[Cite as State v. Ott, 2017-Ohio-521.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27953
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE DANIEL C. OTT STOW MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellant CASE No. 2015CRB01521
DECISION AND JOURNAL ENTRY
Dated: February 15, 2017
HENSAL, Judge.
{¶1} Daniel Ott appeals a judgment of the Stow Municipal Court that convicted and
sentenced him for domestic violence. For the following reasons, this Court reverses.
I.
{¶2} A Tallmadge police officer charged Mr. Ott with domestic violence for allegedly
throwing the mother of his child to the floor and ripping her shirt. Following a trial in which Mr.
Ott represented himself, the municipal court found him guilty of the offense and sentenced him
to 180 days in jail, which it suspended. Mr. Ott has appealed, assigning three errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT DID NOT ENGAGE IN THE RECORDED COLLOQUY CRIM.R. 44(C) REQUIRES BEFORE ALLOWING OTT TO PROCEED TO TRIAL PRO SE, THEREBY DENYING HIM COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. 2
{¶3} Mr. Ott argues that the municipal court did not comply with Criminal Rule 44
when it accepted his waiver of counsel. Rule 44 sets out requirements regarding the assignment
of counsel, which are different depending on whether the defendant has been charged with a
serious or petty offense. The domestic violence offense that Mr. Ott faced was a misdemeanor of
the first degree, for which he could receive up to 180 days in jail. It, therefore, was a petty
offense under Criminal Rule 2. Crim.R. 2(C), (D); State v. Johnson, 9th Dist. Summit No.
27550, 2016-Ohio-480, ¶ 6. Under Criminal Rule 44(B), “[if] 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.”
{¶4} At a pretrial hearing, the municipal court noted that Mr. Ott did not have counsel.
It advised him that he had the right to a lawyer and that, if he could not afford one, one would be
appointed to represent him. The court also told Mr. Ott that, if he represented himself, it would
be his duty to subpoena any witnesses that he desired to call at trial. It further told him that, if he
wanted a lawyer to represent him, he should get one as soon as possible because the trial date
would be arriving quickly. At trial, the court merely noted that Mr. Ott would be representing
himself and that it had had a conversation with Mr. Ott about the trial process and the fact that he
would be subject to the rules of evidence.
{¶5} The Ohio Supreme Court has held that a defendant has the right of self-
representation and “that he 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 (1976),
paragraph one of the syllabus. “In order to establish an effective waiver of right to counsel, the
trial court must make sufficient inquiry to determine whether defendant fully understands and 3
intelligently relinquishes that right.” Id. at paragraph two of the syllabus. Part of that inquiry
includes determining whether “the defendant was advised of the dangers and disadvantages of
self-representation.” State v. Hunter, 9th Dist. Lorain No. 10CA009903, 2012-Ohio-1121, ¶ 14,
see Faretta v. California, 422 U.S. 806, 835 (1975). “This is because, ‘[w]hen an accused
manages his own defense, he relinquishes, as a purely factual matter, many of the traditional
benefits associated with the right to counsel.’” State v. Dowey, 9th Dist. Summit No. 25963,
2012-Ohio-4915, ¶ 3, quoting Faretta at 835. We review whether a defendant has made a
knowing, voluntary, and intelligent waiver of his right to counsel de novo. State v. Alexander,
4th Dist. Ross No. 15CA3492, 2016-Ohio-5015, ¶ 4; State v. Griffin, 10th Dist. Franklin No.
10AP-902, 2011-Ohio-4250, ¶ 26.
{¶6} Upon review of the record, there is no indication that the trial court explained to
Mr. Ott “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[.]” State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶
43; Gibson at 377, quoting Von Moltke v. Gillies, 332 U.S. 708, 723 (1948). Accordingly, we
cannot say that he knowingly and intelligently waived his right to counsel. See Martin at ¶ 45.
{¶7} The State argues that, if this Court concludes that Mr. Ott did not properly waive
his right to counsel, the remedy is to remove the term of incarceration from his sentence. Mr.
