Euclid v. Hedge

[Cite as Euclid v. Hedge, 2022-Ohio-464.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

CITY OF EUCLID, :

Plaintiff-Appellee, :
No. 110473
v. :

ASHAUGHNTA STAR HEDGE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: February 17, 2022

Criminal Appeal from the Euclid Municipal Court
Case No. 21CRB00087

Appearances:

Kelley A. Sweeney, Director of Law, City of Euclid, and
Mary Catherine Mason, Euclid Prosecuting Attorney, for
appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and
Jonathan Sidney, Assistant Public Defender, for
appellant.

MARY J. BOYLE, J.:

Defendant-appellant, Ashaughnta Star Hedge (“Hedge”), appeals her

conviction for theft. Finding merit to Hedge’s appeal, we vacate the conviction and

remand for further proceedings.
 On February 1, 2021, Hedge was charged with theft in violation of

Euclid Codified Ordinances 541.02(a)(1), a first-degree misdemeanor, arising from

a January 18, 2021 incident. Hedge was arraigned on February 23, 2021. Prior to

her arraignment, Hedge viewed a video created by the Euclid Municipal Court

advising defendants of their constitutional rights. At the arraignment, Hedge

entered a plea of not guilty and proceeded to represent herself.

The matter proceeded to a bench trial on April 16, 2021, after which

Hedge was convicted of theft and sentenced to 30 days in jail. The municipal court

suspended the 30 days based on Hedge’s satisfactory completion of one year of a

community-control sanction. The municipal court also sentenced Hedge to

40 hours of community service and participation in an antitheft program. Finally,

the municipal court fined Hedge $150 and assessed court costs. The municipal court

did not award restitution because the value of the allegedly stolen property was not

confirmed.

Hedge appeals her conviction, raising the following three

assignments of error:

ASSIGNMENT OF ERROR ONE

The municipal court erred in failing to comply with Ohio Crim.R. 5 by
not advising Hedge of the necessity that she demand a jury trial.

ASSIGNMENT OF ERROR TWO

The municipal court erred in denying Hedge her right to trial by jury in
the absence of a knowing, voluntary, and intelligent waiver of this
fundamental right.

ASSIGNMENT OF ERROR THREE
 The municipal court erred in failing to advise Hedge of her right to
counsel or ensure that Hedge’s decision to proceed to trial without
counsel was knowing, voluntary, and intelligent.

We will address the third assignment of error first because it is

dispositive. Within this error, Hedge argues that the municipal court failed to advise

her of her right to counsel or ensure that her decision to proceed to trial without

counsel was knowing, voluntary, and intelligent.

The Sixth and Fourteenth Amendments to the United States

Constitution guarantee criminal defendants brought to trial in any federal or state

court the right to assistance of counsel before they can be validly convicted and

punished by imprisonment. See Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77

L.Ed. 158 (1932); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799

(1963). The Ohio Constitution, Article I, Section 10 guarantees the right to counsel

at any trial, in any court within the state. Criminal defendants also have an

independent constitutional right to forgo their right to counsel and represent their

own interests. State v. Reed, 74 Ohio St.3d 534, 535, 660 N.E.2d 456 (1996), citing

Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

A defendant may assert the right to self-representation and “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, 377, 345 N.E.2d

399 (1976), paragraph one of the syllabus. “In order to establish an effective waiver

of the right to counsel, the trial court must make a sufficient inquiry to determine

whether the defendant fully understands and intelligently relinquishes that right.”
Id. at paragraph two of the syllabus. This inquiry requires the court to investigate

the defendant’s wish to represent himself and ensure that the defendant fully

understands the dangers and disadvantages of self-representation so that the record

establishes that the defendant knows what he is doing and his “choice is made with

eyes open.” Highland Hills v. Nicholson, 8th Dist. Cuyahoga No. 100577, 2014-

Ohio-4671, ¶ 12, quoting Faretta at 835.

Courts must indulge every reasonable presumption against waiver of

counsel. State v. Wellman, 37 Ohio St.2d 162, 171, 309 N.E.2d 915 (1974). A valid

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.’”

State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 40, quoting

Gibson at 377. “For a petty offense, voluntary and knowing waiver may be shown

through the court’s colloquy with the defendant.” State v. Brooke, 113 Ohio St.3d

199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 54.

