[Cite as State v. Owens, 2011-Ohio-2503.]


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

STATE OF OHIO                                       C.A. No.       25389

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
FREDERICK T. OWENS                                  COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 2008 05 1452

                                 DECISION AND JOURNAL ENTRY

Dated: May 25, 2011



        BELFANCE, Presiding Judge.

        {¶1}    Appellant, Frederick Owens, appeals his conviction from the Summit County

Court of Common Pleas. This Court affirms.

                                               I.

        {¶2}    On April 30, 2008, two Akron police officers stopped Mr. Owens based on their

suspicion that he was engaged in criminal activity. Mr. Owens had parked in a driveway. The

police officers testified that the way Mr. Owens had been driving led them to think he had pulled

into the driveway to avoid police rather than because he resided there. The license plates on the

vehicle Mr. Owens was driving came back to a rental company.

        {¶3}    As they approached Mr. Owens’ vehicle, the officers saw Mr. Owens reaching

around inside the car. When instructed to stop, Mr. Owens turned the car back on and put it into

gear. Mr. Owens started to back out of the driveway and one officer testified that Mr. Owens

nearly ran him over at this point. The officers ran back to their cruiser and turned it around to
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face Mr. Owens’ vehicle. Mr. Owens parked his car on the lawn and ran into the house. At that

point in time, the officers still did not know whether Mr. Owens lived at the house.

        {¶4}       Mr. Owens closed the front door behind him when he entered the house. Akron

police officers kicked the door down. When the officers opened the door, they saw Mr. Owens

walking toward them with his hands up, coming from the direction of the bathroom. He told the

officers, “ ‘You’ll never find it. I flushed the dope.’ ” A woman later identified as Mr. Owens’

mother was in the front room of the house at that point. One officer testified that Mr. Owens’

mother gave permission for the police to search the bathroom after Mr. Owens stated that he had

flushed the drugs. The officers went back to the bathroom and found a bag of crack cocaine in

the toilet tank.

        {¶5}       In May 2008, Mr. Owens was indicted on one count each of: possession of drugs,

in violation of R.C. 2925.11(A)(C)(4), a second degree felony; trafficking in cocaine in violation

of R.C. 2925.03(A)(C)(4), a second degree felony; tampering with evidence in violation of R.C.

2921.12, a third degree felony; possessing of criminal tools in violation of R.C. 2923.24(B)(3), a

fifth degree felony; obstructing official business in violation of R.C. 2921.31(A), a second

degree misdemeanor; resisting arrest in violation of R.C. 2921.33, a second degree misdemeanor;

criminal damaging or endangering in violation of R.C. 2909.06(A)(1), a second degree

misdemeanor; and disorderly conduct in violation of R.C. 2917.11(A)(1), a fourth degree

misdemeanor. The court appointed counsel to represent Mr. Owens, who pleaded not guilty on

all counts. Counsel filed a motion to suppress evidence, which the court denied.

        {¶6}       The trial originally set for September 4, 2008 was cancelled after Mr. Owens

requested new counsel on August 29, 2008. The court appointed new counsel to represent Mr.

Owens.
                                                3


       {¶7}    On January 15, 2009, Mr. Owens’ second trial date, the court held a pretrial

hearing immediately before proceeding to voir dire. During the hearing, Mr. Owens requested to

be heard and asked the court if he “could have a different court date to represent myself[.]” The

court discussed with Mr. Owens at some length the possibility of moving his trial date and

allowing Mr. Owens to represent himself, and denied both requests. The court adamantly

expressed the view that Mr. Owens would do better to proceed with counsel and also that Mr.

Owens was attempting to further delay the trial. After voir dire, Mr. Owens indicated that he

would like to plead and the court engaged in discussions with him out of the presence of the jury.

The court eventually refused to accept Mr. Owens’ plea because he was not satisfied with his

attorney. During the course of the discussions, Mr. Owens also reiterated his desire to represent

himself after a continuance or to obtain new counsel. The court denied both requests.

       {¶8}    The jury found Mr. Owens guilty on all counts except trafficking, of which the

court had acquitted him pursuant to Crim. R. 29, and possessing criminal tools, which the State

had dismissed. The court ordered a total sentence of four years of incarceration, followed by a

three year period of mandatory post-release control.

       {¶9}    Mr. Owens now appeals from that order, presenting two assignments of error.

                                               II.

