant drove his car
on the yard of a residence in Ontario, Ohio. He walked on to the front porch and began
pounding on the door. Appellant’s cousin resided in the home. Appellant’s cousin had
texted him at least twice in April and May of 2019, asking Appellant to leave her alone.
Ontario police officers told Appellant on both May 23 and May 24, 2019, to not contact
her.
{¶4} After the case was transferred to Mansfield Municipal Court, Appellant
entered a plea of no contest to the charge of trespassing. A nolle prosequi was entered
on the charge of criminal mischief. Appellant was convicted as charged and sentenced
to 30 days incarceration, with all days suspended upon condition of no criminal violations
for two years (with the exception of minor misdemeanor traffic offenses), and fined $250.
{¶5} It is from the January 8, 2020 judgment of conviction and sentence
Appellant prosecutes this appeal, assigning as error: Richland County, Case No. 2020 CA 0006 3
I. THE TRIAL COURT COMMITTED REVERSIBLE AND
PREJUDICIAL ERROR AND LACKED JURISDICTION IN ORDERING
THIS APPELLANT TO NOTIFY THE TRIAL COURT IF APPELLANT
CHANGED HIS NAME WITHIN TEN DAYS AFTER DOING SO.
II. APPELLANT’S REPRESENTATION OF HIMSELF VIOLATED
HIS STATE AND FEDERALLY PROTECTED CONSTITUTIONAL RIGHT
TO COUNSEL BECAUSE APPELLANT NEVER SIGNED A WAIVER OF
COUNSEL, NEVER HAD A WAIVER OF COUNSEL HEARING, AND
THERE WAS NO COLLOQUY TO INSURE APPELLANT’S
REPRESENTATION OF HIMSELF WAS KNOWINGLY, INTELLIGENTLY
AND VOLUNTARY.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
DENYING APPELLANT’S MOTION TO DISMISS THE TRESPASSING
CHARGE AS FACIALLY INVALID UNDER OHIO LAW.
IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
CHARGE AS NOT LEGALLY SUSTAINABLE UNDER OHIO LAW.
II.
{¶6} We address Appellant’s second assignment of error first, as it is dispositive
of the appeal. Appellant argues the record does not demonstrate he made a knowing,
intelligent, and voluntary waiver of counsel. We agree. Richland County, Case No. 2020 CA 0006 4
{¶7} The Sixth Amendment to the United States Constitution and Section 10,
Article I of the Ohio Constitution provide a criminal defendant has a right to counsel.
However, a criminal defendant also has the constitutional right to waive counsel and to
represent himself or herself at trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45
L.Ed.2d 562 (1975). In such a situation, “the Constitution * * * require[s] that any waiver
of the right to counsel be knowing, voluntary, and intelligent * * *.” Iowa v. Tovar, 541 U.S.
77, 87-88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), Crim.R. 44(A). “In order to establish
an effective waiver of [the] right to counsel, the trial court must make sufficient inquiry to
determine whether [the] defendant fully understands and intelligently relinquishes that
right.” State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph two of the
syllabus. The defendant must make an intelligent and voluntary waiver with the
knowledge he will have to represent himself, and the dangers inherent in self-
representation. State v. Ebersole, 107 Ohio App.3d 288, 293, 668 N.E.2d 934 (3rd Dist.
Hancock 1995), citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562
(1975).
{¶8} Because courts indulge every reasonable presumption against a waiver of
fundamental constitutional rights, waiver of counsel must affirmatively appear on the
record. City of Garfield Hts. v. Brewer, 17 Ohio App.3d 216, 217, 479 N.E.2d 309, 311–
12 (8th Dist. Cuyahoga 1984). A knowing and intelligent waiver will not be presumed from
a silent record. Id., citing Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8
L.Ed.2d 70 (1962).