Crim.R. 5(A) provides that in misdemeanor cases in which the

defendant is called upon to plea at the defendant’s initial appearance, Crim.R. 10

governs the procedure. Crim.R. 10(C) provides in relevant part:

When a defendant not represented by counsel is brought before a court
and called upon to plead, the judge * * * shall cause the defendant to be
informed and shall determine that the defendant understands * * *
[t]he defendant has a right to counsel, and the right to a reasonable
continuance in the proceeding to secure counsel, and, pursuant to
 Crim.R. 44, the right to have counsel assigned without cost if the
defendant is unable to employ counsel.

Crim.R. 44(B) provides for assignment of counsel “[w]hen a

defendant charged with a petty offense is unable to obtain counsel, [and] no

sentence of confinement may be imposed * * * unless after being fully advised by the

court, [the defendant] knowingly, intelligently, and voluntarily waives assignment

of counsel.” Such a waiver must occur in open court and be recorded. Crim.R. 22

and 44(C). Nicholson at ¶ 15. We review a defendant’s waiver of the right to counsel

de novo. State v. Newman, 8th Dist. Cuyahoga No. 109182, 2020-Ohio-5087, ¶ 17,

citing State v. Nelson, 2016-Ohio-8064, 75 N.E.3d 785, ¶ 18 (1st Dist.).

In this case, plaintiff-appellee, the city of Euclid (“Euclid”), argues

that Hedge was advised of her right to counsel in an explanation-of-rights video that

the municipal court plays to all defendants before their arraignment, again when

Hedge was arraigned, and once more before trial. Euclid contends that in each

instance, Hedge knowingly, intelligently, and voluntarily waived her right to

counsel. Hedge does not dispute that the municipal court repeatedly advised her of

her right to counsel. Rather, Hedge contends that these “cursory” colloquies did not

advise her of the dangers and disadvantages of self-representation, potential

defenses, and applicable mitigating circumstances. Hedge argues that the trial court

failed to ensure Hedge understood the rights she was waiving, and without these

advisements, her decision to represent herself was uninformed and her waiver of
counsel was unknowing, unintelligent, and involuntary. On the record before us, we

find Hedge’s argument more persuasive.

A review of the record reveals that in the prerecorded explanation-of-

rights video that the municipal court played prior to Hedge’s arraignment, the trial

judge stated in relevant part: “I’m also advising you that you have a right to an

attorney. You have a right to a reasonable continuance to hire an attorney. If your

charges carry the possibility of a jail sentence, you also have the right to an attorney

appointed by the court if, in fact, you cannot afford an attorney.”

At the arraignment, the municipal court advised Hedge that she was

charged with theft, a first-degree misdemeanor carrying a possible penalty of

108 days in jail and a one thousand dollar fine.1 The municipal court asked if Hedge

had watched the explanation-of-rights video. Hedge answered that she had. The

court then asked Hedge the following:

Court: Do you understand that you have a right to a trial by jury;
you have a right to subpoena witnesses; you have a right
not to testify; you have no burden of proof?

You’re a United States Citizen?

Hedge: Yes.

After Hedge entered a not guilty plea, the municipal court asked, “Do you plan on

hiring an attorney?” Hedge replied, “I don’t think I need to.” The court responded,

“Okay. That’s completely up to you.”

1 The transcript of the arraignment reads 108 days. Euclid claims that the reference
to 108 rather than 180 days was an error in transcription. Hedge is unsure whether the
reference was an error in transcription or in the trial court’s statement.
 At the pretrial, the court asked, “You will be representing yourself,

Ms. Hedge?” Hedge replied, “Yes.” The court then provided Hedge with a reference

sheet that explained trial procedure and added, “Even though you’re not an attorney,

I have to hold you to the same standards I hold the prosecutor. So this sheet * * *

describes * * * the procedures. You need to read this, become familiar with it, and

be prepared to try your case on Friday, April 16th.”2

Finally, at trial, the municipal court engaged in the following colloquy

with Hedge:

Court: And, Ms. Hedge, you were advised that you do have the
right to an attorney. You were also afforded the right to a
reasonable continuance to hire an attorney, correct?

Hedge: Yes.

Court: You were also afforded the opportunity to apply for a
public defender, if necessary, if you were unable to afford
an attorney, correct?

Hedge: Correct.

Court: And it is your decision to proceed without counsel; is that
correct?

Hedge: It is.

Court: And we’re prepared to go forward then?

Hedge: Yes.

