State v. Briggs

[Cite as State v. Briggs, 2021-Ohio-1980.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )

STATE OF OHIO C.A. Nos. 18AP0008
18AP0023
Appellee

v.
APPEAL FROM JUDGMENT
DENNIS BRIGGS ENTERED IN THE
WAYNE COUNTY MUNICIPAL COURT
Appellant COUNTY OF WAYNE, OHIO
CASE Nos. 2017 CR-B 002198
2017 CR-B 002199
2017 CR-B 002200
2017 CR-B 002201

DECISION AND JOURNAL ENTRY

Dated: June 14, 2021

SUTTON, Judge.

{¶1} Defendant-Appellant Dennis Briggs appeals the judgments of the Wayne County

Municipal Court. This Court, in determining Mr. Briggs’ waiver of his Sixth Amendment right to

counsel was not knowingly, voluntarily, and intelligently made, affirms Mr. Briggs’ convictions

for trespass, as modified, and further remands this matter to the trial court with instructions to

immediately vacate Mr. Briggs’ 30-day jail sentence.

I.

The Convictions and Sentence

{¶2} Following two bench trials, set approximately one month apart, the Wayne County

Municipal Court found Mr. Briggs guilty of four counts of criminal trespass in violation of R.C.

2911.21(A)(3). Mr. Briggs, a homeless individual, was pro se, or without counsel, at both trials.
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As such, Mr. Briggs faced a number of challenges involving discovery, continuances, and

witnesses. The trial court sentenced Mr. Briggs to 30 days in jail. Further, the trial court stayed

Mr. Briggs’ jail sentence during his first appeal to this Court.

The First Appeal

{¶3} In State v. Briggs, 9th Dist. Wayne Nos. 18AP0008, 18AP0023, 2019-Ohio-5290,

¶ 23 (“Briggs I”), Mr. Briggs, through counsel, raised only two assignments of error: (1) Mr.

Briggs’ convictions were based upon insufficient evidence and against the manifest weight of the

evidence; and (2) the trial court improperly allowed hearsay testimony. This Court overruled both

assignments of error and affirmed Mr. Briggs’ convictions and sentence.

Application to Reopen Appeal

{¶4} Through newly appointed counsel, Mr. Briggs filed an Application to Reopen his

direct appeal. In his application, Mr. Briggs contended that his former counsel was ineffective by:

(1) failing to order all pre-trial transcripts; and (2) failing to raise an assignment of error regarding

whether Mr. Briggs knowingly, intelligently, and voluntarily waived his right to counsel prior to

trial. In finding a genuine issue as to whether Mr. Briggs was deprived effective assistance of

counsel on appeal, this Court granted the Application to Reopen. Further, Mr. Briggs filed

motions, with this Court and the trial court, to extend the suspension of the execution of his

sentence on a personal recognizance bond. Subsequent to the trial court’s denial of Mr. Briggs’

motion, we granted the motion on the bond and conditions previously ordered by the trial court.

This matter proceeds as if on initial appeal.
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The Present Appeal

{¶5} Mr. Briggs raises a single assignment of error for our consideration regarding

whether he validly waived his constitutional right to counsel prior to the commencement of the

trials for criminal trespass. We now discuss this assignment of error.

II.

ASSIGNMENT OF ERROR

DENNIS BRIGGS WAS DEPRIVED OF HIS RIGHT TO COUNSEL
UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE
UNITED STATES CONSTITUTION AND CRIM.R. 44(B) WHEN THE
TRIAL COURT SENTENCED HIM TO CONFINEMENT WITHOUT
HAVING INQUIRED INTO WHETHER HE KNOWINGLY,
INTELLIGENTLY, AND VOLUNTARILY WAIVED HIS RIGHT TO
COUNSEL.

