State v. West

[Cite as State v. West, 2017-Ohio-7521.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2015-CA-72
:
v. : Trial Court Case No. 2015-CR-129
:
THOMAS M. WEST : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 8th day of September, 2017.

...........

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, 55 Greene Street, First Floor, Xenia, Ohio 45385
Attorney for Plaintiff-Appellee

ALEKSANDR F. KOCHANOWSKI, 4173 Forest Avenue, #2, Cincinnati, Ohio 45212
Attorney for Defendant-Appellant

.............

TUCKER, J.
 -2-

{¶ 1} Defendant-appellant Thomas West appeals from his conviction and sentence

for felonious assault, tampering with evidence, and having weapons under disability. He

contends that the trial court erred with regard to the imposition of costs and attorney fees.

He further contends that the trial court erred by denying his motion to suppress. Finally,

he contends that the trial court improperly denied him his right to represent himself.

Along with all of these claims, West contends that trial counsel was ineffective for not

properly addressing the issues in the trial court.

{¶ 2} We conclude West has failed to demonstrate error with regard to costs and

attorney fees. We further conclude that the trial court did not err in denying the motion

to suppress. We also find no error in the trial court’s decision to deny West’s request to

represent himself. Finally, we conclude that West has failed to demonstrate ineffective

assistance of counsel.

{¶ 3} Accordingly, the judgment of the trial court is affirmed.

I. Facts and Procedural History

{¶ 4} On February 22, 2015, Jasmin West was in her home located on Cedarwood

Drive in Fairborn, Ohio. At that time, she lived in the home with her three children. Her

father, Thomas West, had moved into the home with her approximately eight months

prior, and was living in the basement. Jasmin’s grandfather was living in the garage of

the residence. On that date, West came upstairs from the basement at which time he

stepped in dog feces. West began to scream profanities at Jasmin’s nine-year old child.

Jasmin informed West that he could move out. West then left the residence for about an
 -3-

hour. When he returned he appeared to be intoxicated and angry. He then went down

to the basement. After approximately 45 minutes, Jasmin heard West return to the first

floor and then heard a “thud.” Jasmin then heard West leave the kitchen. When she

entered the kitchen she observed a shotgun on the table. She hid the shotgun.

{¶ 5} A few minutes later, West came back upstairs with a handgun. He ordered

his daughter to return his shotgun. When she did not, he fired his handgun by her head

hitting her laptop computer screen. Jasmin stood up and heard ringing in her ears. She

began to pick up glass from the floor. As she was doing that, she called 911 and hid the

phone where West would not see it. West then stated that he was going to kill everyone

in the house. He grabbed his daughter and held the gun to her head while stating that

he would “blow [her] f’ing brains out.” Tr. p. 183. Jasmin’s daughter then walked toward

the kitchen. West told the child to “shut up or he’ll blow her f’ing face off.” Tr. p. 185.

West pointed the handgun in the child’s direction. West continued to demand the return

of his shotgun. Jasmin returned the shotgun and West returned to the basement.

Jasmin and her children left the house.

{¶ 6} Greene County Sheriff’s Deputy Jason Davis was dispatched to the

Cedarwood Drive home as a result of Jasmin’s 911 call. The dispatcher, during the 911

call, was able to hear people arguing. The dispatcher also heard a female telling

someone that they did not need to carry a loaded gun. Davis, his sergeant, and several

other deputies arrived at the residence. They located Jasmin and her children

approximately four houses away from her home, hiding behind a residence. She and

her children were placed in a Fairborn EMS unit for a welfare check because they had

been outside in the snow. West was arrested and transported from the scene. After
 -4-

Jasmin was unable to locate the firearms in the home, she gave the officers permission

to search the home’s yard for the firearms. The officers found a shotgun, shotgun shells,

and West’s wallet underneath a mobile home located in the backyard.

{¶ 7} Greene County Sheriff’s Department Detective Kyle Metz was assigned to

the case. On February 24, he returned to the home to look for the handgun that Jasmin

had stated was used in the commission of the offense. Sheriff’s Department Detective

Shawn Bradley and another detective were also present. The detectives met Jasmin at

the home and she executed a consent to search form. The detectives used a metal

detector in the backyard where they located a shotgun shell.

{¶ 8} Thereafter, Detective Bradley returned to the residence after Jasmin

informed him that she had found the handgun. Jasmin again gave consent to search the

premises and then led him to the handgun which was located between a cinder block and

a tire of the mobile home.

{¶ 9} West was indicted on two counts of felonious assault in violation of R.C.

