State v. Morrison

2012 Ohio 2155

• Court: Ohio Court of Appeals
• Decided: May 14, 2012
• Docket: 11-CA-30
• Status: Published

Opinion

[Cite as State v. Morrison, 2012-Ohio-2155.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Sheila G. Farmer, J. Plaintiff-Appellee : Hon. Julie A. Edwards, J. : -vs- : : Case No. 11-CA-30 GRANT MORRISON : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Cambridge Municipal Court, Case Nos. 11CRB00082 and 11TRD000435

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT ENTRY: May 14, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

WILLIAM H. FERGUSON JASON A. MACKE Law Director Assistant Public Defender City of Cambridge 250 East Broad Street, Ste. 1400 150 Highland, Ste. 2 Columbus, OH 43215 Cambridge, OH 43725 [Cite as State v. Morrison, 2012-Ohio-2155.]

Gwin, P.J.

{¶1} On January 23, 2011, appellant Grant Morrison was charged with a safety

belt violation, obstructing official business, and resisting arrest as a result of a traffic

stop. Grant’s brother Donald Morrison was driving and Grant was in the front passenger

seat.1

{¶2} Grant was subsequently arraigned and was assigned appointed counsel.

Grant discussed the case with his appointed counsel. His appointed counsel determined

he could not in good faith advance some of the legal arguments that Grant wanted him

to advance. Accordingly, appointed counsel filed a motion to withdraw and proceed as

standby counsel. That motion, along with several motions filed pro se by Grant came on

for hearing on May 4, 2011.

{¶3} The trial court engaged in a limited colloquy with Grant, explaining that he

had a right to appointed counsel, that he had a right to represent himself if he desired,

and that he did not have a right to a "hybrid arrangement.” On May 4, 2011, Grant

represented himself during the trial court’s evidentiary hearing on his motion to

suppress.

{¶4} On August 3, 2011, the day before the scheduled date set for the jury trial

the trial court overruled all of Grant’s pro se motions. Donald and Grant's cases were

consolidated for trial. Both waived jury trials. Their cases proceeded to a bench trial on

August 4, 2011.

1 Donald Morrison has filed a separate appeal in Case No. 11CA000029 Guernsey County, Case No. 11-CA-30 3

{¶5} Grant was convicted of obstructing official business and resisting arrest,

both second-degree misdemeanors. He was sentenced to serve a total of twenty days

incarceration with seventy days suspended and one year of unsupervised probation2.

ASSIGNMENTS OF ERROR

{¶6} Grant raises two assignments of error,

{¶7} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANT BY ACCEPTING A WAIVER OF COUNSEL THAT WAS NOT

KNOWING, INTELLIGENT, AND VOLUNTARY IN VIOLATION OF STATE V. MARTIN,

103 OHIO ST.3D 385, 2004-OHIO-5471, 816 N.E.2D 227, AND FARETTA V.

CALIFORNIA, 422 U.S. 806, 95 S. CT. 2525, 45 L.ED.2D 562 (1975).

{¶8} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE

DEFENDANT BY CONVICTING HIM OF OBSTRUCTING OFFICIAL BUSINESS AND

RESISTING ARREST BASED UPON INSUFFICIENT EVIDENCE IN VIOLATION OF

STATE V. JENKS, 61 OHIO ST.3D 259, 574 N.E.2D 492 (1991), AND JACKSON V.

VIRGINIA, 443 U.S. 307, 99 S.CT. 2781, 61 L.ED.2D 560 (1979).”

ANALYSIS

I.

{¶9} In his first assignment of error, Grant asserts the trial court violated his

right to counsel by failing to obtain a valid waiver of counsel and by failing to advise him

of the dangers of self-representation. We agree.

2 A Statement of the Facts underlying Grant’s original conviction is unnecessary to our disposition of this appeal. Any facts needed to clarify the issues addressed in Grant’s assignments of error shall be contained therein. Guernsey County, Case No. 11-CA-30 4

{¶10} The Sixth Amendment to the United States Constitution provides “In all

criminal prosecutions, the accused shall * * * have the Assistance of Counsel for his

defense.” Similarly, the Ohio Constitution provides, “In any trial, in any court, the party

accused shall be allowed to appear and defend in person and with counsel.” Ohio

Constitution, Article I, Section 10.

