State v. Furr

Ohio Court of Appeals

State v. Furr

2018 Ohio 2205

CourtOhio Court of Appeals

DecidedJune 8, 2018

DocketC-170046

StatusPublished

Cited by15 cases

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Bluebook

State v. Furr, 2018 Ohio 2205 (Ohio Ct. App. 2018).

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Opinion

[Cite as State v. Furr, 2018-Ohio-2205.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-170046 TRIAL NO. B-1601520 Plaintiff-Appellee, :

vs. : O P I N I O N.

KONO FURR, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 8, 2018

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

MYERS, Presiding Judge.

{¶1} Kono Furr appeals his convictions for burglary and possessing

criminal tools. He argues that the court should not have let him represent himself

and should not have allowed him to appear before the jury in his jail clothing. We

conclude that his assignments of error have no merit, so we affirm the trial court’s

judgment.

Right to Counsel

{¶2} In his first assignment of error, Furr argues that the trial court

committed structural error and violated his right to counsel by failing to have

counsel present at all stages of the proceedings, including the court’s hearings on his

waiver of counsel. In his second assignment of error, Furr argues that the court

committed structural error by discharging counsel before Furr made a clear and

unequivocal request to represent himself. Because both arguments allege structural

error involving the deprivation of counsel, we discuss them together.

{¶3} The structural-error doctrine exists “to ensure insistence on certain

basic, constitutional guarantees that should define the framework of any criminal

trial.” Weaver v. Massachusetts, ___ U.S. ___, 137 S.Ct. 1899, 1907, 198 L.Ed.2d

420 (2017). A structural error is a constitutional error of such magnitude that it

“affect[s] the framework within which the trial proceeds.” Arizona v. Fulminante,

499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Because a structural error

is deemed prejudicial per se, it requires an automatic reversal. State v. Davis, 127

Ohio St.3d 268, 2010-Ohio-5706, 939 N.E.2d 147, ¶ 22.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} Consistent with the presumption that most constitutional errors are

not structural, structural errors have been recognized only in a very limited class of

cases. State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 18;

Johnson v. United States, 520 U.S. 461, 468-469, 117 S.Ct. 1544, 137 L.Ed.2d 718

(1997). As relevant to this appeal, structural errors have been found in cases

involving the complete denial of counsel, see Gideon v. Wainwright, 372 U.S. 335,

83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and the denial of the right to self-representation,

see McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984).

{¶5} A criminal defendant’s right to counsel during critical stages of the

prosecution is guaranteed by the Sixth Amendment of the United States

Constitution, made applicable to the states through the Fourteenth Amendment, and

by Article I, Section 10, of the Ohio Constitution. Gideon at 342; State v. Martin, 103

Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227. The right to counsel “implicitly

embodies a ‘correlative right to dispense with a lawyer’s help.’ ” Martin at ¶ 23,

quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87

L.E.2d 268 (1942). The right to represent oneself “is thwarted when counsel is

forced upon an unwilling defendant, who alone bears the risks of a potential

conviction.” State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93,

¶ 26, citing Faretta v. California, 422 U.S. 806, 819-820, 95 S.Ct. 2525, 45 L.Ed.2d

52 (1975).

{¶6} Both the United States Supreme Court and the Supreme Court of Ohio

have recognized a criminal defendant’s right to defend herself or himself at trial

without counsel when the defendant knowingly, intelligently, and voluntarily

chooses to do so. See Faretta at 819-820; State v. Gibson, 45 Ohio St.2d 366, 377,

3 OHIO FIRST DISTRICT COURT OF APPEALS

345 N.E.2d 399 (1976). The defendant’s decision to waive the right to counsel need

not itself be counseled. See Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079,

173 L.Ed.2d 955 (2009).

{¶7} In Ohio, Crim.R. 44 governs the procedure for waiver of counsel in

“serious offense” cases. Under Crim.R. 44(A), where a defendant charged with a

serious offense is unable to obtain counsel, counsel must be assigned to represent the

defendant at all stages of the proceedings, unless the defendant, after being fully

advised of the right to counsel, knowingly, intelligently, and voluntarily waives the

right to counsel. In addition, in a serious-offense case, the waiver of counsel must be

in writing. See Crim.R. 44(C). A “serious offense” includes any felony. See Crim.R.

2(C).

{¶8} The written waiver provision of Crim.R. 44(C) is not a constitutional

requirement, so a trial court needs only to substantially comply with Crim.R. 44(A).

See Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, at ¶ 38.

Substantial compliance with Crim.R. 44(A) is demonstrated where the trial court

made a sufficient inquiry to determine whether the defendant fully understood and

intelligently relinquished the right to counsel. Id. at ¶ 39. If the court substantially

complies with Crim.R. 44(A), the failure to file a written waiver is harmless error. Id.

{¶9} The trial court should explain to the defendant “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.” Gibson, 45 Ohio St.2d at 377, 345 N.E.2d 399, quoting Von Moltke v.

Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309 (1948). In addition, the court

4 OHIO FIRST DISTRICT COURT OF APPEALS

should explain that the defendant “will be required to follow the same rules of

procedure and evidence which normally govern the conduct of a trial.” State v.

Vordenberge, 128 Ohio App.3d 488, 2002-Ohio-1612, 774 N.E.2d 278, ¶ 12 (1st

Dist.), quoting State v. Doane, 69 Ohio App.3d 638, 646-647, 591 N.E.2d 735 (11th

Dist.1990).

{¶10} The assertion of the right to self-representation must be clear and

unequivocal. State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112,

¶ 72.

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