2 Euclid attached the reference sheet to its appellee brief as Exhibit A. A party
cannot add to the record on appeal by attaching materials that were not part of the record
below. State v. Hodges, 2017-Ohio-9025, 101 N.E.3d 1045, ¶ 16 (8th Dist.), fn. 2, citing
State v. Workman, 8th Dist. Cuyahoga No. 53581, 1988 Ohio App. LEXIS 1057, 10
(Mar. 24, 1988). We therefore cannot consider the reference sheet attached to Euclid’s
brief. Even if we could consider the reference sheet, it adds little to the analysis.
 In this case, although the municipal court advised Hedge of her right

to counsel, the charge against her, and the penalties if she were convicted, the

municipal court did not confirm whether Hedge understood her right to counsel.3

The record shows that at her arraignment, Hedge answered a single “yes” to a

compound question that referenced her right to counsel among several other rights

and, before Hedge could answer, asked whether she was a U.S. citizen. Also, in this

and subsequent colloquies, the municipal court did not advise Hedge of the dangers

and disadvantages of self-representation, the possible defenses available to her, or

any mitigating circumstances. Nor did the court investigate if Hedge was equipped

to proceed with self-representation. Without these advisements, Hedge’s waiver

was not knowing, intelligent, or voluntary. See Martin at ¶ 44-45.

The dissent states that in Ohio, a court must review “the particular

facts and circumstances surrounding the case, including the background,

experience, and conduct of the accused” when determining whether the waiver was

valid, citing State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93,

¶ 30, citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461

(1938). In Obermiller, the Ohio Supreme Court held that the trial court had not

denied the defendant’s right to self-representation when, after a lengthy colloquy

with the court, the defendant withdrew his request to represent himself. The court

recognized that “a defendant’s unambiguous assertion of the right to self-

3 Whether an error in transcription or in the trial court’s statement, the record
shows that the trial court advised Hedge that she faced up to 108 days in jail when the
maximum penalty for a first-degree misdemeanor is 180 days in jail.
representation triggers a trial court’s duty to conduct the Faretta inquiries to

establish that the defendant is knowingly and voluntarily waiving his constitutional

right to counsel.” Id. The court also recognized that these inquiries include advising

the defendant 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.’” Id., quoting Faretta at 835.

The court observed that after the defendant in that case requested to

waive counsel, the three-judge panel

extensively questioned Obermiller regarding his request to waive
counsel. The questions focused on Obermiller’s familiarity with the
criminal-justice system and [the statute under which he was charged],
his educational background (with an emphasis on Obermiller’s lack of
legal education), and his knowledge of trial procedure. The panel [also]
explored the various pitfalls related to self-representation, warned
Obermiller that he would be held to the same standards as would a
licensed attorney, and discussed with him the possible claims that he
would forfeit on appeal if he waived counsel. * * *

Finally, the panel read parts of the indictment into the record and
questioned Obermiller about his awareness of the crimes with which he
was charged and whether he understood the concepts of lesser-
included and inferior-degree offenses.

***

This colloquy lasted approximately 34 minutes[.]

Id. at ¶ 38-40. In reviewing whether a 34-minute colloquy was excessive, the court

confirmed that in Ohio, a trial judge “‘must investigate [a defendant’s request for

self-representation] as long and as thoroughly as the circumstances of the case

before him demand.’” Id. at ¶ 42, quoting Von Moltke v. Gillies, 332 U.S. 708, 723-

724, 68 S.Ct. 316, 92 L.Ed. 309 (1948). The court reasoned that “[a] less searching
colloquy [under the circumstances of that case] would have been nothing more than

‘token obedience’ to the important rights guaranteed by the Sixth Amendment.” Id.,

quoting Von Moltke at 723.

The dissent’s focus on Hedge’s performance at trial is misplaced. The

dissent searches the record for any indication that Hedge appreciated the dangers

and disadvantages of self-representation and understood defenses to the charge.

Obermiller is clear that a trial court conducts the Faretta inquiry up front, without

reliance on a reviewing court to conduct that inquiry by inference and after the fact.