{¶11} However, the United States Supreme Court has also recognized that the

Sixth Amendment right to the assistance of counsel implicitly embodies a “correlative

right to dispense with a lawyer's help.” Adams v. United States ex rel. McCann, 317

U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942). The court clarified this right to

proceed without counsel in the landmark case of Faretta v. California, 422 U.S. 806, 95

S.Ct. 2525, 45 L.Ed.2d 562(1975). “Although not stated in the Amendment in so many

words, the right to self-representation—to make one's own defense personally—is thus

necessarily implied by the structure of the Amendment. The right to defend is given

directly to the accused; for it is he who suffers the consequences if the defense fails.”

(Footnote omitted.) Id. at 819–820, 95 S.Ct. 2525, 45 L.Ed.2d 562.

{¶12} Likewise, the Ohio Supreme Court has concluded that “a defendant in a

state criminal trial has an independent constitutional right of self-representation and * * *

may proceed to defend himself without counsel when he voluntarily, and knowingly and

intelligently elects to do so.” State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d

399(1976), paragraph one of the syllabus, citing Faretta.

{¶13} Crim.R. 44 states:

(B) Counsel in petty offenses Guernsey County, Case No. 11-CA-30 5

Where a defendant charged with a petty offense is unable to obtain

counsel, the court may assign counsel to represent him. When a

defendant charged with a petty offense is unable to obtain counsel, 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.

(C) Waiver of counsel

Waiver of counsel shall be in open court and the advice and waiver

shall be recorded as provided in Rule 22. In addition, in serious offense

cases the waiver shall be in writing.”

{¶14} Crim.R. 22 provides that “in petty offense cases all waivers of counsel

required by Rule 44(B) shall be recorded.”

{¶15} “At the very least, then, any waiver of counsel must be made on the record

in open court, and in cases involving serious offenses where the penalty includes

confinement for more than six months, the waiver must also be in writing and filed with

the court.” State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024 ¶

24.

{¶16} Once the right to counsel is properly waived, trial courts are permitted to

appoint standby counsel to assist the otherwise pro se defendant. The U.S. Supreme

Court first illustrated the idea of “standby counsel,” in a footnote in Faretta v. California,

“Of course, a State may—even over objection by the accused—appoint a ‘standby

counsel’ to aid the accused if and when the accused requests help, and to be available

to represent the accused in the event that termination of the defendant's self- Guernsey County, Case No. 11-CA-30 6

representation is necessary.” Faretta, 422 U.S. at 834, 95 S.Ct. 2525, 45 L.Ed.2d 562,

fn. 46. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶28.

{¶17} The Ohio Supreme Court has held that “[n]either the United States

Constitution, the Ohio Constitution nor case law mandates * * * hybrid representation.

See McKaskle v. Wiggins, 465 U.S. 168 [104 S.Ct. 944, 79 L.Ed.2d 122

(1984)]. Although appellant has the right either to appear pro se or to have counsel, he

has no corresponding right to act as co-counsel on his own behalf.” State v. Thompson,

33 Ohio St.3d 1, 6-7, 514 N.E.2d 407(1987); State v. Martin, ¶32 (reaffirming this

principal).

{¶18} As the Ohio Supreme Court held in State v. Wellman, 37 Ohio St.2d 162,

309 N.E.2d 915(1974), “[p]resuming a waiver of the Sixth Amendment right of an

accused to the assistance of counsel from a silent record is impermissible. The record

must show, or there must be an allegation and evidence which shows, that an accused

was offered counsel but intelligently and understandingly rejected the offer. Anything

less is not a waiver. (Carnley v. Cochran, 369 U.S. 506 [82 S.Ct. 884, 8 L.Ed.2d 70],

followed.)” Id. at paragraph two of the syllabus.