{¶6} In his sole assignment of error, Mr. Briggs argues that, although the trial court

informed him of his right to counsel and the potential penalties for criminal trespass, the trial court

failed to advise him about: (1) the requirement to follow the Rules of Evidence; (2) possible

defenses to the charges; or (3) any applicable mitigating circumstances. As such, Mr. Briggs

asserts the trial court failed to ensure he knowingly, intelligently, and voluntarily waived his right

to counsel. Further, Mr. Briggs argues that the present appeal is factually similar to State v. Dowey,

9th Dist. Summit No. 25963, 2012-Ohio-4915, wherein this Court affirmed the defendant’s

convictions and modified the judgments to vacate his jail sentence. Mr. Briggs requests this Court

issue the Dowey remedy in this matter.

{¶7} Plaintiff-Appellee, the State of Ohio, acknowledges that Mr. Briggs was “never

advised of the possible defenses to the charges or of any possible mitigation.” However,

notwithstanding these deficiencies, the State urges this Court to find the trial court substantially

complied with its obligation to ensure Mr. Briggs knowingly, voluntarily, and intelligently waived
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his right to counsel. In the alternative, the State submits that if this Court does not find substantial

compliance or a valid waiver of Mr. Briggs’ right to counsel, this Court should affirm Mr. Briggs’

convictions and vacate his jail sentence.

Waiver of Right to Counsel

{¶8} “The Sixth Amendment guarantees a defendant both the right to counsel and ‘the

right to elect self-representation instead.’” State v. Yeager, 9th Dist. Summit Nos. 28604, 28617,

2018-Ohio-574, ¶ 6, quoting State v. Tucker, 9th Dist. Lorain No. 13CA010339, 2016-Ohio-1353,

¶ 11. However, “[a] defendant who wishes to represent himself must knowingly, voluntarily, and

intelligently waive his right to counsel.” Yeager at ¶ 6, citing State v. Gibson, 45 Ohio St.2d 366

(1976), paragraph one of the syllabus. As indicated in Crim.R. 44(B):

Where a defendant charged with a petty offense is unable to obtain counsel, the
court may assign counsel to represent the defendant. When a defendant charged
with a petty offense is unable to obtain counsel, no sentence of confinement may be
imposed upon the defendant, unless after being fully advised by the court, the
defendant knowingly, intelligently, and voluntarily waives assignment of counsel.

(Emphasis added.)

{¶9} Indeed, “[t]he assistance of counsel is often a requisite to the very existence of a

fair trial.” Argersinger v. Hamlin, 407 U.S. 25, 31 (1972). As such, “[c]ourts are to indulge every

reasonable presumption against the waiver of a fundamental constitutional right including the right

to be represented by counsel. ”State v. Trikilis, 9th Dist. Medina Nos. 04CA0096-M, 04CA0097-

M, 2005-Ohio-4266, ¶ 12. Thus, because waiver of counsel may be impactful upon a person’s

liberties, “the trial court must make sufficient inquiry to determine whether [the] defendant fully

understands and intelligently relinquishes [his] right.” Trikilis at ¶ 12, quoting State v. Gibson, 45

Ohio St. 2d 366 (1976) at paragraph two of the syllabus.

{¶10} This Court, in Trikilis at ¶ 13, explained as follows:
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In determining the sufficiency of the trial court’s inquiry in the context of a
defendant’s waiver of counsel, this Court reviews the totality of the circumstances.
In verifying that a waiver of counsel is made knowingly, voluntarily, and
intelligently, a trial court should determine whether the defendant was advised of
the dangers and disadvantages of self [-] representation. While no one factor is
dispositive, [this Court] should consider whether the defendant was advised of the
nature of the charges and the range of allowable punishments, and, in addition,
[this Court] may consider whether the trial court advised the defendant of the
possible defenses to the charges and applicable mitigating circumstances. We
reaffirm our holding, however, that the trial court’s discussion of possible defenses
and mitigating circumstances need not be fact specific. In order to avoid placing
the trial court in the role of an adversary, a broader discussion of defenses and
mitigating circumstances as applicable to the pending charges is sufficient. A court
may also consider various other factors, including the defendant’s age, education,
and legal experience.

(Emphasis added.) (Internal citations omitted.) Therefore, in determining whether the trial court

made sufficient inquiry into whether Mr. Briggs knowingly, voluntarily, and intelligently

relinquished his right to counsel, this Court must look to the record and review the totality of

circumstances.

The Record as to Waiver

{¶11} In the present matter, the record reflects that, at his arraignment, a magistrate of the

court assigned Mr. Briggs a public defender. The trial court then granted the public defender’s

motion to withdraw as counsel because Mr. Briggs would not sign the fee agreement. Prior to

consolidation of the four charges of criminal trespass, two pre-trial hearings were held before two

different trial court judges.

{¶12} At the first pre-trial hearing, on January 23, 2018, the trial court made no inquiry

whatsoever into whether Mr. Briggs wished to waive his right to counsel or understood the

ramifications of doing so. Instead, the judge admonished Mr. Briggs about, what he described as,

a failure to cooperate with the public defender’s office by not providing a financial affidavit. The

trial court also told Mr. Briggs he could hire private counsel or represent himself. Mr. Briggs
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attempted to explain what happened with the public defender’s office, but the trial court cut the

conversation short. In so doing, the trial court stated:

Okay. This matter is set for pre-trial conference today. You are currently
unrepresented because the [c]ourt has permitted Mr. Rudy to withdraw as counsel
of record. Because you are unrepresented, I need to have your approval to hold the
pre-trial conference. The purpose for that is because you don’t have the benefit of
an attorney and I want to make sure that you want to hold the pre-trial conference.
Do you want to hold the pre-trial conference?

Mr. Briggs responded, “Yes, Your Honor. We are here.” The trial court then advised Mr. Briggs

of the trial on January 29, 2018, and asked if he would be prepared to proceed. Mr. Briggs

responded, “Yes. Your Honor.” The pre-trial hearing ended shortly thereafter.

{¶13} At the second pre-trial hearing on January 25, 2018, before a different judge, the

prosecutor advised the trial court that Mr. Briggs wanted to represent himself. The trial court asked

Mr. Briggs if he had an attorney or desired to hire an attorney for assistance. In response, Mr.

Briggs explained:

I don’t, Your Honor. The [m]agistrate recommended the Public Defender’s Office
and I went down there and they asked me if I was homeless and I said yes. They
asked me if I had any income and I said no and they said well then you are eligible.
But see when I read the paper they wanted me to sign a paper. The paper said that
either, Your Honor, or the county could claim that I had to pay anyway regardless
of that and so I addressed that to them and they said that they weren’t willing to put
anything in writing that said that I wouldn’t have to pay. And so because of the
possibility of, Your Honor, [] or the county, because legal fees are really expensive.

The trial court continued questioning Mr. Briggs about whether he was employed or had any assets

to pay for an attorney. Mr. Briggs further explained:

[T]he problem is that the Public Defender’s Office and I can’t agree on, you know,
when you sign something you are bound by it and so if, Your Honor, or the other,
Your Honor, or the county would claim that I have to pay those fees, then I would
have to pay them. I wouldn’t have any dispute. So, I think it is fair for me to just
proceed pro se so then there is no dispute over possible legal fees. To be honest
with you, Your Honor, I thank you for taking the time to talk to me. I don’t
understand why I’m here. The facts of this case are clear. I was permitted to be [at
Family Pools and Spas.]
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After granting continuances of the scheduled trials, the judge then stated:

And in the meantime, Mr. Briggs, I would strongly advise you to consult with an
attorney to assist you in this matter. And if you are asking for the Court for an
appointment or you at least want to consider having any attorney assist you with
this, the Court would appoint one to help you with this if that’s something you are
asking for. I don’t know if you want to handle this on your own or if you would
like to speak with somebody at least to go over these cases. You have four of them.
I can’t tell you what to do with your case. You’re at liberty to represent yourself
pro se if you so choose, but these cases, you have four cases. They are all
misdemeanors of the fourth degree. And as you saw the individual that was
sentenced before you, that was a misdemeanor of the fourth degree, there is the
possibility of up to thirty days in the Wayne County Jail if you would be convicted
of any one of these offenses so.

