[Cite as State v. Koehler, 2016-Ohio-3384.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               WYANDOT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 16-15-10

        v.

BRANDALYNN D. KOEHLER,                                   OPINION

        DEFENDANT-APPELLANT.




                Appeal from Wyandot County Common Pleas Court
                           Trial Court No. 13-CR-0038

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                              Date of Decision: June 13, 2016




APPEARANCES:

        Emily P. Beckley for Appellant

        Eric J. Figlewicz for Appellee
Case No. 16-15-10


PRESTON, J.

       {¶1} Defendant-appellant, Brandalynn D. Koehler (“Koehler”), appeals the

November 23, 2015 judgment entry of sentence of the Wyandot County Court of

Common Pleas. We affirm in part, and reverse in part.

       {¶2} On April 10, 2013, the Wyandot County Grand Jury indicted Koehler

on one count of possession of heroin in violation of R.C. 2925.11(A), a fifth-

degree felony. (Doc. No. 1). On May 7, 2013, Koehler appeared for arraignment

and entered a plea of not guilty. (Doc. No. 7).

       {¶3} On August 14, 2013, Koehler filed a motion for intervention in lieu of

conviction. (Doc. No. 13). On August 21, 2013, the State filed its response to

Koehler’s motion, stating that it did not oppose her motion so long as she

“undergoes an alcohol/drug dependency evaluation and provides the Court with a

copy of his [sic] treatment plan and * * * enters a plea of ‘Guilty’ to the

Indictment.” (Doc. No. 15).

       {¶4} On October 17, 2013, Koehler withdrew her not-guilty plea and

entered a plea of guilty. (Doc. No. 18). In exchange for her change of plea, the

State agreed not to oppose Koehler’s motion for intervention in lieu of conviction.

(Id.). On October 24, 2013, the trial court accepted Koehler’s guilty plea, granted

Koehler’s motion for intervention in lieu of conviction, and deferred finding

Koehler guilty pending the satisfactory completion of her intervention. (Doc. No.


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19). The trial court ordered Koehler to serve two years of intervention supervision

with the Wyandot County Adult Probation Department. (Id.).

       {¶5} On October 8, 2015, Koehler’s probation officer filed a motion

requesting that Koehler’s probation be extended for one year, which the trial court

granted. (Doc. No. 22). On October 12, 2015, the State filed a motion requesting

that the trial court terminate Koehler’s intervention in lieu of conviction and

proceed with Koehler’s guilty plea and sentencing. (Doc. No. 23).

       {¶6} At the November 3, 2015 termination hearing, Koehler waived her

right to counsel. (Doc. Nos. 27, 28); (Nov. 3, 2015 Tr. at 3-5). Koehler admitted

that she violated the terms of her intervention in lieu of conviction. (Doc. No. 28);

(Nov. 3, 2015 Tr. at 5-7). Thus, the trial court concluded that there was probable

cause that Koehler violated the terms of her intervention in lieu of conviction.

(Doc. No. 28); (Nov. 3, 2015 Tr. at 6-7). As a result, the trial court found Koehler

guilty and sentenced her to two years of community-control sanctions. (Doc. No.

28); (Nov. 3, 2015 Tr. at 7, 11). The trial court filed its entry on November 23,

2015. (Doc. No. 28).

       {¶7} On November 23, 2015, Koehler, pro se, filed her notice of appeal.

(Doc. No. 29). On February 24, 2016, Koehler filed a motion requesting that the

trial court appoint her counsel for appellate purposes, which the trial court granted




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the next day. (Doc. Nos. 34, 35). Koehler raises two assignments of error for our

review.

                           Assignment of Error No. I

      The trial court erred in not appointing Counsel to Appellant in
      this matter.

      {¶8} In her first assignment of error, Koehler argues that the trial court

erred by not appointing her trial counsel at her intervention-in-lieu-of-conviction

termination hearing. In particular, Koehler argues that her waiver of trial counsel

was not knowing, intelligent, or voluntary.

      {¶9} “The Sixth Amendment to the United States Constitution provides that

an accused shall have the right ‘to have the Assistance of Counsel for his

defense.’” State v. Owens, 3d Dist. Allen, No. 1-07-66, 2008-Ohio-4161, ¶ 9,

quoting the Sixth Amendment to the U.S. Constitution. “Although a defendant

has a right to counsel, the defendant may ‘waive that right when the waiver is

voluntary, knowing, and intelligent.’” Id., quoting State v. Petaway, 3d Dist.

Logan No. 8-05-11, 2006-Ohio-2941, ¶ 8, citing State v. Gibson, 45 Ohio St.2d

366 (1976), paragraph one of the syllabus, citing Faretta v. California, 422 U.S.