                                 ASSIGNMENT OF ERROR I

       THE FOURTH AMENDMENT REQUIRES REVERSAL OF THE TRIAL
       COURT’S DENIAL OF THE MOTION TO SUPPRESS BECAUSE THE
       TRIAL COURT’S FINDING OF FACTS ARE ERRONEOUS AS THE TRIAL
       COURT FOUND THAT A RESIDENT INSIDE CONSENTED TO THE
       POLICE KICKING DOWN THE FRONT DOOR AND SEARCH OF A
       BATHROOM.
                                                 4


       {¶10} Mr. Owens alleges in his first assignment of error that the trial court erred in

determining that Mr. Owens’ mother, Ms. Boykin, consented to the police entry into her home

and to their search of her bathroom. We disagree.

       {¶11} An appellate court’s review of a motion to suppress presents mixed questions of

law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, at ¶8. The appellate court

accepts the trial court’s findings of fact as true if supported by competent, credible evidence. Id.

The court makes an independent, de novo determination of whether those facts satisfy the

applicable legal standard. Id.

       {¶12} Mr. Owens disputes the trial court’s finding that Ms. Boykin consented to the

search of her bathroom. Mr. Owens argues that this finding is clearly erroneous because it is

undisputed that the officers kicked in the front door. The officers testified that Ms. Boykin

consented after they had entered the house and it is therefore not clear why their method of entry

is relevant to Ms. Boykin’s subsequent decision to allow them to search her bathroom. The trial

court did not find that Ms. Boykin consented to the officers’ entry into her home, only to the

subsequent search of the bathroom.

       {¶13} Two officers testified that Ms. Boykin consented to a search of her bathroom.

Their testimony is competent, credible evidence in support of the trial court’s finding that she

consented to the search and so that finding is not erroneous.          See id.   Mr. Owens’ first

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR II

       “THE TRIAL COURT DEPRIVED APPELLANT OF HIS RIGHTS UNDER
       THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION BY
       REPEATEDLY REFUSING TO ALLOW HIM TO PROCEED TO TRIAL
       WITHOUT AN ATTORNEY.”
                                                5


       {¶14} In his second assignment of error, Mr. Owens argues that the trial court deprived

him of his constitutional right to represent himself. We disagree.

       {¶15} The Sixth and Fourteenth Amendments to the United States Constitution

guarantee a defendant the right of self-representation at a state criminal trial. State v. Gibson

(1976), 45 Ohio St.2d 366, paragraph one of the syllabus. “Since the right of self-representation

is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to

the defendant, its denial is not amenable to ‘harmless error’ analysis.” McKaskle v. Wiggins

(1984), 465 U.S. 168, 177, fn.8. A trial court then commits reversible error per se in denying a

defendant’s properly invoked right to self representation. State v. Vrabel, 99 Ohio St.3d 184,

2003-Ohio-3193, at ¶49.

       {¶16} A defendant, however, may not abuse the right of self-representation; a motion to

proceed pro se “may be denied when circumstances indicate that the request is made for

purposes of delay or manipulation of the trial process.” State v. Dean, 127 Ohio St.3d 140,

2010-Ohio-5070, at ¶68. A defendant’s invocation of the right to self-representation must be

timely and unequivocally asserted. State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, at ¶38.

It must also be voluntary, knowing, and intelligent. Gibson, 45 Ohio St.2d at paragraph one of

the syllabus. With this background in mind, we turn review the trial court’s denial of Mr.

Owens’ request to proceed pro se.

                                     Invocation prior to trial

       {¶17} We note that it is unclear whether a trial court’s denial of a request to proceed pro

se, asserted on the day of trial but before voir dire, is reviewed de novo or for an abuse of

discretion. In reviewing this issue, the Supreme Court of Ohio has examined cases applying an

abuse of discretion standard to motions made “on the day of trial after the clerk had called the
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roll of jurors” (Vrabel at ¶51, citing Robards v. Rees (C.A.6 1986), 789 F.2d 379, 383) or “at the

commencement of voir dire.” Vrabel at ¶51, citing State v. Christian (Minn. 2003), 657 N.W.2d

186, 193. In Vrabel, the Supreme Court reviewed a denial of a motion made after voir dire was

complete and applied an abuse of discretion standard. Vrabel at ¶¶51-53 (holding that trial court

did not abuse its discretion in such circumstances).

       {¶18} In comparison, we have not found any case law articulating an abuse of discretion

standard of review for requests made at any point prior to the commencement of voir dire. See,

e.g., Cassano at ¶¶31-42 (finding that motion made three days before trial date was untimely

without articulating standard of review); United States v. Mackovich (C.A.10 2000), 209 F.3d

1227, 1237-1238; United States v. Cano (C.A.5 2008), 519 F.3d 512, 515-16 (applying de novo

review to request to proceed pro se in sentencing that was made eighteen days before

sentencing); but, see, People v. Abdu (Colo.App. 2009), 215 P.3d 1265, 1267 (discussing how

unsettled the standard of review is in federal and Colorado courts); People v. Caird (1998), 63

Cal.App.4th 578, 583-84 (stating that if motion is not made “within a reasonable time prior to

commencement of trial[,]” review of denial is for abuse of discretion). It is unclear, based on

these cases, what standard of review would apply to this case, where the right was first invoked

on the morning of trial, before voir dire commenced. Because we find that the trial court did not

err in denying the motion and would not reverse the judgment on appeal under either standard,

we need not resolve that question in this case.