We recognize that Obermiller involved a capital case and warranted a 34-minute

colloquy to ensure the trial court engaged in something more than “token obedience

to,” or even substantial compliance with, the defendant’s right to counsel. This is

not a capital case. However, even in misdemeanor cases in which the defendant

elects self-representation, the trial court still has a duty to make at least some

investigation of the defendant’s educational background, familiarity with the

criminal-justice system, understanding of the charge, and knowledge of trial

procedure to determine whether the defendant is equipped to proceed with self-

representation, as well as explore, even if briefly, the pitfalls of self-representation,

defenses to the charges, mitigation, and possible claims that the defendant might

lose on appeal by waiving counsel to ensure that the defendant makes the choice

with “eyes open.” See Obermiller at ¶ 41. Nothing in the record shows that the

municipal court made this inquiry, without which Hedge’s waiver is invalid.
 When remedying an invalid waiver in petty offense cases, panels in

this and other appellate districts have sometimes vacated the conviction and

ordered a new trial. See Nicholson, 8th Dist. Cuyahoga No. 100577, 2014-Ohio-

4671, at ¶ 18 (vacating the conviction); Berea v. Ferich, 8th Dist. Cuyahoga No.

99258, 2013-Ohio-3248, ¶ 22 (same); Cleveland v. Anderson, 8th Dist. Cuyahoga

No. 97787, 2013-Ohio-165, ¶ 15 (same); and Garfield Hts. v. Reda, 8th Dist.

Cuyahoga No. 73558, 1998 Ohio App. LEXIS 5060, 8-9 (Oct. 29, 1998) (same).

Other panels have upheld the conviction and vacated only the jail

sentence and community-control sanction. See Cleveland v. Daniels, 8th Dist.

Cuyahoga No. 106136, 2018-Ohio-4773, ¶ 15 (vacating jail sentence); Garfield Hts.

v. Williams, 8th Dist. Cuyahoga No. 102279, 2016-Ohio-381, ¶ 18 (vacating the jail

sentence and community-control sanction); Lyndhurst v. Lasker-Hall, 8th Dist.

Cuyahoga No. 102806, 2016-Ohio-108, ¶ 14 (vacating the jail sentence); Parma v.

Wiseman, 8th Dist. Cuyahoga No. 102404, 2015-Ohio-4983, ¶ 13 (same);

Lyndhurst v. Di Fiore, 8th Dist. Cuyahoga No. 93270, 2010-Ohio-1578, ¶ 15

(vacating the jail sentence if the defendant’s charges had not been amended to a

single minor misdemeanor before trial); Lakewood v. McDonald, 8th Dist.

Cuyahoga No. 84465, 2005-Ohio-394, ¶ 11 (vacating the community-control

sanction); Cleveland v. Crable, 8th Dist. Cuyahoga No. 67073, 1995 Ohio App.

LEXIS 959, 11 (Mar. 27, 1995) (vacating the jail sentence); Oakwood v. Shackelford,

8th Dist. Cuyahoga No. 50062, 1986 Ohio App. LEXIS 5486, 5-6 (Jan. 30, 1986)

(same).
 The remedy of vacating only the jail sentence and community-control

sanction arises from the language of Crim.R. 44(B) and the assumption that a

defendant is not entitled to counsel if no sentence of confinement is imposed. State

v. Wamsley, 2016-Ohio-2885, 64 N.E.3d 489, ¶ 18 (5th Dist.), citing Williams, 8th

Dist. Cuyahoga No. 102279, 2016-Ohio-381. Hedge points out that this court’s

precedent of vacating only the jail sentence and community-control sanction either

precedes or does not cite State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, 41

N.E.3d 1156, which observed, “whether jail or prison was actually imposed as a

disposition is irrelevant. It is the potential sanction that matters.” (Emphasis sic.)

Id. at ¶ 22.

We acknowledge that the question in Bode was “whether the state

may use an uncounseled juvenile adjudication to enhance penalties for an adult

conviction for operating a motor vehicle while intoxicated (‘OVI’) under

R.C. 4511.19(G)(1)(d).” Id. at ¶ 1. Bode extended the rule in State v. Brooke, 113

Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, from adults to juveniles to hold

that “an adjudication of delinquency may not be used to enhance the penalty for a

later [OVI] offense * * * when the adjudication carried the possibility of

confinement, the adjudication was uncounseled, and there was no effective waiver

of the right to counsel.” Id. We find the reasoning supporting the court’s holding in

Bode persuasive given that the theft charge against Hedge carried the possibility of

confinement, the adjudication was uncounseled, and Hedge’s waiver of her right to

counsel was ineffective.
 As the Bode Court observed, the right to counsel under the federal

constitution is limited to cases in which actual incarceration is imposed. Id. at ¶ 23,

citing Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979);

Nichols v. United States, 511 U.S. 738, 743, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994).