806, 95 S.Ct. 2525 (1975). “‘“[T]o establish an effective waiver of right to

counsel, the trial court must make sufficient inquiry to determine whether

defendant fully understands and intelligently relinquishes that right.”’”      Id.,

quoting Petaway at ¶ 9, quoting Gibson at paragraph two of the syllabus. “In

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order for the defendant’s waiver of counsel to be valid ‘“such waiver must be

made with an apprehension 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.”’” Id. at ¶ 10, quoting Gibson at 377,

quoting Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316 (1948).

           {¶10} Furthermore, “Crim.R. 44(A) provides that a criminal defendant

charged with a serious offense is entitled to counsel ‘unless the defendant, after

being fully advised of his right to assigned counsel, knowingly, intelligently, and

voluntarily waives his right to counsel.’”1 State v. Schleiger, 141 Ohio St.3d 67,

2014-Ohio-3970, ¶ 20, quoting Crim.R. 44(A). “And Crim.R. 44(C) provides that

‘[w]aiver of counsel shall be in open court and the advice and waiver shall be

recorded as provided in Crim.R. 22. In addition, in serious offense cases the

waiver shall be in writing.’” Id., quoting Crim.R. 44(C).

           “[W]hen a criminal defendant 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.




1
    Crim.R. 2(C) defines a “serious offense” as “any felony.” Koehler was indicted on a fifth-degree felony.

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      If substantial compliance is demonstrated, then the failure to file a

      written waiver is harmless error.”

Id., quoting State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 39.

      {¶11} Koehler’s waiver of her right to trial counsel was knowing,

intelligent, and voluntary—that is, the trial court complied with the requirements

of Crim.R. 44(A) because it sufficiently inquired whether Koehler fully

understood and relinquished her right to counsel and obtained from Koehler a

written waiver of counsel. Regarding Koehler’s waiver of her right to counsel, the

following exchange took place:

      [Trial Court]:   Ms. Koehler, the State has moved to terminate your

                       intervention, which would result in the court, if it

                       was - - if the motion was successful, would result

                       in the court terminating the intervention and

                       proceeding to sentencing on your underlying case,

                       which subjects you to a maximum prison term of

                       twelve months and a $2,500 fine.

                       Knowing that, do you wish to have an attorney?

                       Because you’re entitled to an attorney, and an

                       attorney at public expense if you can’t afford one.




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      [Koehler]:       No.     I’ll be fine without it.     It’s pretty straight

                       forward.

      [Trial Court]:   But I mean, you know what you’re looking at

                       potentially?

      [Koehler]:       Yea. Well, Yea.

      [Trial Court]:   Remember anything you say can be used against

                       you. So, I’m just trying to tell you of your rights;

                       all right?

      [Koehler]:       Okay.        I’ll - - I mean, if it’s going to continually

                       go, yea, I guess I would need an attorney, but if we

                       settle it today then I don’t. I mean, we don’t have

                       to proceed in [sic] continue it just because I don’t

                       have an attorney today.

      [Trial Court]:   But I wanted you to know what you’re exposure is

                       here.

      [Koehler]:       I understand.

      [Trial Court]:   So, do you wish to have an attorney or not?

      [Koehler]:       No. Go ahead.

      [Trial Court]:   All right.

                       Understand, you can change your mind on that - -


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      [Koehler]:       Okay.

      [Trial Court]:   - - so, as we go along, if you say, all of a sudden - -

      [Koehler]:       Okay.

      [Trial Court]:   - - go with that attorney. Right now I’m going to

                       give you a waiver of counsel, which says you were

                       advised of your right to an attorney, an attorney at

                       public expense, but knowing that, you are waiving,

                       but you can change your mind.

      [Koehler]:       Okay.

(Nov. 3, 2015 Tr. at 3-5). Koehler signed the waiver. (Id. at 5). (See Doc. No.

27). The trial court further explained to Koehler the termination-hearing process,

the accusations against her, and the range of possible punishments to which

Koehler responded, “Okay. I already admitted that what [sic] I did, I smoked

weed. So, yes, I will just acknowledge that I did it.” (Nov. 3, 2015 Tr. at 5-6).

After accepting Koehler’s admission, the trial court asked Koehler if she was

prepared to proceed to sentencing to which Koehler responded, “Yea, you can go

ahead with sentencing, if that’s what you need to do.” (Id. at 7). At no time

during the hearing did Koehler express to the trial court that she did not

understand any aspect of the intervention-in-lieu-of-conviction termination

hearing or that she wished to stop the proceedings and obtain an attorney. (See


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Nov. 3, 2015 Tr.). Accordingly, based on our review of the record, Koehler

knowingly, intelligently, and voluntarily waived her right to counsel. See State v.

