[Cite as State v. Morrison,
2012-Ohio-2154.]
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-29
DONALD MORRISON :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Cambridge
Municipal Court, Case Nos. 11CRB00080
and 11TRD000440
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: May 14, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM H. FERGUSON GREGORY W. MEYERS
Law Director Sr. 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-2154.]
Gwin, P.J.
{¶1} On January 23, 2011, appellant Donald Morrison was arrested and
charged with obstructing official business, resisting arrest, and speeding after a traffic
stop. His brother Grant Morrison was in the front passenger seat. Donald Morrison and
Grant Morrison were both charged out of this incident.1 He entered pleas of not guilty.
Initially, he asked for and received appointed counsel. At a hearing on May 26, 2011,
his appointed counsel was converted to "standby counsel," and the court allowed
Donald to represent himself. Donald and Grant's cases were consolidated for trial. Both
waived jury trials. Their cases proceeded to a bench trial on August 4, 2011.
{¶2} Donald was convicted of obstructing official business, resisting arrest, and
speeding. He was sentenced to serve twenty days in jail on the obstructing charge, with
seventy days suspended for twelve months of unsupervised probation; and ten days
concurrent on the resisting arrest charge.2
ASSIGNMENTS OF ERROR
{¶3} Donald raises three assignments of error,
{¶4} “I. APPELLANT DONALD MORRISON'S CONSTITUTIONAL RIGHTS
WERE VIOLATED WHEN THE TRIAL COURT, AFTER FIRST APPOINTING
COUNSEL, ALLOWED DONALD TO REPRESENT HIMSELF WITHOUT FIRST
ENSURING THAT HE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVED
HIS RIGHT TO COUNSEL, AND THAT HE DID SO WITH A CONSTITUTIONALLY
1
Grant Morrison has filed a separate appeal in Case No. 11CA000030.
2
A Statement of the Facts underlying Donald’s original conviction is unnecessary to our
disposition of this appeal. Any facts needed to clarify the issues addressed in Donald’s assignments of
error shall be contained therein.
Guernsey County, Case No. 11-CA-29 3
ADEQUATE UNDERSTANDING OF THE RISKS HE FACED BY REPRESENTING
HIMSELF AT TRIAL.
{¶5} “II. APPELLANT DONALD MORRISON'S CONSTITUTIONAL RIGHTS
WERE VIOLATED WHEN THE TRIAL COURT FOUND HIM GUILTY OF
OBSTRUCTING OFFICIAL BUSINESS BASED ON EVIDENCE THAT WAS
INSUFFICIENT TO SUSTAIN A GUILTY VERDICT, AND WHEN THE GUILTY
FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶6} “III. APPELLANT DONALD MORRISON'S CONSTITUTIONAL RIGHTS
WERE VIOLATED WHEN THE TRIAL COURT FOUND HIM GUILTY OF RESISTING
ARREST BASED ON EVIDENCE THAT WAS INSUFFICIENT TO SUSTAIN A GUILTY
VERDICT, AND WHEN THE GUILTY FINDING WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
ANALYSIS
I.
{¶7} In his first assignment of error, Donald 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.
{¶8} 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.
Guernsey County, Case No. 11-CA-29 4
{¶9} 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.
{¶10} 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.
{¶11} Crim.R. 44 states:
(B) Counsel in petty offenses
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.
Guernsey County, Case No. 11-CA-29 5
(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.”
{¶12} Crim.R. 22 provides that “in petty offense cases all waivers of counsel
required by Rule 44(B) shall be recorded.” (Emphasis added.)
{¶13} “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.
{¶14} 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-
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.
{¶15} 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
Guernsey County, Case No. 11-CA-29 6
has no corresponding right to act as co-counsel on his own behalf.” State v.
Thompson (1987),
33 Ohio St.3d 1, 6-7,
514 N.E.2d 407(1987); State v. Martin, ¶32
(reaffirming this principal).
{¶16} 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 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.
{¶17} In all cases where the right to counsel is waived, the court "must make
sufficient inquiry to determine whether 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.
{¶18} 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
Guernsey County, Case No. 11-CA-29 7
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.
{¶19} Gibson, supra, at 376-377, citing Von Moltke v. Gillies,
332 U.S. 708, 723,
68 S.Ct. 316, 323(1948).
{¶20} 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
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
Guernsey County, Case No. 11-CA-29 8
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.
{¶21} 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 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
Guernsey County, Case No. 11-CA-29 9
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
adequately establish an effective waiver of counsel. State v. McQueen
(1997), 124 Ohio App.3d 444, 447,
706 N.E.2d 423.
Bumphus, ¶ 13.
{¶22} 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
Guernsey County, Case No. 11-CA-29 10
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 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
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
Guernsey County, Case No. 11-CA-29 11
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.
{¶23} Upon our review of the May 26, 2011 exchange at which the trial court
decided to allow Donald to represent himself, shifting his appointed counsel to "standby"
status, we find no evidence demonstrating that (1) Donald 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 Donald of the nature of the charges and the range of allowable
punishments, and in addition, the possible defenses to the charges and applicable
mitigating circumstances, prior to accepting Donald’s waiver of counsel.
{¶24} Donald’s first assignment of error is sustained.
II. & III
{¶25} Based upon our analysis and disposition of Donald's first assignment of
error, we find appellant's second and third assignments of error premature.
Guernsey County, Case No. 11-CA-29 12
CONCLUSION
{¶26} Because the trial court did not adequately determine that Donald
knowingly, intelligently, and voluntarily waived his right to counsel and failed to
adequately warn Donald of the dangers and disadvantages of self-representation,
Donald’s first assignment of error is sustained.
{¶27} 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 0501
[Cite as State v. Morrison, 2012-Ohio-2154.]
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
DONALD MORRISON :
:
:
Defendant-Appellant : CASE NO. 11-CA-29
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.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER
_________________________________
HON. JULIE A. EDWARDS
