[Cite as State v. Belt, 2020-Ohio-1302.]


                                         COURT OF APPEALS
                                      RICHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                   JUDGES:
                                                 Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                      Hon. Craig R. Baldwin, J.
                                                 Hon. Earle E. Wise, Jr., J.
 -vs-
                                                 Case No. 2019-CA-0082
 MARK BELT

        Defendant-Appellant                      O P I N IO N




 CHARACTER OF PROCEEDINGS:                       Appeal from the Richland County Court of
                                                 Common Pleas, Case No. 2019-CR-0362


 JUDGMENT:                                       Affirmed

 DATE OF JUDGMENT ENTRY:                         March 31, 2020


 APPEARANCES:


 For Plaintiff-Appellee                          For Defendant-Appellant

 GARY BISHOP                                     WILLIAM T. CRAMER
 Prosecuting Attorney                            470 Old Worthington Road
 Richland County, Ohio                           Suite #200
                                                 Westerville, Ohio 43082
 JOSEPH C. SNYDER
 Assistant Prosecuting Attorney
 38 South Park Street
 Mansfield, Ohio 44902
Richland County, Case No. 2019-CA-0082                                                   2


Hoffman, P.J.
       {¶1}   Defendant-appellant Mark Belt appeals his convictions and sentence

entered by the Richland County Court of Common Pleas, on one count of aiding and

abetting the illegal assembly or possession of chemicals for the manufacture of

methamphetamine and one count of possession of criminal tools, following a jury trial.

Plaintiff-appellee is the state of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   Officer David Rowland of the Ontario Police Department was on routine

patrol during the midnight shift on April 26, 2019, when he initiated a stop of Appellant’s

vehicle after observing Appellant driving erratically. The officer ran Appellant’s license

and learned he had twelve open driver’s license suspensions. Officer Rowland advised

Appellant he was not permitted to drive, he would be cited, and his vehicle would be

towed. During an inventory search of the vehicle, Officer Rowland found a number of

items which, when taken together, appeared to be a functional methamphetamine lab.

Appellant was arrested and transported to the Ontario Police Department for booking.

       {¶3}   On May 24, 2019, the Richland County Grand Jury indicted Appellant on

one count of aiding and abetting the illegal assembly or possession of chemicals for the

manufacture of methamphetamine, in violation of R.C. 2925.041(A), a felony of the third

degree; and one count of possession of criminal tools, in violation of R.C. 2923.24(A), a

felony of the fifth degree. Appellant appeared before the trial court for arraignment on

June 6, 2019, and entered pleas of not guilty to the charges. The trial court appointed

Attorney Randall Fry to represent Appellant. The matter proceeded to jury trial on July

22, 2019.
Richland County, Case No. 2019-CA-0082                                                         3


         {¶4}   At the start of the second day of trial, the trial court, outside the presence of

the jury, stated it had been advised Appellant wanted a new attorney. The trial court

addressed Appellant, explaining Attorney Fry was appointed and Appellant could not fire

appointed counsel. The trial court added, as the trial had already started, it was too late

for Appellant to fire Attorney Fry and “Attorney Fry is representing you.” Tr. Vol. II at 187.

The trial court discussed the role of Attorney Fry as defense counsel, and the role of the

prosecutor. The trial court also explained the manner in which a trial is conducted. The

trial court stated it was in Appellant’s best interests to proceed with Attorney Fry

representing him. After a protracted discussion, the jury was brought in and testimony

continued. Appellant conferred with Attorney Fry throughout the remainder of the trial.

         {¶5}   After hearing all the evidence and deliberating, the jury found Appellant

guilty as charged. Appellant appeared before the trial court for sentencing on July 25,

2019. The trial court imposed an aggregate prison term of 48 months. The trial court

memorialized Appellant’s convictions and sentence via Sentencing Entry filed July 29,

2019.

         {¶6}   It is from this entry Appellant appeals, raising the following assignment of

error:



                THE     TRIAL     COURT        VIOLATED       APPELLANT’S         SIXTH

         AMENDMENT RIGHT TO WAIVE COUNSEL AND REPRESENT

         HIMSELF.
Richland County, Case No. 2019-CA-0082                                                     4


       {¶7}   A criminal defendant has a constitutional right to represent himself at trial.

State v. Johnson, 112 Ohio St.3d 210, 858 N.E.2d 1144, 2006–Ohio–6404, ¶ 89, citing

Faretta v. Cal. (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. A defendant may

proceed without counsel if the defendant has made a knowing, voluntary, and intelligent

waiver of the right to counsel. State v. Martin, 103 Ohio St.3d 385, 816 N.E.2d 227, 2004–

Ohio–5471, ¶24. See, also, Crim.R. 44(A) (defendant may forgo counsel after being fully

advised, knowingly, intelligently, and voluntarily waives right to counsel). A criminal

defendant must “unequivocally and explicitly invoke” the right to self-representation.