***

So, and I’m not saying that would be the sentence or that you would even be
convicted but I’m just saying that there are potential consequences of this and this
might be something that might be good to have an attorney assist you with. Do you
understand?

Mr. Briggs responded, “Okay, Your Honor.” The record also indicates that, prior to the

commencement of either trial, no additional dialogue was exchanged regarding the waiver of Mr.

Briggs’ right to counsel.

Application of Law to the Record

{¶14} Based upon relevant portions of the record, as excerpted above, the trial court did

not fully warn Mr. Briggs of the dangers and disadvantages of self-representation or sufficiently

verify Mr. Briggs’ waiver of counsel was made knowingly, voluntarily, and intelligently. In

Dowey, this Court vacated a defendant’s jail sentence where the record indicated that “the

municipal court [never] told Mr. Dowey about the dangers and disadvantages of self-

representation[,] did not tell Mr. Dowey about his need to follow the rules of evidence and
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procedure, about possible defenses to the charges, or about any applicable mitigating

circumstances.” (Internal quotations and citations omitted.) Dowey at ¶ 5.

{¶15} Here, like Dowey, the trial court advised Mr. Briggs that, if convicted, criminal

trespass is a fourth-degree felony punishable by 30 days in jail, but the record is completely void

of any discussion, even cursory in nature, regarding following the rules of evidence and procedure,

possible defenses to the charges and applicable mitigating circumstances. When Mr. Briggs

attempted to disclose he had permission to be at Family Pools and Spas, the trial court stated, “I

don’t want you to get into your defenses and all of those things that you will be entitled to argue

or have somebody argue on your behalf.” At that time, the trial court could have broadly informed

Mr. Briggs about defenses or possible mitigating circumstances to criminal trespass without taking

an adversarial role against the State. Moreover, there is nothing in the record to indicate the trial

court considered Mr. Briggs’ age, education, or legal experience in order to gauge whether Mr.

Briggs’ knowingly, voluntarily and intelligently waived his right to counsel. Mr. Briggs was also

never advised he would be required to follow the Rules of Criminal Procedure and Evidence.

{¶16} In addition, the record shows Mr. Briggs, a homeless individual, repeatedly

expressed his concern to the trial court that he would not have the ability to pay for legal fees

should he accept the appointment of counsel. Specifically, Mr. Briggs told the trial court, “legal

fees are really expensive,” and it is “fair for me to just proceed pro se so then there is no dispute

over possible legal fees.” After hearing Mr. Briggs’ concerns, the trial court simply ended the

discussion and allowed him to proceed pro se without ensuring the waiver was voluntary.

{¶17} This Court, based upon the totality of the circumstances, simply cannot say Mr.

Briggs knowingly, voluntarily, and intelligently waived his Sixth Amendment right to counsel.

The trial court clearly failed to warn Mr. Briggs about the dangers and disadvantages of self-
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representation prior to allowing Mr. Briggs to defend himself against four counts of criminal

trespass. Therefore, in line with our precedent in Dowey, supra, we instruct the trial court to

immediately vacate Mr. Briggs’ 30-day jail sentence and affirm the judgments of the Wayne

County Municipal Court as so modified. Further, because this Court has determined that the trial

court erred to the prejudice of Mr. Briggs, as explained above, and because former appellate

counsel failed to raise this issue in the prior appeal, this Court vacates its prior judgment and enters

this judgment pursuant to App.R. 26(B)(9).

III.

{¶18} For the foregoing reasons, Mr. Briggs’ sole assignment of error is sustained. The

judgments of the Wayne County Municipal Court are affirmed as modified. We remand this matter

with specific instructions to the trial court to immediately vacate Mr. Briggs’ 30-day jail sentence.

Judgments affirmed as modified
and remanded with instructions
to vacate 30-day jail sentence.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, 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.
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Costs taxed to Appellee.

BETTY SUTTON
FOR THE COURT

CARR, P. J.
TEODOSIO, J.
CONCUR.

APPEARANCES:

MAX HERSCH, Assistant State Public Defender, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting
Attorney, for Appellee.