2903.11(A)(2) with accompanying firearm specifications; two counts of having weapons

while under disability in violation of R.C. 2923.13(A)(2); and one count of tampering with

evidence in violation of R.C. 2921.12(A)(1). The indictment also contained a forfeiture

specification.

{¶ 10} On March 6, 2015, West appeared for an arraignment. At that time,

appointed counsel was unable to be present, however, another attorney appeared with

West. West informed the court that he had not talked to anyone and that he would be

representing himself. West then stated that he wanted to have the indictment dismissed

as it was not in conformity with the Ohio Constitution. The trial court informed him that
 -5-

the arraignment would be postponed until he could talk to counsel, and that it would take

his motion under advisement.

{¶ 11} On March 13, 2015, West and appointed counsel appeared for arraignment.

West began to object to the proceedings arguing that the court did not have jurisdiction

over him because he is not subject to a commercial transaction as he did not contract

with the State of Ohio which he claimed is a corporation. He further stated that he is a

“natural man, free and independent” under “Article 1, Section 1”. West further denied

that he was under indictment. The trial court again continued the arraignment to a later

date.

{¶ 12} On March 17, West and appointed counsel again appeared for arraignment.

Counsel informed the court that he had met with West, and that he had explained the

proceedings to West. West then stated:

Yeah, your Honor, I would like to move to invoke the jurisdiction of this Court

under Article 1 Section 16 as me being an Article 1 Section 1 natural person,

free and independent of any corporate law or commercial law, and invoke

the jurisdiction of Article 4 Section 4, the Court of Common Pleas in and for

Greene County, Ohio, the republic state, and not the Greene County

Common Pleas Court pursuant to the Ohio Revised Codes. I, on record I

want to be in the constitutional Court of Common Pleas and not the

commercial court, sir.

{¶ 13} The court then permitted West to engage in argument regarding jurisdiction

for approximately 20 minutes. The trial court asked West to talk with counsel about the

issues he wanted to raise. The trial court entered a plea of not guilty on behalf of West
 -6-

because he refused to enter any plea. Ultimately, the court set the matter for jury trial

on April 27, 2015. The trial court also set bond.

{¶ 14} The next day, counsel filed a motion for dismissal and other relief arguing

that the trial court did not have subject matter jurisdiction because West is not a

commercial or corporate entity while the court is a commercial court. Counsel also filed

a motion for a competency evaluation and a notice that West was entering a plea of not

guilty by reason of insanity. The trial court overruled the motion to dismiss. However,

a competency evaluation was ordered.

{¶ 15} On April 23, 2015, West and appointed counsel appeared before the court.

West immediately entered an objection stating that he was not a defendant and that he

did not consider his appointed counsel to be his attorney. At that time, the court noted

that counsel had filed a motion to withdraw. West again argued jurisdiction. The trial

court noted that West wanted to represent himself at which point West stated that he

wanted an attorney. Counsel then noted that all motions he had filed were based upon

his understanding of what West wanted him to do following conversations with West.

West again repeated that he wanted a lawyer to represent him.

{¶ 16} On July 7, 2015, a hearing was held on the issue of competency to stand

trial. During the hearing, West again raised the issue of jurisdiction and indicated that

he wanted a different lawyer. Then he stated that he had no problem with his appointed

counsel being his assistant. The trial court found West competent to stand trial. A

request for a second evaluation was made to determine West’s legal sanity at the time of

the offenses. The request was granted.

{¶ 17} Counsel subsequently filed both a motion to suppress and a motion to
 -7-

dismiss three of the five indicted offenses. Counsel also filed a document titled Motion

to Certify Written and Oral Statements of Witnesses as Sworn Affidavits. A hearing on

the motion to suppress was conducted on September 2, 2015. The trial court overruled

the suppression motion by entry dated September 22, 2015.

{¶ 18} A hearing on the issue of West’s sanity at the time of the offenses was

conducted on October 21, 2015. After the trial court ruled, in open court, that the

evidence demonstrated West was sane at the time of the offenses, West began to discuss

the facts of his case. The trial court then informed him not to talk about the case because

anything he said in court could be used against him at trial. Then West again raised the

issue of personal jurisdiction. He informed the court that he has studied the law for more

than 25 years and that he knows the court system consists of a dual system with a

constitutional court and a commercial court. The court again informed West that it had

previously determined that it had jurisdiction and that West could appeal that decision.

West then referred to appointed counsel as his assistant.