       {¶19} Upon review of the record before us, we conclude that Mr. Owens’ request to

represent himself was not timely.      Mr. Owens first attempted to invoke his right of self-

representation more than eight months after his initial indictment, on the morning voir dire was

scheduled to begin. The court had already postponed his trial for several months in order to
                                                  7


accommodate Mr. Owens’ request for new counsel, which had been made about a week before

his first trial date. Prior to the second trial date, he had not expressed any dissatisfaction with his

new attorney.    In making the request just before the commencement of trial, Mr. Owens

explicitly sought to delay the trial further by seeking a continuance to so he could prepare to

represent himself. See Dean at ¶68; Cassano at ¶41 (affirming denial of request for self-

representation that was made “only in the context of supporting [a] last-minute request for

delay[.]”). Based upon the circumstances before us, we conclude that Mr. Owens’ right to

represent himself was not invoked in a timely manner prior to trial and the trial court did not err

in denying the request. See Vrabel at ¶¶49, 53; Cassano at ¶40.


                              Invocation after commencement of trial

       {¶20} After the jury was sworn in, the court held a further hearing because Mr. Owens

had indicated he would like to plead. There were two plea bargains offered and Mr. Owens

spent some time asking questions trying to understand the specific details of the offers. After

Mr. Owens changed his mind a few times about whether to plead and which plea to accept, the

court instructed him that he could accept a plea or go to trial, but that he might not delay the

proceedings further.

       {¶21} During this discussion, Mr. Owens stated that he wanted to represent himself and

that he thought he could have done a better job than his attorney. He then indicated he would

take one of the plea bargains, but during the colloquy, he stated that he was not satisfied with his

attorney’s representation. He stated that he wanted new counsel and also that he wanted to

represent himself. Mr. Owens acknowledged that if he was permitted to represent himself, he

would need time to prepare:
                                                8


       “THE COURT:             If you want [to] try a case on your own without a lawyer,
       you’re here in trial, you ready to go to trial right now?

       THE DEFENDANT: No, that’s why I asked you for time. * * * I would like
       some time to prepare for this case myself.”

The court also repeatedly inquired as to Mr. Owens’ dissatisfaction with his appointed counsel.

Mr. Owens expressed the view that counsel was “supposed to be with me every step of the way,

not guilty.” Mr. Owens was apparently dissatisfied with counsel’s opinion that the chances of

winning at trial were not good and counsel’s advice that Mr. Owens would do well to take a plea

bargain. The court refused to accept Mr. Owens’ plea because he had stated that he was not

satisfied with his appointed counsel. Before recess, Mr. Owens indicated, yet again, that he

would like to plead. The court stated that plea negotiations were closed and the Mr. Owens’ only

option would be to plead to the indictment.

       {¶22} After the recess, the court indicated that Mr. Owens had wanted to say something

further. Mr. Owens declined to speak and the court said “For the record, this is your second

lawyer and I’m getting the feeling that all this is just delaying, I want to plead, I don’t want to

plead. That’s what it feels like.”

       {¶23} We first note that because voir dire had been completed, the trial court’s denial of

Mr. Owens’ second request to represent himself is reviewed only for an abuse of discretion.

Vrabel at ¶53. It is apparent that the trial court did not believe that Mr. Owens actually desired

to proceed pro se. In other words, the trial court did not conclude that Mr. Owens’ request was

unequivocal. Rather, the trial court believed that Mr. Owens’ true motive in seeking new

counsel was for the purpose of obtaining a continuance and further delaying the proceedings.

See Dean at ¶68. Under the facts of this case, we cannot conclude that the trial court abused its

discretion in denying the request. See Vrabel at ¶53.
                                                 9


       {¶24} Mr. Owens’ second assignment of error is overruled.

                                                III.

       {¶25} Because we have overruled both of Mr. Owens’ assignments of error, we affirm

the judgment of the trial court.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

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

Pleas, County of Summit, 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(E). 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.

       Costs taxed to Appellant.


                                                       EVE V. BELFANCE
                                                       FOR THE COURT

WHITMORE, J.
CONCURS

CARR, J.
CONCURS IN JUDGMENT ONLY
                                        10


APPEARANCES:

DONALD GALLICK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
