State v. Guess

[Cite as State v. Guess, 2014-Ohio-771.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY

State of Ohio, : Case No. 11CA33

Plaintiff-Appellee, :

v. : DECISION AND JUDGMENT ENTRY

Bo Guess, :

Defendant-Appellant. : RELEASED: 02/24/2014

_____________________________________________________________
APPEARANCES:

Robert W. Bright, Middleport, Ohio, for Appellant.

Laina Fetherolf, Hocking County Prosecuting Attorney, Logan, Ohio, for Appellee.
_____________________________________________________________
PER CURIAM.

{¶ 1} Bo Guess, defendant-appellant, appeals from a judgment of the Hocking

County Court of Common Pleas, in which the court found him guilty, pursuant to a plea of

guilty, of four counts of making false allegations against a peace officer, in violation of

R.C. 2921.15, which are first-degree misdemeanors.

{¶ 2} On March 25, 2011, while appellant was incarcerated at Toledo Correctional

Institution, appellant was indicted on four counts of menacing by stalking, which are

fourth-degree felonies, and four counts of intimidation, which are third-degree felonies.

Starting at his arraignment on April 13, 2011, appellant indicated a desire to proceed pro

se with assisting counsel, and the court appointed counsel for appellant. On May 20, 2011,

appellant's counsel filed a motion to withdraw, which the trial court granted.
Hocking App. No. 11CA33 2

{¶ 3} On June 3, 2011, the trial court issued an entry in which the court indicated

that the matter had come on for hearing on June 2, 2011. The court stated that appellant

was present in open court and requested legal assistance. The court then appointed new

counsel to assist appellant in his defense as "standby counsel." On June 16, 2011,

appellant's appointed counsel filed a request for guidance as to his specific role as court-

appointed counsel, as appellant's actions suggested he desired more assistance than that

usually given by mere standby counsel. On June 22, 2011, appellant's appointed counsel

filed a request for status conference to allow appellant to specifically indicate whether he

wanted to represent himself with standby counsel or have an attorney appointed to

represent him.

{¶ 4} On November 29, 2011, appellant, appearing pro se but with standby

counsel, pleaded guilty to four first-degree misdemeanor counts of making false

allegations of peace officer misconduct, and the court held a sentencing hearing. The

court sentenced appellant to four six-month jail terms, all to be served concurrently to

each other and to his current prison sentence. Appellant appealed the judgment of the

trial court, and appointed counsel filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967). Having found one of the potential assignments of error raised the non-

frivolous issue of whether appellant knowingly and intelligently waived his right to

appellate counsel, we appointed new counsel to file a new appellate brief raising this

assignment of error and any other assignment of error that new counsel wished to assign.

Appellant, with his new counsel, has raised the following assignments of error:

I. WHETHER THE APPELLANT'S WAIVER OF COUNSEL
WAS DONE KNOWINGLY, VOLUNTARILY OR
INTELLIGENTLY AND WHETHER HE WS DEPRIVED OF
HIS RIGHTS IN VIOLATION OF THE SIXTH AMENDMENT
Hocking App. No. 11CA33 3

TO THE UNITED STATES CONSTITUTION, ARTICLE I,
SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.

II. WHETHER THE TRIAL COURT ERRED TO THE
DETRIMENT OF THE APPELLANT BY NOT INFORMING
HIM OF THE POSSIBLE DANGERS OF SELF
REPRESENTATION AND WITHOUT ASCERTAINING
THAT THE APPELLANT'S WAIVER OF HIS RIGHT TO
COUNSEL WAS KNOWING, VOLUNTARY AND
INTELLIGENT.

{¶ 5} Appellant argues his assignments of error together, and we will address

them together. Appellant argues in his assignments of error that he did not voluntarily,

knowingly, and intelligently waive his right to counsel.

{¶ 6} The Sixth Amendment to the United States Constitution, and Section 10,

Article 1 of the Ohio Constitution guarantee the right to assistance of counsel in all

criminal prosecutions that may result in jail sentences. State v. Wellman, 37 Ohio St.2d

162, 171 (1974), citing Argersinger v. Hamlin, 407 U.S. 25 (1972). "The constitutionally

protected right to the assistance of counsel is absolute [and] 'absent a knowing and

intelligent waiver, no person may be imprisoned for any offense * * * unless he was

represented by counsel at his trial.' " State v. Tymcio, 42 Ohio St.2d 39, 43 (1975), quoting

Argersinger at 37, and Gideon v. Wainwright, 372 U.S. 335 (1963). Although a criminal

defendant may waive the right to counsel, the court must be satisfied that the defendant

made an intelligent and voluntary waiver of the right with the knowledge that he will have

to represent himself. Faretta v. California, 422 U.S. 806 (1975); State v. Gibson, 45 Ohio

St.2d 366 (1976).