State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 38. Requiring

that a request for self-representation be both unequivocal and explicit helps to ensure a

defendant will not “tak[e] advantage of and manipulat[e] the mutual exclusivity of the rights

to counsel and self-representation.” United States v. Frazier–El, 204 F.3d 553, 559 (4th

Cir.2000). For this reason, courts must “indulge in every reasonable presumption against

waiver” of the right to counsel. Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51

L.Ed.2d 424 (1977).

       {¶8}   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. Johnson, supra at ¶ 89, quoting State v. Gibson, 45

Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph two of the syllabus; Martin at ¶ 39.

However, the United States Supreme Court has not prescribed a precise formula or script

to be read to a defendant who indicates he desires to proceed without counsel. Johnson,

supra at ¶ 101. To be valid, a waiver of the right to counsel must be made with an

apprehension of the nature of the charges, the statutory offenses included within them,
Richland County, Case No. 2019-CA-0082                                                       5


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. Martin, supra at ¶ 40, quoting Von Moltke v. Gillies, 332 U.S. 708,

723, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948); State v. Suber, 154 Ohio App.3d 681, 798

N.E.2d 684, 2003–Ohio–5210, ¶ 15. A trial court must make a defendant aware “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’.” State v. Montgomery,

10th Dist. No. 02AP–927, 2003–Ohio–2888, ¶ 14, quoting Faretta, 422 U.S. at 835, 95

S.Ct. at 2541.

       {¶9}   At the start of the second day of trial, the trial court, outside the presence of

the jury, stated it had been advised Appellant wanted a new attorney. The trial court

addressed Appellant, explaining Attorney Fry was appointed and Appellant could not fire

appointed counsel. The trial court added, as the trial had already started, it was too late

for Appellant to fire Attorney Fry and “Attorney Fry is representing you.” Tr. Vol. II at 187.

       {¶10} Appellant responded:



              * * * what I would like to say, you know, on the record is that, you

       know, Fry is a good lawyer. I’m just very well spoken, very well spoken.

       I’ve done my homework and research, and my attorney kind of stutters and

       fumbles with his words. I think since my freedom is on the line, I may be

       the best person to represent myself. I do know the law quite a bit. * * * That

       being said, I did write up a very detailed explanation, and my lawyer was

       going to approach and speak to you about it. And I have no idea what he
Richland County, Case No. 2019-CA-0082                                                      6


       says when he is up there with you. You know what I mean? I feel kind of

       left out. Tr. Vol. II at 188.



       {¶11} The trial court replied, “I think you do understand, I think, the law, but he

knows it better. He knows the language. He’s going to be able to discuss the elements

of the offense easier than you are. But I also think he can have you testify and the jury is

going to get to hear the information that you want them to know.” Tr. Vol. II at 189.

       {¶12} Appellant continued:



              I have no personal animosity with anyone. In fact, I’m a big supporter

       of justice. That being said, I do have – you know, you know, I’m a very

       powerful reader. I know I can write. I can read very powerfully. You know,

       this here is a joke. It’s a travesty. And it does go quite well with my defense.

       Everything that is being used against me will spoil my defense * * * You

       know, if my lawyer doesn’t want to represent me properly or he’s afraid or,

       you know, something like that, you know, this is my life. And I also have a

       thing on my list that if I – I want you to know that I feel I am being railroaded,

       and I will speak and I will not be stopped. I don’t want to make a mockery

       of the courtroom. Tr. Vol. II at 190-191.



       {¶13} When the trial court asked Appellant if he had any issues with Attorney Fry,

Appellant indicated he did not. Appellant simply expressed his opinion he could do a
Richland County, Case No. 2019-CA-0082                                                  7


better job.   After allowing Appellant to speak his mind, the trial court resumed the

proceedings.

       {¶14} Upon review of the record, including reading the transcript portions relative

hereto, we find Appellant did not waive his right to counsel or unequivocally invoke his

right to self-representation. Although Appellant certainly made statements to the effect

he would like to actively participate in his defense, he never unequivocally stated he

wished to waive his right to counsel. Accordingly, we find the trial court did not violate

Appellant’s Sixth Amendment right to waive counsel and represent himself.

       {¶15} Appellant’s sole assignment of error is overruled.

       {¶16} The judgment of the Richland County Court of Common Pleas is affirmed.



By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur
