[Cite as State v. Bristow, 2020-Ohio-3999.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  JUDGES:
                                                Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                     Hon. Patricia A. Delaney, J.
                                                Hon. Earle E. Wise, Jr., J.
 -vs-
                                                Case No. 2020 CA 0006
 LONNY BRISTOW

        Defendant-Appellant                     O P I N IO N




 CHARACTER OF PROCEEDINGS:                      Appeal from the Mansfield Municipal
                                                Court, Case No. 2019CRB05423


 JUDGMENT:                                      Reversed and Remanded

 DATE OF JUDGMENT ENTRY:                        August 4, 2020


 APPEARANCES:


 For Plaintiff-Appellee                         For Defendant-Appellant

 JOHN D. STUDENMUND, ESQ.                       LONNY BRISTOW
 Renwick, Welsh & Burton, LLC                   P.O. Box 557
 9 North Mulberry Street                        Smithville, Ohio 44667
 Mansfield, Ohio 44902
Richland County, Case No. 2020 CA 0006                                                    2


Hoffman, P.J.
       {¶1}   Appellant Lonny Lee Bristow appeals the judgment entered by the

Mansfield Municipal Court convicting him of trespassing (R.C. 2911.21) following his plea

of no contest and sentencing him to 30 days incarceration, with all days suspended upon

condition of no criminal violations for two years (with the exception of minor misdemeanor

traffic offenses), and fining him $250. Appellee is the state of Ohio.

                           STATEMENT OF THE CASE AND FACTS

       {¶2}   On May 30, 2019, Appellant was charged with trespassing and criminal

mischief in the Ontario Mayor’s Court. He entered pleas of not guilty to the charges and

filed a jury demand. The case was transferred to the Mansfield Municipal Court.

       {¶3}   According to the bill of particulars, on May 25, 2019, Appellant drove his car

on the yard of a residence in Ontario, Ohio. He walked on to the front porch and began

pounding on the door. Appellant’s cousin resided in the home. Appellant’s cousin had

texted him at least twice in April and May of 2019, asking Appellant to leave her alone.

Ontario police officers told Appellant on both May 23 and May 24, 2019, to not contact

her.

       {¶4}   After the case was transferred to Mansfield Municipal Court, Appellant

entered a plea of no contest to the charge of trespassing. A nolle prosequi was entered

on the charge of criminal mischief. Appellant was convicted as charged and sentenced

to 30 days incarceration, with all days suspended upon condition of no criminal violations

for two years (with the exception of minor misdemeanor traffic offenses), and fined $250.

       {¶5}   It is from the January 8, 2020 judgment of conviction and sentence

Appellant prosecutes this appeal, assigning as error:
Richland County, Case No. 2020 CA 0006                                                  3


             I.   THE   TRIAL    COURT      COMMITTED        REVERSIBLE       AND

      PREJUDICIAL ERROR AND LACKED JURISDICTION IN ORDERING

      THIS APPELLANT TO NOTIFY THE TRIAL COURT IF APPELLANT

      CHANGED HIS NAME WITHIN TEN DAYS AFTER DOING SO.

             II. APPELLANT’S REPRESENTATION OF HIMSELF VIOLATED

      HIS STATE AND FEDERALLY PROTECTED CONSTITUTIONAL RIGHT

      TO COUNSEL BECAUSE APPELLANT NEVER SIGNED A WAIVER OF

      COUNSEL, NEVER HAD A WAIVER OF COUNSEL HEARING, AND

      THERE       WAS     NO     COLLOQUY        TO       INSURE   APPELLANT’S

      REPRESENTATION OF HIMSELF WAS KNOWINGLY, INTELLIGENTLY

      AND VOLUNTARY.

             III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

      DENYING APPELLANT’S MOTION TO DISMISS THE TRESPASSING

      CHARGE AS FACIALLY INVALID UNDER OHIO LAW.

             IV. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

      DENYING APPELLANT’S MOTION TO DISMISS THE TRESPASSING

      CHARGE AS NOT LEGALLY SUSTAINABLE UNDER OHIO LAW.



                                               II.

      {¶6}   We address Appellant’s second assignment of error first, as it is dispositive

of the appeal. Appellant argues the record does not demonstrate he made a knowing,

intelligent, and voluntary waiver of counsel. We agree.
Richland County, Case No. 2020 CA 0006                                                      4


       {¶7}   The Sixth Amendment to the United States Constitution and Section 10,

Article I of the Ohio Constitution provide a criminal defendant has a right to counsel.

However, a criminal defendant also has the constitutional right to waive counsel and to

represent himself or herself at trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45

L.Ed.2d 562 (1975). In such a situation, “the Constitution * * * require[s] that any waiver

of the right to counsel be knowing, voluntary, and intelligent * * *.” Iowa v. Tovar, 541 U.S.