{¶ 7} Furthermore, Crim.R. 44, which covers the assignment of counsel and

waiver of counsel, provides:

(A) Counsel in serious offenses
Hocking App. No. 11CA33 4

Where a defendant charged with a serious offense is unable to
obtain counsel, counsel shall be assigned to represent him at
every stage of the proceedings from his initial appearance
before a court through appeal as of right, unless the
defendant, after being fully advised of his right to assigned
counsel, knowingly, intelligently, and voluntarily waives his
right to 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.

Crim.R. 2(C) defines "serious offense" as "any felony, and any misdemeanor for which the

penalty prescribed by law includes confinement for more than six months," while Crim.R.

2(D) defines "petty offense" as "a misdemeanor other than [a] serious offense." In the case

at bar, the charges against appellant were serious offenses.

{¶ 8} To be valid, a waiver of the right to counsel 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. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 40, citing

Von Moltke v. Gillies, 332 U.S. 708, 723 (1948). In order for the defendant to competently

and intelligently choose self-representation, he should be made aware of the dangers and

disadvantages of self-representation so that the record will establish that " 'he knows what

he is doing and his choice is made with eyes open.' " State v. Clemons, 3d Dist. No. 4-11-

23, 2012-Ohio-2127, ¶ 3, quoting Faretta at 835.

{¶ 9} There is no single test to determine if a defendant has knowingly,

intelligently, and voluntarily waived his right to counsel. State v. Mootispaw, 4th Dist.

No. 09CA33, 2010-Ohio-4772, ¶ 21, citing State v. Bristow, 4th Dist. No. 07CA3186,
Hocking App. No. 11CA33 5

2009-Ohio-523, ¶ 17; State v. Mitchell, 4th Dist. No. 07CA50, 2008-Ohio-2419, ¶ 15;

State v. Doyle, 4th Dist. No. 04CA23, 2005-Ohio-4072, ¶ 10. Instead, appellate courts

should independently examine the record, i.e., conduct a de novo review, to determine

whether the totality of circumstances demonstrates a knowing, intelligent, and voluntary

waiver of the right to counsel. Id., citing Wellston v. Horsley, 4th Dist. No. 05CA18, 2006-

Ohio-4386, ¶ 10.

{¶ 10} Therefore, we must look to the transcript of the hearings before the trial

court to determine whether appellant made a knowing, voluntary, and intelligent waiver

of trial counsel. In the record before this court, we have two transcripts available: (1) the

transcript of the April 13, 2011, arraignment, and (2) the transcript of the November 29,

2011, plea/sentencing hearing.

{¶ 11} At the arraignment, several relevant exchanges between appellant and the

trial court took place with regard to appellant's right to counsel and his waiver thereof.

Appellant also engaged in several long statements indicating the reasons why he would

like to proceed without counsel, which we have not included below.

THE COURT: * * * Are you requesting counsel?"

DEFENDANT: As of 1993, the way we did it in those cases,
I'm going to be asking due to the obstructions of the plaintiffs
and their co-workers to obstruct my pro se ability just like the
jail did back then, I'm going to ask the Court just for at least
for the record to appoint assisting counsel and let me
represent myself under Loretta vs. California.

***

So if the Court won't give me assisting counsel, order them to
stop obstructing my pro se abilities.

***
THE COURT: Do you want to fill out an affidavit for court
appointed counsel?
Hocking App. No. 11CA33 6

DEFENDANT: I will with respect to my request for assisting
counsel.

THE COURT: That's what I meant.

DEFENDANT: Yes, sir.

THE COURT: I just wrote you name and address and then
zero on it, okay, for all the assets and all that.

DEFENDANT: Yes.

THE COURT: * * * There is no fee for the attorney.
I think what we'll do is either call the state public defender or
Mr. Carson. * * * Did you ever have a conflict with Mr.
Carson?