Nevertheless, “‘many, if not the majority, of [s]tates guarantee the right to counsel

whenever imprisonment is authorized by statute, rather than actually imposed.’”

Id., quoting Nichols at 748, fn. 12. In Ohio, the possibility of confinement is the

determining factor whether counsel is necessary in a particular case. Id. at ¶ 24,

citing State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, 21 N.E.3d 1033. Bode

thus questions whether there is “any logic or purpose in the felony/misdemeanor

distinction,” finding that an “attorney is crucial whenever there is the possibility of

custody,” which is precisely “what an attorney will protect against.” (Emphasis sic.)

Id.

Other districts have followed Bode in recognizing that the appropriate

remedy absent an effective waiver is to order a new trial, not vacate the jail portion

of the defendant’s sentence. See State v. Condos, 9th Dist. Summit No. 29782,

2022-Ohio-112, ¶ 11 (revisiting State v. Ott, 9th Dist. Summit No. 27953, 2017-Ohio-

521, and State v. Owens, 9th Dist. Summit No. 29098, 2019-Ohio-2206, and

reaffirming that a new trial is the proper remedy following Bode); see also Wamsley,

2016-Ohio-2885, 64 N.E.3d 489, at ¶ 18-25.

That a new trial is the proper remedy under Bode is bolstered by a

more recent decision of the Ohio Supreme Court in State ex rel. Ogle v. Hocking
Cty. Common Pleas Court, Slip Opinion No. 2021-Ohio-4453. In Ogle, the court

reaffirmed the United States Supreme Court’s holding in Zerbst, 304 U.S. 458, 58

S.Ct. 1019, 82 L.Ed. 1461 (1938), that “‘[a] court’s jurisdiction at the beginning of

trial may be lost “in the course of proceedings” due to failure to complete the court—

as the Sixth Amendment requires—by providing counsel for an accused who is

unable to obtain counsel, who has not intelligently waived this constitutional

guaranty, and whose life or liberty is at stake.’” Id., citing Zerbst at 468. Recognizing

that self-representation is disfavored and every reasonable presumption against

waiver of counsel should be indulged, the Ogle Court concluded that the result of an

ineffective waiver of counsel is that the conviction is void. Id. at ¶ 12, 16.

We follow Ogle in finding that without a knowing, intelligent, and

voluntary waiver of counsel, the conviction is void, and Bode in finding that the

proper remedy in such circumstances is to vacate the conviction.

We therefore sustain Hedge’s third assignment of error, vacate her

conviction, and remand for further proceedings, including a new trial if necessary.

In her first assignment of error, Hedge argues that the municipal

court failed to comply with Crim.R. 5 by not advising Hedge of the necessity of

demanding a jury trial. In her second assignment of error, Hedge argues that the

municipal court erred in denying Hedge her right to a jury trial absent a knowing,

intelligent, and voluntary waiver. Having sustained Hedge’s third assignment of

error, her first and second assignments of error are moot. App.R. 12(A)(1)(c).

Judgment vacated and remanded.
 It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

municipal court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

__________________________
MARY J. BOYLE, JUDGE

EILEEN T. GALLAGHER, J., CONCURS IN JUDGMENT ONLY;
SEAN C. GALLAGHER, A.J., DISSENTS (WITH SEPARATE OPINION
ATTACHED)

SEAN C. GALLAGHER, A.J., DISSENTING:

I respectfully dissent and would affirm the decision of the court. The

majority’s decision, in effect, creates a rule that the failure to articulate each and

every pitfall of self-representation in a petty offense case nullifies a defendant’s

ability to knowingly, intelligently, and voluntarily waive the right to counsel. I

cannot join that conclusion, which is based on Hedge’s failure to provide a complete

representation of our standard of review, and therefore, I respectfully dissent.

Although the majority has accurately set forth the black-letter law in

Ohio on waiving the right to counsel for petty offenses, omitted from the discussion

is that appellate courts must determine whether “a waiver of the right to counsel in

a no contest plea is voluntarily, intelligently, and knowingly made by looking to the
totality of the circumstances.” (Emphasis added.) Mayfield Hts. v. Aziz-Hakim,

8th Dist. Cuyahoga No. 98176, 2012-Ohio-5890, ¶ 6, citing State v. Calvillo, 76 Ohio

App.3d 714, 719, 603 N.E.2d 325 (8th Dist.1991), citing State v. Carter, 60 Ohio

St.2d 34, 38, 396 N.E.2d 757 (1979). We do not review the advisements in isolation

or without consideration of the defendant’s individual circumstances, but must

instead consider whether the defendant’s particular situation compels a reversal. Id.