{¶ 19} On October 21, 2015, West, acting pro se, filed a document titled Demand

For Remedy in which he asked the court to dismiss the case because the court failed to

prove that it had personal jurisdiction over him. The trial court overruled the motion.

Appointed counsel then filed a motion for a transcript of all hearings conducted up to that

time.

{¶ 20} On November 13, 2015, West, again pro se, filed an amended motion to

dismiss in which he noted that he had “adamantly objected” to the criminal prosecution

which he deemed to be a commercial transaction. The motion was overruled.

{¶ 21} Also on November 13, 2015, West, acting pro se, filed a document entitled
 -8-

Writ of Habeas Corpus and/or other Relief with this Court. By Decision and Judgment

Entry dated February 10, 2016, we dismissed the writ as fatally defective.

{¶ 22} A jury trial was conducted on November 16 and 17, 2015. At the start of

the trial, outside of the presence of the jury, the following colloquy was had1:

DEFENDANT: Well, that motion also provides that Mr. Nowicki was

not my Counsel of record or never has been.

THE COURT: Well, let me tell you something, Mr. West - -

DEFENDANT: He is not representing my agent - -

THE COURT: Hang on - -

DEFENDANT: - - in this case.

THE COURT: - - hang on, Mr. West. We’re proceeding forward with

the trial today, okay? Now you have a choice, and I’ll just tell you right now,

these are your choices: Mr. Nowicki is a licensed attorney who is very

competent. He’s won several trials - -

DEFENDANT: And he’s not representing my agent.

THE COURT: Would you let me finish? Let me finish. I listened to

you. Please listen to me. He is a very accomplished attorney who knows

how to defend a person accused of a crime. He has been appointed to be

your attorney. You have a choice. He can either be your attorney and

represent you in this case, or, you have a Constitutional right to represent

1
This exchange is similar to all of the other exchanges between West and the court during
the course of the proceedings. It is, however, the only time the trial court expressed
frustration or impatience. For an explanation of West’s claims regarding the jurisdiction
of the court and his status as a natural or commercial entity, see State v. Few, 2d Dist.
Montgomery No. 25969, 2015-Ohio-2292.
 -9-

yourself in which case, Mr. Nowicki will then move to the other side of the

rail and will simply be waiting there to answer any questions you might have

of him or to come back into the case if you choose to have him re-represent

you. This is a decision you make. If Mr. Nowicki is your lawyer, he will

speak for you during the course of this trial. You will not have a speaking

part. If you choose to represent yourself, then the case is yours, and you

can say whatever you feel is appropriate with the guidelines of the rules of

evidence, and we’ll proceed forward. Those are your decisions, and that’s

the way I’m going to handle this trial.

DEFENDANT: I told this Court the very first time I spoke to him in this

cause that I was representing myself.

THE COURT: Well, we have - -

DEFENDANT: Not my agent, but myself. The Article 1 Section 1 free

and independent man. Not my agent. Not my artificial agent.

THE COURT: Mr. West, you want - -

DEFENDANT: You have - -

THE COURT: Hang on.

DEFENDANT: - - you and Mr. Nowicki have conspired together to put

this commercial transaction together under the guise of a criminal

prosecution and trying to shove it down my throat. That’s a crime in this

State, and I’ve made an affidavit, which you blew off. An affidavit

undisputed stands as law.

THE COURT: Okay. Now do you want him to represent you or do
 -10-

you want to represent yourself?

DEFENDANT: He’s never represented me.

THE COURT: So you’re telling me you want to - -

DEFENDANT: He’s never represented my agent, and I will put

together my affirmative defense if I can have my law books, I need some

law books.

THE COURT: We got [sic] a trial starting in a few minutes. It’s your

choice to represent yourself or have Mr. Nowicki represent you. But if you

wish to represent yourself, I have to make a record, and I will do so.

DEFENDANT: The record should state, he is not representing my

artificial agent and I am not representing my artificial agent, period. This

Court - -

THE COURT: All right. You have a choice, either he - -

DEFENDANT: - - this Court has, does not have jurisidiciton - -

THE COURT: Mr. West, either he represents you or you represent

yourself. I can only handle it one of two ways. I’m going to let you have a

moment to answer the question - -

DEFENDANT: Does this Court have a - -

THE COURT: - - I want him - -

DEFENDANT: - - written agreement - -

THE COURT: Sir, sir - -

DEFENDANT: - - between myself - -

THE COURT: All right. We’re going to take a break. I’m bringing
 -11-

the jury in.

DEFENDANT: I need some law books if I’m going to represent myself.