***

DEFENDANT: Great. The issue is whether I could get
assisting counsel to assist me or a court order to stop them
because you can see I have no paperwork.

***

DEFENDANT: Will there be an assistant lawyer appointed,
sir?

THE COURT: Yes.

{¶ 12} At the plea/sentencing hearing, the only statements even marginally

relevant to this issue were the following:

THE COURT: * * * Mr. Gleeson has been appointed as
counsel to be available to consult with the defendant because
the defendant indicated he wished to represent himself.

***

THE COURT: At this time we would ask you – I understand
you've had a chance to go over this guilty plea form with Mr.
Gleeson who is here to advise you if you ask for information. If
you have any questions you can ask the Court or if you wish to
consult with Mr. Gleason, but if that's what you wish to do,
please sign where it says defendant on that plea.
Hocking App. No. 11CA33 7

{¶ 13} From the record before us, it is abundantly clear that the trial did not make

any inquiry to satisfy itself that appellant was making an intelligent and voluntary waiver

of the right to counsel with the knowledge that he will have to represent himself. There is

no evidence that appellant knew the dangers and disadvantages of self-representation,

and the court did not inquire as to whether appellant understood the defenses available to

him and whether appellant had a broad understanding of the issues in the case. We

cannot say that the trial court acted in accord with the waiver requirements in Martin and

Faretta. Furthermore, the record does not indicate that appellant's waiver of counsel was

in writing, as required by Crim.R. 44(C).

{¶ 14} The State of Ohio, plaintiff-appellee, contends that appellant never waived

his right to counsel. The state argues that we should recognize the present situation as a

third category of indigent self-representation case (with pure self-representation and

representation with the desire to control the presentation of defense being the other two

categories), in which the defendant desires to represent himself but wants standby or

assisting counsel. In this category, the state asserts, there is no waiver of counsel because

counsel is available to assist or take over if the defendant decides to waive his right to self-

representation. The state fails to cite any authority to support its contentions that no

waiver of the right to counsel is necessary when one is proceeding with standby counsel,

and we decline to follow the state's urgings. Instead, we view this case as any other case in

which an indigent defendant wishes to proceed pro se but also desires standby counsel.

Under such circumstances, the defendant must knowingly, intelligently, and voluntarily

waive his right to counsel. See State v. Irwin, 8th Dist. No. 90772, 2009-Ohio-848, ¶ 39

(the court's appointment of standby counsel for the purpose of advice prior to trial does
Hocking App. No. 11CA33 8

not relieve the court of its duty to ascertain the defendant's understanding of the charges,

the possible penalties, and other relevant facts related to the current case; thus, the court

cannot abdicate its responsibility to sufficiently inform a criminal defendant as to that

defendant's waiver of the right to counsel merely by appointing standby counsel). As

explained above, the trial court did not insure that appellant knowingly, intelligently, and

voluntarily waived his right to counsel. For these reasons, we sustain appellant's first and

second assignments of error.

{¶ 15} We note that appellant's counsel outlined in appellant's appellate brief

several other "issues" that appellant wished him to raise before this court but that counsel

believed to be frivolous. None are specifically raised as assignments of error, but are

summarized at the outset of the brief. However, given our sustaining of appellant's

assignments of error, these issues are moot.

{¶ 16} Appellant has also filed a pro se "emergency notice" and "motions for

vacated stay of sentence, new lawyer for new brief, expe[d]ited calendar and status, etc."

These pleadings contain lists of arguments and complaints that are undeveloped and

difficult to comprehend. Regardless, as we have already sustained his assignments of

error, we find these arguments moot.

{¶ 17} Accordingly, appellant's first and second assignments of error are sustained,

his pro se emergency notice and motions are rendered moot, the judgment of the Hocking

County Court of Common Pleas is reversed, and this matter is remanded to that court for

proceedings consistent with this decision.

Judgment reversed and cause remanded.
Hocking App. No. 11CA33 9

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Hocking
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme
Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of
Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio
dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

* Connor, J., Brown, J., & Dorrian, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________
John A. Connor, Judge *

BY: ________________________
Susan D. Brown, Judge *

BY: ________________________
Julia L. Dorrian, Judge *

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.

* John A. Connor, Susan D. Brown and Julia L. Dorrian, from the Tenth
Appellate District, sitting by assignment of The Supreme Court of Ohio in
the Fourth Appellate District.