In Ohio, the determination of whether a waiver of counsel was valid

depends “upon the particular facts and circumstances surrounding that case,

including the background, experience, and conduct of the accused.” (Emphasis

added.) State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93,

¶ 30, citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461

(1938). “Whether a defendant knowingly, intelligently, and voluntarily waived the

right to counsel is an issue that we review de novo.” State v. Furr, 1st Dist. Hamilton

No. C-170046, 2018-Ohio-2205, ¶ 10, citing State v. Nelson, 2016-Ohio-8064, 75

N.E.3d 785, ¶ 17 (1st Dist.). Under the de novo review of the totality of the

circumstances, we should be overruling Hedge’s argument based on the failure to

present a discussion regarding the particular facts and circumstances of her case.

App.R. 16(A)(7).

Hedge has not presented the underlying facts or personal

circumstances of her case, or an explanation of the trial proceedings, much less has

she provided any discussion of how her particular circumstances warrant the

reversal of her conviction and remand for new trial. App.R. 16. Instead, Hedge asks
us to review the matter for structural error without regard to her particular

circumstances. Appellant brief at fn.1. According to Hedge, “it is clear” that the trial

court erred based on Berea v. Ferich, 2013-Ohio-3248, ¶ 8, in light of the “structural

error.” Hedge’s request is not only contrary to black-letter law, but also as noted by

the dissent in Ferich, the majority’s position creates an outcome that imposes too

high of a burden for petty offense cases — treating a petty offense as if it were a

serious one for the purposes of determining the validity of the waiver. Id. at ¶ 30.

Tellingly, the citations in the majority opinion fall into the same trap as those from

Ferich, heavily relying on the advisement requirements of serious offense cases. Id.

at ¶ 28. As already noted in Ferich, in State v. Brooke, 113 Ohio St.3d 199, 2007-

Ohio-1533, 863 N.E.2d 1024, ¶ 39, the Ohio Supreme Court affirmed the more

broadly stated advisements that we are facing here by distinguishing between the

severity of the underlying offenses. Id.

But regardless, in light of Hedge’s failure to present the complete

standard of review and to present the particular circumstance that preclude her

from intelligently waiving her right to counsel, in reviewing the transcript and the

record as we must to undertake a de novo review of the proceedings, it is apparent

that Hedge was provided the required advisements as set forth in State v. Gibson,

45 Ohio St.2d 366, 373, 345 N.E.2d 399 (1976), based on her particular

circumstances. This court has affirmed a waiver of counsel based on similar

advisements. Lakewood v. Lane, 8th Dist. Cuyahoga No. 104534, 2017-Ohio-1039,

¶ 15-17; see also Brooke; State v. Taylor, 8th Dist. Cuyahoga No. 90674, 2008-Ohio-
5255, ¶ 15. Thus, the sole issue is whether the court provided sufficient information

to provide Hedge with “an apprehension” of the “possible defenses to the charges

and circumstances in mitigation thereof, and all other facts essential to a broad

understanding of the whole matter.” In Hedge’s particular situation, in

consideration of the totality of the circumstances, Hedge’s waiver of her right to

counsel was valid because her conduct at trial demonstrated an appreciation of the

dangers of self-representation and knowledge of the defenses to the charge, giving

rise to the inference that she was aware of the defenses and mitigation at the time of

waiving her right to counsel.

Although the parties failed to provide any factual background as

required under App.R. 16(A)(6), that background is relevant to Hedge’s ability to

understand the proceedings. The theft charge arose from a dispute between

neighbors. The victim and her live-in significant other were arguing, causing the

victim’s possessions to be placed in the hallway of the apartment building. Several

items, like a child’s swing and a child’s backpack, were either placed inside Hedge’s

apartment to be held until the victim could retrieve them (according to Hedge), or

were taken in retribution for a broken fingernail Hedge suffered as a result of a

scuffle between Hedge and the victim (according to the victim). The trial came down

to the credibility of the witnesses, the victim, and Hedge — as Hedge argued at trial.

The trial court found the state’s witnesses to be more credible.