THE COURT: You have to tell me whether you want to represent

yourself or not. You’ve got the call.

DEFENDANT: I’m not representing any artificial agent. Do you know

what an artificial agent is, your Honor?

THE COURT: We have decided that issue. It has been done. The

Court of Appeals will rule on that, but I am done with that argument, okay?

We are done with that. You either represent yourself - -

DEFENDANT: Well, if you’re breaking, if you’re violating the law,

maybe somebody ought to arrest you.

THE COURT: I’ll tell you what Mr. West, let me explain something to

you, I’d hoped I did not have to do right now, but I’m going to do it right now.

My only job in this trial is to see you receive a fair trial, all right? That’s my

only job. However, in order to do that, you have to help me give a fair trial

to you. If you choose not to cooperate with my efforts to give you a fair

trial, I will tell you something, I’m going to have you removed from this

courtroom. You wil be someplace else, and you’ll be able to watch this

trial, and that’s your choice. You can either choose to do that now or I can

order you out of this courtroom if you choose not to allow me to give you a

fair trial. I put you on notice.

DEFENDANT: I ask one question to this Court, and it still hasn’t been

answered - -
 -12-

THE COURT: Yes, I have answered the question. We’re going

forward with this trial.

DEFENDANT: I understand that. And is this trial a commercial

prosecution - -

THE COURT: I’ve answered that question.

DEFENDANT: I haven’t heard the answer.

THE COURT: I denied that. That is denied.

DEFENDANT: This is not a commercial prosecution?

THE COURT: Your motion is denied, we’re going forward with the

charges in the indictment. Now, do you want Mr. Nowicki to represent you

or do you want to represent yourself?

DEFENDANT: He’s never represented my agent.

THE COURT: You haven’t answered my question. Do you want him

speaking for you - - yes, or no?

DEFENDANT: No.

THE COURT: All right.

DEFENDANT: Nobody’s representing - -

THE COURT: So you want to represent - -

DEFENDANT: - - my commercial agent in this, in this court.

THE COURT: Do you want to represent yourself? You do not want

- - let me put it this way: You do not want Mr. Nowicki going forward in this

trial, is that what you’re telling me?

DEFENDANT: I’m not a defendant in this trial, your Honor.
 -13-

THE COURT: That’s not the question. Mr. Nowicki is either going to

sit there and speak for you or he’s going to sit out in the gallery and keep

his mouth shut. Those are the choices you have.

DEFENDANT: Then I guess he’s sitting in the gallery.

THE COURT: All right. Hang on a second.

DEFENDANT: Because he doesn’t represent my agent.

THE COURT: Hang on one second. All right, Mr. West, I am

required to ask you some questions before I proceed forward with you

representing yourself.

DEFENDANT: I’m not representing my agent.

THE COURT: All right. That’s fine. For you - - you can do what you

want. I’m not saying you have to do anything. You’ve just told me you

want Mr. Nowicki to be standby counsel, and I’m going to proceed with that.

DEFENDANT: Mr. Nowicki has never represented my commercial

artificial agent as defined by Revised Code 1.02(A).

THE COURT: Have you ever represented yourself before in the past

in a criminal proceeding?

DEFENDANT: No.

THE COURT: Okay. Oh, can you get the waiver form prepared?

Now you understand that you have a right not to have Mr. Nowicki represent

you, do you understand that?

DEFENDANT: Again, I will say, he has never represented me or my

agent. You’re the one who put that into his head, and he’s the one that put
 -14-

it into your head. I’ve had nothing to do with it. I’ve - -

THE COURT: Do you understand - - okay.

DEFENDANT: I’ve sat over in that jail for three or four months - -

THE COURT: Do you understand what the charges are against you

in this case?

DEFENDANT: The public offenses, yes, I do.

THE COURT: All right.

DEFENDANT: And, and - -

THE COURT: And do you know what the - -

DEFENDANT: And excuse me. There was a motion, first time I was

tried to be arraigned in which I objected and moved that the indictment be

dismissed, because its contrary to the laws of the State, and it’s contrary to

my rights.

THE COURT: Okay. Do you understand that - -

DEFENDANT: It’s an indictment of an artificial agent.

THE COURT: Okay. Let me, let me talk. Okay. I’m trying to get

this thing resolved.

DEFENDANT: And I moved to have it dismissed. That’s never been

ruled on, your Honor.

THE COURT: I’ve ruled on everything you’ve filed and that’s done.

Now, do you understand in Count 1 - -

DEFENDANT: That was, that was an open court - -

THE COURT: Mr. West, do you understand in Count 1 you could
 -15-

receive eight years if you’re convicted for that offense; do you know that?

DEFENDANT: I have never been indicted nothing [sic], your Honor.

THE COURT: You also - - so you don’t know what the penalty is?

DEFENDANT: I have never been indicted for anything, your Honor.

THE COURT: All right. Mr. West, I’ll tell you what, here’s what we’re

going to do - -

DEFENDANT: I’m just, I’m being honest with you.

THE COURT: Let me talk. I’m moving forward with this trial, Mr.

West. We’re doing it my way. Do you understand? Now, let me tell you

something about that. I’ve already told you that we’re going forward with

this trial, and I have told you we’ll do it without you. Because you are

unwilling to talk to me about Mr. Nowicki not representing you, he’s going

to be your lawyer, all right? Now the next time in front of this jury that you

disrupt this trial, I’m going to give you a warning. The second time you

disrupt this jury, I’m removing you from this courtroom, and we’re going to

do your trial without you being present, all right? And I’m not going to worry

about whether he’s your agent or not your agent or who the hell you are. I

don’t care. The bottom line is, we’ll go forward with this trial, and to tell you

the truth, it’s a lot easier for me to give you a fair trial without you being here,

because you’re doing everything you can to say to this jury, I want to be

convicted. I’m sorry. I hate to say that. I want you to have a fair trial, but

you’re not helping me. And I’ve laid out the ground rules here, and this is

the way we’re going to do it. If you do not want Mr. Nowicki to represent
 -16-

you, I have some questions I have to ask you.

DEFENDANT: Okay.

THE COURT: And if you’ll answer the questions, we’ll proceed

forward. Otherwise, he’s your lawyer. We’re proceeding forward.

DEFENDANT: Okay. Mr. Nowicki, who is he representing, me or my

--

THE COURT: You have to answer that question.

DEFENDANT: - - artificial agent?

THE COURT: You have to answer that, not me.

{¶ 23} Thereafter the matter was tried to the jury. West was convicted on one

count of felonious assault with a firearm specification, both counts of having weapons

under disability, and the count of tampering with evidence. The State dismissed the

forfeiture specification. West was sentenced to an aggregate prison term of seven years.

A timely notice of appeal was filed by trial counsel.

{¶ 24} Appointed appellate counsel filed a brief pursuant to Anders v. California,

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in which counsel represented that

there were no potentially meritorious issues for review. West was notified of the filing

and was given time to file his own appellate brief. He then proceeded to file numerous

documents with this court regarding the jurisdictional issues raised below. This court

assigned new appellate counsel who asserted the following assignments of errors.

II. Court Costs

{¶ 25} West’s first assignment of error states as follows:
 -17-

THE COST BILL ENTERED AS AN EXECUTION FOR THE COLLECTION

OF COSTS AND FEES AGAINST APPELLANT IS CONTRARY TO LAW.

{¶ 26} West contends that he was improperly ordered to pay court costs and

attorney fees. He argues that the court failed to consider his present and future ability

to pay in accordance with R.C. 2929.19(B)(6) and to specify the amount of costs at

sentencing. He further argues that counsel was ineffective for failing to seek a waiver of

costs during the sentencing hearing.

{¶ 27} We begin by noting that the trial court did not order West to pay attorney

fees. Thus, that argument has no merit.

{¶ 28} Court costs, which are governed by R.C. 2947.23, do not constitute financial

sanctions. State v. Smith, 3d Dist. Allen No. 1–07–32, 2007–Ohio–6552, ¶ 11.

Therefore, R.C. 2929.19 is inapplicable to court costs, and the trial court need not

consider a defendant's ability to pay under R.C. 2929.19 prior to imposing court costs.

Further, “the court's imposition of court costs is not erroneous due to the court's failure to

specify the amount of court costs at sentencing.” State v. Lux, 2d Dist. Miami No. 2010

CA 30, 2012-Ohio-112, ¶ 49. We have held that the failure to specify the amount at

sentencing does not affect the order's finality and the itemized bill may be calculated later.

State v. Murillo, 2d Dist. Montgomery No. 21919, 2008–Ohio–201, ¶ 14. Thus, we

conclude that West’s arguments regarding the trial court’s imposition of costs fail.