{¶19} In all cases where the right to counsel is waived, the 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. “For a petty offense, voluntary and knowing waiver may

be shown through the court's colloquy with the defendant.” Brooke, supra at ¶ 54. Guernsey County, Case No. 11-CA-30 7

{¶20} In Gibson supra, the Ohio Supreme Court held a trial court must provide

sufficient warning to the defendant of the seriousness of the trial and the possible

results it could have for his liberty and life. The Court stated:

This protecting duty imposes the serious and weighty responsibility

upon the trial judge of determining whether there is an intelligent and

competent waiver by the accused. To discharge this duty properly in light

of the strong presumption against waiver of the constitutional right to

counsel, a judge must investigate as long and as thoroughly as the

circumstances of the case before him demand. The fact that an accused

may tell him that he is informed of his right to counsel and desires to waive

this right does not automatically end the judge's responsibility. 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.

Gibson, supra, at 376-377, citing Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316,

323(1948).

{¶21} In State v. Martin, supra the Ohio Supreme Court held a defendant must

be adequately advised of the perils of self-representation, stating:

“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 Guernsey County, Case No. 11-CA-30 8

charges and circumstances in mitigation thereof, and all other facts

essential to a broad understanding of the whole matter.” [Gibson] at 377,

74 O.O. 2d 525, 345 N.E. 2d 399, quoting Von Moltke v. Gillies (1948),

332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309.

***

The trial court cautioned Martin at times that it would be best if

Martin were represented by counsel (“I would caution you against

abandoning your lawyers but that's your choice”). But the court did not

adequately explain the nature of the charges, the statutory offenses

included within them, the range of allowable punishments, possible

defenses, mitigation, or other facts essential to a broad understanding of

the whole matter, per Von Moltke, 332 U.S. at 724, 68 S.Ct. 316, 92 L.Ed.

309, and Gibson, 45 Ohio St. 2d at 377, 74 O.O. 2d 525, 345 N.E. 2d 399.

We therefore conclude that Martin was not “made aware of the

dangers and disadvantages of self-representation' so that the record

established that ‘he [knew] what he [was] doing and his choice [was] made

with eyes open.’ Faretta, 422 U.S. at 835, 95 S.Ct. 2525, 45 L.Ed.2d 562,

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

236, 87 L.Ed. 268. If the court had properly complied with these

requirements and had clearly advised Martin that he had no right to be

“co-counsel” and that his only choices were to proceed pro se or with

counsel, Martin may have made a different choice.

Martin, supra, ¶40-42. Guernsey County, Case No. 11-CA-30 9

{¶22} In State v. Bumphus, 6th Dist. No. E-03-043, 2005-Ohio-536, the Sixth

District Court of Appeals, addressed this issue, holding:

To establish an effective waiver of right to counsel, the trial court

must make sufficient inquiry to determine whether the defendant fully

understands and intelligently relinquishes that right.' Gibson, paragraph

two of the syllabus. ‘To be valid [a defendant's] waiver [of counsel] must

be made with an apprehension of the nature of the charges, the statutory

offense 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.’ Martin, supra, at ¶ 40, citing Gibson, supra, at 377, 345

N.E. 2d 399 and quoting Von Moltke v. Gillies (1948), 332 U.S. 708, 723,

68 S.Ct. 316, 92 L.Ed. 309. ‘A judge can make certain that accused's

professed waiver of counsel is understandingly and wisely made only from

a penetrating and comprehensive examination of all of the circumstances

under which such a plea is tendered.’ Von Moltke, supra, at 724. ‘The

determination of whether there has been an intelligent waiver of right to

counsel must depend, in each case, upon the particular facts and

circumstances surrounding that case, including the background,

experience, and conduct of the accused.’ Johnson v. Zerbst (1938), 304

U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461. A sketchy or minimal inquiry

touching upon only some of the above-enumerated factors will not Guernsey County, Case No. 11-CA-30 10

adequately establish an effective waiver of counsel. State v. McQueen

(1997), 124 Ohio App.3d 444, 447, 706 N.E.2d 423.

Bumphus, ¶ 13.