{¶9} This Court has previously discussed what must appear in the record to
demonstrate a valid waiver of counsel: Richland County, Case No. 2020 CA 0006 5
In Gibson, supra, the Ohio Supreme Court applied the test set forth
in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948),
which established the requirements for a sufficient pretrial inquiry by the trial
court into a waiver of counsel:
To be valid such waiver must be made with an 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 facts essential to a broad
understanding of the whole matter. A judge can make certain that an
accused's professed waiver of counsel is understandingly and wisely made
only from a penetrating and comprehensive examination of all the
circumstances under which such a plea is tendered.
State v. Gibson, 45 Ohio St.2d 366, 377, 345 N.E.2d 399 (1976).
{¶10} State v. Newman, 5th Dist. Stark No. 2017CA00219, 2018-Ohio-3253, ¶¶
17-18.
{¶11} On November 9, 2019, Appellant appeared before the court for a hearing
on various motions he had filed in this case, as well as to enter a plea on an unrelated
case. At the outset of the hearing, the trial court stated:
THE COURT: Mr. Bristow, on that particular matter you’re
representing yourself in this matter; is that correct?
MR. BRISTOW: Yes, Your Honor, it is. Richland County, Case No. 2020 CA 0006 6
{¶12} Tr. (11/9/19) 3.
{¶13} On January 8, 2020, Appellant appeared before the court for a change of
plea hearing. Appellant entered a plea of no contest, after which the court made a finding
of guilty and pronounced sentence from the bench. Subsequent to sentencing, the
following colloquy occurred:
MR. STUDENMUND: Your Honor, sorry to interrupt. I think it’s
probably prudent to have the Record reflect that Mr. Bristow is representing
himself and he’s waived his right to counsel throughout the entire
proceeding also.
MR. BRISTOW: Yes, that is correct, Your Honor.
THE COURT: Yeah. And you understand you waive your right to
have as, as was previously done, waves the right to have Court appointed
counsel or the right to choose your own attorney should you desire to hire
one?
MR. BRISTOW: Yes, Your Honor.
THE COURT: And you waive that?
MR. BRISTOW: Yes.
{¶14} Tr. (1/8/20) 27.
{¶15} We find this colloquy does not sufficiently demonstrate Appellant’s decision
to waive counsel was made with “apprehension of the nature of the charges, the statutory
offenses included within them, the range of allowable punishments thereunder, possible Richland County, Case No. 2020 CA 0006 7
defenses to the charges and circumstances in mitigation thereof, and all other facts
essential to a broad understanding of the whole matter” as required by the United States
Supreme Court in Von Moltke, supra, and the Ohio Supreme Court in Gibson, supra.
Further, this limited colloquy occurred subsequent to Appellant’s change in plea, the trial
court’s finding of guilt, and oral pronouncement of sentence.
{¶16} The State relies on Appellant’s active engagement in plea negotiations on
the record in this case, which the State argues demonstrates Appellant possessed the
understanding required for his waiver of counsel to be knowing and intelligent. In State
v. Ngaka, 5th Dist. Delaware No. 19 CAC 09051, 2020-Ohio-3106, the State relied heavily
on Ms. Ngaka’s employment as a paralegal at a law firm to demonstrate the validity of
her waiver of counsel. We held the nature of her employment did not relieve the trial court
of its constitutional duty to undertake a “penetrating and comprehensive examination of
all the circumstances” under which the decision to waive counsel was made. Id. at ¶16.
Likewise, we find Appellant’s ability to engage in plea negotiations on his own behalf did
not relieve the trial court of its duty to engage Appellant in the constitutionally-mandated
examination to ensure his waiver of counsel was knowing, intelligent, and voluntary.
{¶17} The second assignment of error is sustained.
{¶18} Appellant’s remaining assignments of error are rendered premature by our
decision on his second assignment of error. Richland County, Case No. 2020 CA 0006 8
{¶19} The judgment of the Mansfield Municipal Court is reversed and this case is
remanded for further proceedings according to law and consistent with this opinion.
By: Hoffman, P.J. Delaney, J. and Wise, Earle, J. concur