{¶ 29} We next turn to the issue of whether counsel was ineffective for failing to

seek a waiver of costs at sentencing. In order to establish ineffective assistance of

counsel, a defendant must show that his trial counsel's performance was both deficient

and prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
 -18-

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141–142, 538 N.E.2d 373

(1989). With respect to deficiency, a defendant must show that his counsel's

performance “fell below an objective standard of reasonableness.” Strickland at 688,

104 S.Ct. 2052, 80 L.Ed. 2d 674. With respect to prejudice, it must be shown that there

is a reasonable probability that but for counsel's unprofessional errors, the outcome of

the proceeding would have been different. Id. at 694, 104 S.Ct. 2052, 80 L.Ed. 2d 674.

{¶ 30} Under R.C. 2947.23, a trial court is required to impose court costs against

all convicted defendants, even those who are indigent. See State v. White, 103 Ohio

St.3d 580, 2004–Ohio–5989, 817 N.E.2d 393, ¶ 8. The trial court, however, has the

discretion to waive court costs if the defendant makes a motion to waive costs. State v.

Mihalis, 8th Dist. Cuyahoga No. 104308, 2016-Ohio-8056, ¶ 30.

{¶ 31} Under R.C. 2947.23(C), as amended by Am.Sub.H.B. 247, effective March

22, 2013, the trial court “retains jurisdiction to waive, suspend, or modify the payment of

the costs of prosecution * * *, at the time of sentencing or at any time thereafter.” Thus,

there is no limit on when a defendant can move for a waiver of costs. This makes it

almost impossible to find that counsel was ineffective for failing to raise the issue at

sentencing. “ ‘The statutory provision in R.C. 2947.23(C) adds another facet to our

ineffective assistance of counsel analysis because a defendant is no longer required to

move for a waiver of court costs at the sentencing hearing or waive it—strategic timing

may now play a role in trial counsel's decision—and prejudice resulting from a failure to

move at the sentencing hearing is harder, if not impossible, to discern. Trial counsel may

have decided as a matter of strategy not to seek a waiver or modification of court costs

until some later time when the trial court had time to either reflect upon its sanctions or
 -19-

the vividness of the impact of [the defendant's] conduct had faded.’ ” Mihalis at ¶ 33,

quoting State v. Farnese, 4th Dist. Washington No. 15CA11, 2015–Ohio–3533, ¶ 15, 16.

{¶ 32} In this case, we cannot conclude that counsel’s conduct was deficient.

Further, we cannot say that such a motion would have been granted. The record reveals

that although West was indigent at the time of trial, he was only 55 years old and in

apparent good health. There is nothing in the record to indicate that he is incapable of

working, or paying costs in the future. Therefore, it is, at best, speculative, to find that

the trial court would have granted a waiver. Thus, we find no showing of prejudice.

{¶ 33} The first assignment of error is overruled.

III. Motion to Suppress

{¶ 34} West’s second assignment of error states:

APPELLANT’S FOURTH AMENDMENT RIGHT TO BE FREE FROM

UNREASONABLE SEARCH AND SEIZURE WAS DENIED WHEN THE

NECESSARY CONSENT WAS NOT PROVIDED FOR A WARRANTLESS

SEARCH.

{¶ 35} West contends that the search that revealed the guns was invalid. In

support, he notes that police did not have a warrant. He further claims that his daughter

did not have the authority to consent to the search because she was merely a tenant of

the house which belonged to her grandfather. He further contends that counsel was

ineffective for failing to raise this issue.

{¶ 36} We begin by noting that counsel clearly raised, explored, and argued the

issue of whether Jasmin had the authority to consent to a search of the premises. Thus,
 -20-

we conclude that the claim of ineffective assistance of counsel lacks merit.

{¶ 37} Next, we turn to the validity of the consent. Unless a recognized exception

applies, the Fourth Amendment of the United States Constitution mandates that police

obtain a warrant based on probable cause in order to effectuate a lawful search. State

v. Holloway, 2d Dist. Clark No. 04CA0070, 2006-Ohio-4797, ¶ 15–16, citing Katz v. United

States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Valid consent to search is a

recognized exception to the warrant requirement. State v. Moon, 2d Dist. Montgomery

No. 9288, 1986 WL 2368, *1 (Feb. 14, 1986), citing Schneckloth v. Bustamonte, 412 U.S.

218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). “A police officer may validly enter and search

a home, without a warrant, when the officer has obtained the voluntary consent of an

occupant who shares, or is reasonably believed to share, authority over the area in

common with a non-present co-occupant.” State v. Keggan, 2d Dist. Greene No. 2006

CA 9, 2006-Ohio-6663, ¶ 45. (Citations omitted.)

{¶ 38} Proper consent can be given by a third party, but the third-party must

possess “common authority over the area sought to be searched.” State v. Miller, 117

Ohio App.3d 750, 759, 691 N.E.2d 703 (11th Dist.1997), citing United States v. Matlock,

415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). (Other citation omitted.)

“Common authority rests ‘on mutual use of the property by persons generally having joint

access or control for most purposes, so that it is reasonable to recognize that any of the

co-inhabitants has the right to permit the inspection in his own right and that the others

have assumed the risk that one of their number might permit the common area to be

searched.’ ” State v. Pugh, 2d Dist. Montgomery No. 25223, 2013-Ohio-1238, ¶ 9, citing

Matlock at 171, 94 S.Ct. 988, 39 L.Ed.2d 242, fn. 7. “[T]he United States Supreme Court
 -21-

has applied a ‘reasonable belief’ standard for determining whether a police officer's

reliance upon the consent of a third party was proper under particular circumstances.”

Miller at 759, 691 N.E.2d 703. “That is, before a trial court can conclude that a

warrantless search was valid on the basis of a third-party consent, it must find that the

facts of the case supported a reasonable belief on the part of the police officer that the

third party had the authority to consent to the search.” Id.

{¶ 39} The trial court found that a valid consent to search was given by Jasmin,

the victim, in this case. The court further found that the area searched was a common

area shared by the occupants of the residence. We agree.

{¶ 40} At the hearing on the motion to suppress, Detective Metz testified that

Jasmin told him that she owned the house. Detective Davis testified that Jasmin told

him that she was the resident of the home. Detective Bradley testified that Jasmin

confirmed that the property was her address. All three detectives testified that Jasmin

gave them permsssion to search the yard. In fact, Jasmin asked them to search because

she wanted them to find the guns.

{¶ 41} “Appellate review of a motion to suppress presents a mixed question of law

and fact. When considering a motion to suppress, the trial court assumes the role of trier

of fact and is therefore in the best position to resolve factual questions and evaluate the

credibility of witnesses.” State v. Koon, 2d Dist. Montgomery No. 26296, 2015-Ohio-

1326, ¶ 13, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d

71, ¶ 8. “Consequently, an appellate court must accept the trial court's findings of fact if

they are supported by competent, credible evidence. Accepting these facts as true, the

appellate court must then independently determine, without deference to the conclusion
 -22-

of the trial court, whether the facts satisfy the applicable legal standard.” Id. The

application of the law to the trial court's findings of fact is subject to a de novo standard

of review. State v. Gordon, 5th Dist. Fairfield No. 14–CA–13, 2014-Ohio-5027, ¶ 14,

citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

{¶ 42} Even assuming, as argued by West, Jasmin did not have actual authority to

consent, the court did not err in finding that she possessed the apparent authority to do

so. As stated, a warrantless entry is valid if the police reasonably believe, although

incorrectly, that the person giving consent possessed common authority over the

premises.

{¶ 43} The second assignment of error is overruled.

IV. Self-Representation

{¶ 44} The third assignment of error asserted by West is as follows:

THE APPELLANT WAS DENIED OF HIS RIGHT TO DUE PROCESS AND

FAIR TRIAL WHEN THE COURT DENIED HIM OF HIS CONSTITUTIONAL

RIGHT OF SELF-REPRESENTATION.

{¶ 45} West argues the trial court denied him his Sixth Amendment right to

represent himself.

{¶ 46} The Sixth Amendment of the United States Constitution guarantees a

criminal defendant a right to self-representation. State v. Gibson, 45 Ohio St.2d 366,

345 N.E.2d 399 (1976), paragraph one of the syllabus, citing Faretta v. California, 422

U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However, “[t]he dangers involved in

waiving the right to representation by counsel are significant, and because the right to
 -23-

self-representation can be employed as a tactic to delay trial and to disrupt otherwise

orderly legal proceedings, the request for self-representation must be clearly and

unequivocally asserted in a timely manner or it will be waived.” State v. Ware, 8th Dist.

Cuyahoga No. 99374, 2014-Ohio-815, ¶ 9, citing State v. Cassano, 96 Ohio St.3d 94,

2002–Ohio–3751, 772 N.E.2d 81. Once a defendant has clearly and unequivocally

informed the trial court that he wishes to represent himself, the trial court possesses a

clear legal duty to determine whether the defendant's waiver of counsel is knowing,

intelligent, and voluntary. State v. Williams, 8th Dist. Cuyahoga No. 99859, 2014–Ohio–

1057.