Crider, 3d Dist. Allen No. 1-13-20, 2014-Ohio-2240, ¶ 10.

      {¶12} Koehler’s first assignment of error is overruled.

                           Assignment of Error No. II

      The trial court erred in imposing a prison sentence, as well as a
      community control sanction.

      {¶13} In her second assignment of error, Koehler argues that the trial court

erred by sentencing her to a prison term and a community-control sanction.

      {¶14} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record or that the sentence is contrary to law.        State v.

Marcum, ___ Ohio St.3d ___, 2016-Ohio-1002, ¶ 22 (“R.C. 2953.08(G)(2)(a)

compels appellate courts to modify or vacate sentences if they find by clear and

convincing evidence that the record does not support any relevant findings under

‘division (B) or (D) of section 2929.13, division (B)(2)(3) or (C)(4) of section

2929.14, or division (I) of section 2929.20 of the Revised Code.”), quoting R.C.

2953.08(G)(2)(a); R.C. 2953.08(G)(2)(b).      See also State v. D.S., 10th Dist.

Franklin No. 15AP-790, 2016-Ohio-2856, ¶ 9, citing R.C. 2953.08(G)(2) and

Marcum. Clear and convincing evidence is that “‘which will produce in the mind

of the trier of facts a firm belief or conviction as to the facts sought to be

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established.’” Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469

(1954), paragraph three of the syllabus.

       {¶15} Koehler argues that her sentence is contrary to law based on this

court’s decision in State v. Hartman. 3d Dist. Van Wert No. 15-10-11, 2012-

Ohio-874. We agree. “In Hartman, this Court stated that after S.B. 2, a trial court

could not impose a prison sentence and community control sanctions on the same

offense.” State v. Jackson, 3d Dist. Defiance Nos. 4-12-08 and 4-12-09, 2012-

Ohio-5132, ¶ 19, citing Hartman at ¶ 6.           Reversing Hartman’s sentence, “[t]his

Court held that the trial court’s imposition of a prison term and community control

sanctions for the same offense was contrary to law.” Id., citing Hartman at ¶ 8.

See also State v. Berry, 3d Dist. Defiance No. 4-12-04, 2012-Ohio-4660, ¶ 24

(“Our holding in Hartman (and the cases that came before it) was thus that a trial

court could not explicitly sentence a defendant to prison and community control.”

(Emphasis sic.)).

       {¶16} Here, the trial court explicitly sentenced Koehler to a prison term and

community-control sanctions for the same offense. The trial court stated,

       The Defendant was advised that her compliance with, and

       completion of, the above sanctions will be monitored, and that his

       [sic] failure to comply with and complete same will lead to a longer

       or more restrictive sanction, of eleven (11) months in prison, to


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      which Defendant is hereby sentenced, with the imposition of that

      sentence deferred pending the satisfactory completion of the terms

      and conditions of Defendant’s community control. Said sentences

      shall be served concurrently.

(Emphasis added.) (Doc. No. 28). (See also Nov. 3, 2015 Tr. at 15). It is

improper for a trial court to sentence a defendant to a prison term and community-

control sanctions for the same offense, and defer the prison term pending the

satisfactory completion of the community-control sanctions. See State v. Bryan,

3d Dist. Shelby No. 17-11-43, 2012-Ohio-3308, ¶ 31 (Rogers, J. concurring

separately) (“A trial court may sentence an individual to either community control

or to a term of imprisonment. There is no authority to do both, and it is improper

to indicate that the prison term is deferred pending satisfactory completion of

community control.”), citing Hartman at ¶ 6, citing State v. Vlad, 153 Ohio

App.3d 74, 2003-Ohio-2930 (7th Dist.) and State v. Hoy, 3d Dist. Union Nos. 14-

04-13 and 14-04-14, 2005-Ohio-1093, ¶ 18.        As such, Koehler’s sentence is

clearly and convincingly contrary to law. Accordingly, we reverse that portion of

Koehler’s sentence and remand the matter for resentencing.

      {¶17} Koehler’s second assignment of error is sustained.

      {¶18} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued in assignment of error one, we affirm the


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judgment of the trial court. Having found error prejudicial to the appellant herein

in the particulars assigned and argued in assignment of error two, we reverse the

judgment of the trial court in part and remand for further proceedings consistent

with this opinion.

                                                      Judgment Affirmed in Part,
                                                           Reversed in Part and
                                                              Cause Remanded

SHAW, P.J. and ROGERS, J., concur.

/jlr




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