77, 87-88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), Crim.R. 44(A). “In order to establish

an effective waiver of [the] right to counsel, the trial court must make sufficient inquiry to

determine whether [the] defendant fully understands and intelligently relinquishes that

right.” State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph two of the

syllabus. The defendant must make an intelligent and voluntary waiver with the

knowledge he will have to represent himself, and the dangers inherent in self-

representation. State v. Ebersole, 107 Ohio App.3d 288, 293, 668 N.E.2d 934 (3rd Dist.

Hancock 1995), citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562

(1975).

       {¶8}   Because courts indulge every reasonable presumption against a waiver of

fundamental constitutional rights, waiver of counsel must affirmatively appear on the

record. City of Garfield Hts. v. Brewer, 17 Ohio App.3d 216, 217, 479 N.E.2d 309, 311–

12 (8th Dist. Cuyahoga 1984). A knowing and intelligent waiver will not be presumed from

a silent record. Id., citing Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8

L.Ed.2d 70 (1962).

       {¶9}   This Court has previously discussed what must appear in the record to

demonstrate a valid waiver of counsel:
Richland County, Case No. 2020 CA 0006                                                       5


                In Gibson, supra, the Ohio Supreme Court applied the test set forth

         in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948),

         which established the requirements for a sufficient pretrial inquiry by the trial

         court into a waiver of counsel:

                To be valid such 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. A judge can make certain that an

         accused's professed waiver of counsel is understandingly and wisely made

         only from a penetrating and comprehensive examination of all the

         circumstances under which such a plea is tendered.

                State v. Gibson, 45 Ohio St.2d 366, 377, 345 N.E.2d 399 (1976).



         {¶10} State v. Newman, 5th Dist. Stark No. 2017CA00219, 2018-Ohio-3253, ¶¶

17-18.

         {¶11} On November 9, 2019, Appellant appeared before the court for a hearing

on various motions he had filed in this case, as well as to enter a plea on an unrelated

case. At the outset of the hearing, the trial court stated:



                THE COURT:          Mr. Bristow, on that particular matter you’re

         representing yourself in this matter; is that correct?

                MR. BRISTOW: Yes, Your Honor, it is.
Richland County, Case No. 2020 CA 0006                                                  6


      {¶12} Tr. (11/9/19) 3.

      {¶13} On January 8, 2020, Appellant appeared before the court for a change of

plea hearing. Appellant entered a plea of no contest, after which the court made a finding

of guilty and pronounced sentence from the bench. Subsequent to sentencing, the

following colloquy occurred:



             MR. STUDENMUND: Your Honor, sorry to interrupt. I think it’s

      probably prudent to have the Record reflect that Mr. Bristow is representing

      himself and he’s waived his right to counsel throughout the entire

      proceeding also.

             MR. BRISTOW: Yes, that is correct, Your Honor.

             THE COURT: Yeah. And you understand you waive your right to

      have as, as was previously done, waves the right to have Court appointed

      counsel or the right to choose your own attorney should you desire to hire

      one?

             MR. BRISTOW: Yes, Your Honor.

             THE COURT: And you waive that?

             MR. BRISTOW: Yes.



      {¶14} Tr. (1/8/20) 27.

      {¶15} We find this colloquy does not sufficiently demonstrate Appellant’s decision

to waive counsel was made with “apprehension of the nature of the charges, the statutory

offenses included within them, the range of allowable punishments thereunder, possible
Richland County, Case No. 2020 CA 0006                                                    7


defenses to the charges and circumstances in mitigation thereof, and all other facts

essential to a broad understanding of the whole matter” as required by the United States

Supreme Court in Von Moltke, supra, and the Ohio Supreme Court in Gibson, supra.

Further, this limited colloquy occurred subsequent to Appellant’s change in plea, the trial

court’s finding of guilt, and oral pronouncement of sentence.

       {¶16} The State relies on Appellant’s active engagement in plea negotiations on

the record in this case, which the State argues demonstrates Appellant possessed the

understanding required for his waiver of counsel to be knowing and intelligent. In State

v. Ngaka, 5th Dist. Delaware No. 19 CAC 09051, 2020-Ohio-3106, the State relied heavily

on Ms. Ngaka’s employment as a paralegal at a law firm to demonstrate the validity of

her waiver of counsel. We held the nature of her employment did not relieve the trial court

of its constitutional duty to undertake a “penetrating and comprehensive examination of

all the circumstances” under which the decision to waive counsel was made. Id. at ¶16.

Likewise, we find Appellant’s ability to engage in plea negotiations on his own behalf did

not relieve the trial court of its duty to engage Appellant in the constitutionally-mandated

examination to ensure his waiver of counsel was knowing, intelligent, and voluntary.

       {¶17} The second assignment of error is sustained.

       {¶18} Appellant’s remaining assignments of error are rendered premature by our

decision on his second assignment of error.
Richland County, Case No. 2020 CA 0006                                                8


      {¶19} The judgment of the Mansfield Municipal Court is reversed and this case is

remanded for further proceedings according to law and consistent with this opinion.




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