{¶ 47} This court, in State v. Gatewood, 2d Dist. Clark No. 2008 CA 64, 2009-Ohio-

5610, stated:

When a criminal defendant is charged with a serious offense and

“elects to proceed pro se, the trial court must demonstrate substantial

compliance with Crim.R. 44(A) by making a sufficient inquiry to determine

whether the defendant fully understood and intelligently relinquished his or

her right to counsel.” State v. Martin, 103 Ohio St.3d 385, 816 N.E.2d 227,

2004-Ohio-5471, citing Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399; State

v. Pillow, Greene App. No. 2007 CA 102, 2008-Ohio-5902, at ¶ 15. “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
 -24-

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. A judge

can make certain that an accused's professed waiver of counsel is

understandingly and wisely made only from a penetrating and

comprehensive examination of all the circumstances under which such a

plea in tendered.” Von Moltke v. Gillies (1948), 332 U.S. 708, 723-724, 68

S.Ct. 316, 92 L.Ed.2d 309. See, also, Martin, 103 Ohio St.3d 385, 816

N.E.2d 227, ¶ 40; State v. Engle, Montgomery App. No. 22455, 200[9]-Ohio-

1944.

We conduct an independent review to determine whether a

defendant voluntarily, knowingly, and intelligently waived his right to

counsel based on the totality of the circumstances. Wellston v. Horsley,

Jackson App. No. 05CA18, 2006-Ohio-4836, at ¶ 10, citing Martin, 103 Ohio

St.3d 385, 816 N.E.2d 227, and Gibson, 45 Ohio St.[2d] 366. “Courts are to

indulge every reasonable presumption against the waiver of a fundamental

constitutional right including the right to be represented by counsel.” State

v. Dyer (1996), 117 Ohio App.3d 92, 95, 689 N.E.2d 1034.

We appreciate that waiver of counsel is a stormy sea for a trial court

to navigate. There is even a foundational question as to whether a

defendant is waiving a right (assistance of counsel) or asserting a right (self-
 -25-

representation). Further, the self-representation right has itself been limited

by the allowance of appointment of standby counsel over the self-

represented defendant's objection, McKaskle v. Wiggins (1984), 465 U.S.

168, 178-179, 104 S.Ct. 944, 79 L.Ed.2d 122, and the mandatory

representation by counsel at trial on the ground the defendant is competent

to stand trial, but lacks the mental capacity to conduct his trial unless

represented. Indiana v. Edwards (2008), [554] U.S. [164], 128 S.Ct. 2379,

171 L.Ed.2d 345. And if the judge makes the wrong call, either the complete

denial of counsel, Johnson v. United States (1997), 520 U.S. 461, 117 S.Ct.

1544, 137 L.Ed.2d 718, citing Gideon [v. Wainwright, 372 U.S. 335, 83 S.Ct.

792, 9 L.Ed.2d 799 (1963)], supra, or the denial of self-representation

constitutes structural error which requires automatic reversal. McKaskle,

supra; State v. Reed (1996), 74 Ohio St.3d 534, 660 N.E.2d 456.

Id. at ¶ 32-34.

{¶ 48} It is clear from the record that the trial court was patient with, and respectful

of, West. The court listened to his arguments every time he came before the court. The

court attempted to explain the process at every appearance. The court permitted West

to make every argument he wanted to raise. The court also diligently attempted to

ascertain whether West truly wanted to represent himself or whether he wanted to

proceed with counsel. West was never clear and unequivocal about his desire to

proceed on his own behalf.

{¶ 49} Even assuming that West made an unequivocal request at the beginning of

the proceedings, we conclude that it was reasonable for the trial court to find that he
 -26-

waived the request since he stated, several times, that he wanted an attorney, and he

permitted counsel to act on his behalf in pleadings and at the motion to suppress.

{¶ 50} Finally, the trial court went to great lengths to ascertain West’s wishes

regarding counsel. West’s conduct demonstrates, at best, an attempt to impede this

process by his continual refusal to permit the trial court to conduct any type of meaningful

colloquy. Thus, under the facts of this case, we conclude that the trial court did not err

in denying West’s request to represent himself.

{¶ 51} The third assignment of error is overruled.

V. Conclusion

{¶ 52} All of West’s assignments of error being overruled, the judgment of the trial

court is Affirmed.

.............

FROELICH, J. and WELBAUM, J., concur.

Copies mailed to:

Nathaniel R. Luken
Aleksandr F. Kochanowski
Hon. Stephen Wolaver