Ott, on the other hand, argues that his conviction must be reversed, and his case remanded for a
new trial. In the past, this Court has ordered both remedies, depending on the particular
circumstances of the case. See State v. Knight, 9th Dist. Lorain No. 11CA010034, 2012-Ohio-
5816, ¶ 16 (vacating jail term); City of Cuyahoga Falls v. Hurd, 9th Dist. Summit No. 26657,
2013-Ohio-3512, ¶ 14 (reversing and remanding for a new trial). Since our most recent decision 4
on this issue, however, the Supreme Court has provided additional guidance about the extent of a
defendant’s right to counsel under Ohio law. In State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-
1519, the Court held that an adjudication of delinquency may not be used to enhance the penalty
for a later offense if the adjudication carried the possibility of confinement, it was uncounseled,
and there was no effective waiver of the right to counsel. Id. at syllabus. It explained that the
mere possibility of confinement determines whether counsel is necessary in a particular case and
concluded that Mr. Bode’s “uncounseled adjudication amounted to an unconstitutional violation
of his due-process rights.” Id. at ¶ 24.
{¶8} Applying Bode to the facts of this case, we conclude that Mr. Ott’s conviction
must be reversed and this case remanded for a new trial. See id.; State v. Wamsley, 5th Dist.
Ashland No. 15-COA-030, 2016-Ohio-2885, ¶ 24 (“If the conviction is unconstitutional for
elevation purposes, it cannot be allowed to stand as constitutional for conviction purposes.”)
(Emphasis sic.) Mr. Ott’s first assignment of error is sustained. In light of our disposition of the
first assignment of error, we conclude that Mr. Ott’s remaining assignments of error are not ripe
for consideration.
III.
{¶9} Mr. Ott’s first assignment of error is sustained. The judgment of the Stow
Municipal Court is reversed, and this matter is remanded for further proceedings consistent with
this decision.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal. 5
We order that a special mandate issue out of this Court, directing the Stow Municipal
Court, 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 App.R. 27.
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[Cite as State v. Ott, 2017-Ohio-521.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27953
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE DANIEL C. OTT STOW MUNICIPAL COURT COUNTY OF SUMMIT, OHIO Appellant CASE No. 2015CRB01521
DECISION AND JOURNAL ENTRY
Dated: February 15, 2017
HENSAL, Judge.
{¶1} Daniel Ott appeals a judgment of the Stow Municipal Court that convicted and
sentenced him for domestic violence. For the following reasons, this Court reverses.
I.
{¶2} A Tallmadge police officer charged Mr. Ott with domestic violence for allegedly
throwing the mother of his child to the floor and ripping her shirt. Following a trial in which Mr.
Ott represented himself, the municipal court found him guilty of the offense and sentenced him
to 180 days in jail, which it suspended. Mr. Ott has appealed, assigning three errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT DID NOT ENGAGE IN THE RECORDED COLLOQUY CRIM.R. 44(C) REQUIRES BEFORE ALLOWING OTT TO PROCEED TO TRIAL PRO SE, THEREBY DENYING HIM COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. 2
{¶3} Mr. Ott argues that the municipal court did not comply with Criminal Rule 44
when it accepted his waiver of counsel. Rule 44 sets out requirements regarding the assignment
of counsel, which are different depending on whether the defendant has been charged with a
serious or petty offense. The domestic violence offense that Mr. Ott faced was a misdemeanor of
the first degree, for which he could receive up to 180 days in jail. It, therefore, was a petty
offense under Criminal Rule 2. Crim.R. 2(C), (D); State v. Johnson, 9th Dist. Summit No.
27550, 2016-Ohio-480, ¶ 6. Under Criminal Rule 44(B), “[if] 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.”
{¶4} At a pretrial hearing, the municipal court noted that Mr. Ott did not have counsel.
It advised him that he had the right to a lawyer and that, if he could not afford one, one would be
appointed to represent him. The court also told Mr. Ott that, if he represented himself, it would
be his duty to subpoena any witnesses that he desired to call at trial. It further told him that, if he
wanted a lawyer to represent him, he should get one as soon as possible because the trial date
would be arriving quickly. At trial, the court merely noted that Mr. Ott would be representing
himself and that it had had a conversation with Mr. Ott about the trial process and the fact that he
would be subject to the rules of evidence.
{¶5} The Ohio Supreme Court has held that a defendant has the right of self-
representation and “that he 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 (1976),
paragraph one of the syllabus. “In order to establish an effective waiver of right to counsel, the
trial court must make sufficient inquiry to determine whether defendant fully understands and 3
intelligently relinquishes that right.” Id. at paragraph two of the syllabus. Part of that inquiry
includes determining whether “the defendant was advised of the dangers and disadvantages of
self-representation.” State v. Hunter, 9th Dist. Lorain No. 10CA009903, 2012-Ohio-1121, ¶ 14,
see Faretta v. California, 422 U.S. 806, 835 (1975). “This is because, ‘[w]hen an accused
manages his own defense, he relinquishes, as a purely factual matter, many of the traditional
benefits associated with the right to counsel.’” State v. Dowey, 9th Dist. Summit No. 25963,
2012-Ohio-4915, ¶ 3, quoting Faretta at 835. We review whether a defendant has made a
knowing, voluntary, and intelligent waiver of his right to counsel de novo. State v. Alexander,
4th Dist. Ross No. 15CA3492, 2016-Ohio-5015, ¶ 4; State v. Griffin, 10th Dist. Franklin No.