At trial, Hedge cross-examined the witnesses seeking to highlight the

discrepancies between the witnesses’ testimony and between prior statements. Her
cross-examination demonstrates an appreciation for the defenses to the charges and

the means to proving those defenses. In addition, after taking the stand in her own

defense and being advised of her Fifth Amendment rights, Hedge presented her own

witnesses, attempting to demonstrate that she did not illegally possess the items but

instead was holding them for the victim. Further, when second-guessing her

decision to waive counsel during trial at the start of the defense’s case in chief based

on her fear of not knowing how to proceed, the trial court provided Hedge with the

latitude to present her defense. The city objected to several lines of questions on

hearsay grounds, which were overruled upon Hedge’s explaining that she was not

using the testimony for the truth of the matter asserted — with the trial court

providing the legal phrasing after Hedge explained the reason for the testimony in

layman’s terms.

In short, Hedge was able to present the defenses to the merits of the

charge, from which an inference arises demonstrating Hedge’s appreciation of the

possible defenses available to her, and of the mitigating circumstances. Under the

totality of the circumstances, Hedge has not demonstrated that her waiver was

anything but freely given. Aziz-Hakim, 8th Dist. Cuyahoga No. 98176, 2012-Ohio-

5890 (the defendant’s knowledge of the court system belied his claims of not

understanding the gravity of his waiver). Because Hedge was aware of the defenses

at trial, any advisement by the trial court of those specific defenses and any potential

mitigation at the time of her waiver would have been redundant. Hedge was aware

of that which she now claims precluded her from knowingly, voluntarily and
intelligently waiving her right to counsel such that it cannot be demonstrated that

the advisements the majority claims are lacking would have altered the course of the

proceedings.

And finally, in light of the majority outcome, we cannot avoid having

to consider the remedy for invalid waivers of counsel in misdemeanor cases through

this district’s en banc process. As the majority notes, this court is divided as to the

appropriate remedy for finding a waiver of counsel invalid. Some panels vacate the

sentence only, but maintain the finding of guilt. Garfield Hts. v. Williams, 8th Dist.

Cuyahoga No. 102279, 2016-Ohio-381, ¶ 18 (in part recognizing that a community-

control sanction with a suspended sentence is an “actual imprisonment” under

Crim.R. 44). Other panels vacate the conviction, in terms of both the finding of guilt

and the final sentence, and remand for a new trial. Ferich, 8th Dist. Cuyahoga No.

99258, 2013-Ohio-3248, at ¶ 22. The majority’s attempt to distinguish those cases

based on the fact that the potential sentence is the controlling factor is misplaced.

In both divergent branches of this district’s conclusions, the potential sentence is

irrelevant to the outcome.

Neither State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d

1156, ¶ 28, nor State ex rel. Ogle v. Hocking Cty. Common Pleas Court, 2021-Ohio-

4453, ¶ 12, rescue this district from having to initiate en banc proceedings to answer

the question of the appropriate remedy. In Bode, the Ohio Supreme Court held that

“the possibility of confinement as a disposition for a juvenile adjudication requires

waiver of the right to counsel by the juvenile before the adjudication may be validly
used as an enhancement offense under R.C. 4511.19.” That holding has no bearing

on the remedy to an invalid waiver of counsel in misdemeanor cases. But more

important, in the potential conflict case, Williams, the panel concluded that a

suspended sentence coupled with the imposition of community-control sanctions

constitutes “actual imprisonment” triggering the need for counsel. Williams at ¶ 18.

Despite that conclusion, the panel vacated the sentence, but retained the finding of

guilt.

Ogle is likewise inapplicable. In that writ case, the Ohio Supreme

Court confirmed that a sentencing entry was void for want of jurisdiction based on

the failure to provide counsel before sentencing. Ogle at ¶ 12, 19. That conclusion

is not in dispute and does not impact the validity of this district’s cases concluding

that the remedy for the improper wavier of counsel in petty offense cases is to vacate

the sentence. This district’s differing conclusions as to the appropriate remedy for

an invalid waiver of counsel in misdemeanor cases create a mess and are in need of

resolution through App.R. 26.

Because Hedge failed to provide a discussion of the totality of her

particular circumstances and instead relies on a generic recitation of black-letter

law, I would overrule her assigned error challenging her waiver of counsel. As a

result, this case is not the appropriate vehicle to resolve this district’s conflicting

statements of law. For this reason, I would address her remaining claims on the

merits and I respectfully dissent.