{¶23} Similarly, the Ninth District held in State v. Yeager, 9th Dist. No. 21510,

2005-Ohio-4932:

However, ‘[c]ourts are to indulge every reasonable presumption

against the waiver of a fundamental constitutional right including the right

to be represented by counsel.’ (Citations omitted.) State v. Dyer (1996),

117 Ohio App.3d 92, 95, 689 N.E .2d 1034. Accordingly, ‘a valid waiver

affirmatively must appear in the record, and the State bears the burden of

overcoming the presumption against a valid waiver.’ State v. Martin

(“Martin I ”), 8th Dist. No. 80198, 2003-Ohio-1499, at ¶ 8, citing Dyer, 117

Ohio App.3d at 95, 689 N.E.2d 1034. ‘ In order to establish an effective

waiver of right to counsel, the trial court must make sufficient inquiry to

determine whether the defendant fully understands and intelligently

relinquishes that right.’ Gibson, 45 Ohio St.2d at paragraph two of the

syllabus.

In determining the adequacy of the trial court's inquiry in the context

of a defendant's waiver of counsel, this Court reviews the totality of the

circumstances. State v. Ragle, 9th Dist. No. 22137, 2005-Ohio-590, at ¶

12. In assuring that a waiver of counsel is made knowingly, voluntarily,

and intelligently, a trial court should advise the defendant of the dangers

and disadvantages of self-representation. See Gibson, 45 Ohio St. 2d at Guernsey County, Case No. 11-CA-30 11

377, 345 N.E. 2d 399. See, also, Faretta, 422 U .S. at 835; State v. Weiss

(1993), 92 Ohio App.3d 681, 686, 637 N .E.2d 47. While no one factor is

determinative, the trial court should advise the defendant of the nature of

the charges and the range of allowable punishments, and, in addition,

advise the defendant of the possible defenses to the charges and

applicable mitigating circumstances. See Gibson, 45 Ohio St. 2d at 377,

345 N.E. 2d 399, citing Von Moltke v. Gillies (1948), 332 U.S. 708, 723, 68

S.Ct. 316, 92 L.Ed. 309. However, this Court has held that the trial court's

discussion of possible defenses and mitigating circumstances need not be

fact specific. State v. Trikilis, 9th Dist. Nos. 04CA0096-M & 04CA0097-M,

2005-Ohio-4266, at ¶ 13, citing Ragle at ¶ 12. ‘[A] broader discussion of

defenses and mitigating circumstances as applicable to the pending

charges is sufficient.’ Trikilis at ¶ 13. In addition, a court may consider

various other factors, including the defendant's age, education, and legal

experience in determining that a waiver of counsel is made knowingly,

voluntarily, and intelligently. Id., citing State v. Doane (1990), 69 Ohio

App.3d 638, 647, 591 N.E.2d 735.

Yeager, ¶ 7-8.

{¶24} Upon our review of the record, we find no evidence demonstrating that

Grant (1) knowingly, intelligently, and voluntarily waived his right to counsel; or (2) that

the trial court advised him of the dangers of self-representation in the context of the

nature of the charges, the penalties, or potential defenses. As discussed in our analysis

of Ohio case law, the trial court should have advised Grant of the nature of the charges Guernsey County, Case No. 11-CA-30 12

and the range of allowable punishments, and in addition, the possible defenses to the

charges and applicable mitigating circumstances, prior to accepting Grant’s waiver of

counsel.

{¶25} Grant’s first assignment of error is sustained.

II.

{¶26} Based upon our analysis and disposition of Grant's first assignment of

error, we find Grant’s second assignments of error premature.

CONCLUSION

{¶27} Because the trial court did not adequately determine that Grant knowingly,

intelligently, and voluntarily waived his right to counsel and failed to adequately warn

Grant of the dangers and disadvantages of self-representation, Grant’s first assignment

of error is sustained. Guernsey County, Case No. 11-CA-30 13

{¶28} Accordingly, the judgment of the Cambridge Municipal Court, Guernsey

County, Ohio is reversed, and the cause remanded to the trial court for further

proceedings in accordance with the law and this opinion.

By Gwin, P.J.,

Farmer, J., and

Edwards, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. SHEILA G. FARMER

_________________________________ HON. JULIE A. EDWARDS

WSG:clw 0502 [Cite as State v. Morrison, 2012-Ohio-2155.]

IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : GRANT MORRISON : : : Defendant-Appellant : CASE NO. 11-CA-30

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Cambridge Municipal Court, Guernsey County, Ohio is reversed, and

the cause remanded to the trial court for further proceedings in accordance with the law

and this opinion. Costs to appellee.