10AP-902, 2011-Ohio-4250, ¶ 26.
{¶6} Upon review of the record, there is no indication that the trial court explained to
Mr. Ott “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[.]” State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶
43; Gibson at 377, quoting Von Moltke v. Gillies, 332 U.S. 708, 723 (1948). Accordingly, we
cannot say that he knowingly and intelligently waived his right to counsel. See Martin at ¶ 45.
{¶7} The State argues that, if this Court concludes that Mr. Ott did not properly waive
his right to counsel, the remedy is to remove the term of incarceration from his sentence. Mr.
Ott, on the other hand, argues that his conviction must be reversed, and his case remanded for a
new trial. In the past, this Court has ordered both remedies, depending on the particular
circumstances of the case. See State v. Knight, 9th Dist. Lorain No. 11CA010034, 2012-Ohio-
5816, ¶ 16 (vacating jail term); City of Cuyahoga Falls v. Hurd, 9th Dist. Summit No. 26657,
2013-Ohio-3512, ¶ 14 (reversing and remanding for a new trial). Since our most recent decision 4
on this issue, however, the Supreme Court has provided additional guidance about the extent of a
defendant’s right to counsel under Ohio law. In State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-
1519, the Court held that an adjudication of delinquency may not be used to enhance the penalty
for a later offense if the adjudication carried the possibility of confinement, it was uncounseled,
and there was no effective waiver of the right to counsel. Id. at syllabus. It explained that the
mere possibility of confinement determines whether counsel is necessary in a particular case and
concluded that Mr. Bode’s “uncounseled adjudication amounted to an unconstitutional violation
of his due-process rights.” Id. at ¶ 24.
{¶8} Applying Bode to the facts of this case, we conclude that Mr. Ott’s conviction
must be reversed and this case remanded for a new trial. See id.; State v. Wamsley, 5th Dist.
Ashland No. 15-COA-030, 2016-Ohio-2885, ¶ 24 (“If the conviction is unconstitutional for
elevation purposes, it cannot be allowed to stand as constitutional for conviction purposes.”)
(Emphasis sic.) Mr. Ott’s first assignment of error is sustained. In light of our disposition of the
first assignment of error, we conclude that Mr. Ott’s remaining assignments of error are not ripe
for consideration.
III.
{¶9} Mr. Ott’s first assignment of error is sustained. The judgment of the Stow
Municipal Court is reversed, and this matter is remanded for further proceedings consistent with
this decision.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal. 5
We order that a special mandate issue out of this Court, directing the Stow Municipal
Court, 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 App.R. 27.
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. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
JENNIFER HENSAL FOR THE COURT
CARR, P. J. CONCURS.
SCHAFER, J. CONCURRING.
{¶10} I agree with the Majority’s analysis and resolution of Mr. Ott’s first assignment of
error. I write separately, however, to emphasize that since the right to counsel is a constitutional
right, “strict compliance with the advisement and waiver requirements is mandatory.” State v.
Wamsley, 5th Dist. Ashland No. 15-COA-030, 2016-Ohio-2885, ¶ 10. As the trial court did not
strictly comply with the waiver requirements by sufficiently inquiring into whether Mr. Ott fully
understood and intelligently relinquished his right to counsel, I agree that Mr. Ott did not 6
knowingly and intelligently waive his Sixth Amendment right to counsel and that his conviction
and sentence must be vacated.
{¶11} Lastly, with respect to the Majority’s citation to State v. Bode, 144 Ohio St.3d
155, 2015-Ohio-1519, I wish to clarify that the facts and procedural posture of Bode are much
less relevant to the resolution of the present matter than the Supreme Court of Ohio’s explicit
holding in that case. See id. at ¶ 24 (holding that the “possibility of confinement” “determines
whether counsel is necessary in a particular case” under Ohio law), citing State v. Schleiger, 141
Ohio St.3d 67, 2014-Ohio-3970.
APPEARANCES:
JACQUENETTE S. CORGAN, Attorney at Law, for Appellant.
MEGAN E. RABER, Director of Law, and JOHN A. SCAVELLI, JR., Assistant Director of Law, for Appellee.