         [Cite as State v. Lowe, 2016-Ohio-3423.]

                               IN THE COURT OF APPEALS
                      FIRST APPELLATE DISTRICT OF OHIO
                                HAMILTON COUNTY, OHIO




STATE OF OHIO,                                      :   APPEAL NO. C-150101
                                                        TRIAL NO. B-1404135
        Plaintiff-Appellee,                         :

  vs.                                               :
                                                             O P I N I O N.
HUBERT LOWE,                                        :

    Defendant-Appellant.                            :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: June 15, 2016

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS

STAUTBERG, Judge.

       {¶1}   Defendant-appellant Hubert Lowe was convicted of felonious assault

in violation of R.C. 2903.11(A)(1) and sentenced to two years’ imprisonment. He has

timely appealed his conviction and asserted three assignments of error. After a

review of the record, we reverse the trial court’s judgment of conviction and remand

the cause to the trial court for further proceedings in accordance with this opinion.

       {¶2}   Lowe and Shannon Wagner lived on different floors in the same

apartment building on Sunset Avenue. On June 27, 2014, the police responded to a

call from Wagner regarding a dispute between Lowe and her at the apartment

building. Wagner and Lowe provided conflicting accounts of the incident. Wagner

alleged that Lowe, without provocation, had picked her up and had “slammed” her in

the hallway as she passed by his apartment. Lowe, however, contended that Wagner

was an unwelcome interloper who he had to physically remove from his apartment

after asking her several times to leave. Regardless of whose account of the incident is

accurate, the fact is that Wagner sustained a broken arm that required surgery. A

grand jury indicted Lowe for felonious assault, a second-degree felony.

       {¶3}   Lowe was appointed trial counsel who fully participated in the pretrial

preparation and proceedings. Prior to trial, Lowe filed several pro se motions: (1)

motion to proceed as co-counsel, (2) motion for a bill of particulars, (3) demand for

discovery, and (4) motion to suppress evidence.

       {¶4}   On the morning of trial, the court addressed Lowe’s pro se motions.

Lowe’s defense counsel had only recently learned of Lowe’s motion to suppress, and

did not argue the motion. The trial court then engaged Lowe in a lengthy discussion

about his motion to suppress, as well as several issues regarding witnesses, medical




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                      OHIO FIRST DISTRICT COURT OF APPEALS

records, and Lowe’s statements to police. After discussing those issues, the trial

court denied Lowe’s motion to suppress.

       {¶5}   The trial court then addressed Lowe’s motion to proceed as co-counsel.

The court informed Lowe that he could not act as co-counsel, and that he could

either proceed with an attorney or proceed pro se. The trial court stated, “Do you

want to be your own lawyer or do you want him to represent you? * * * You’re under

the same rules and structure that the Government is.” The trial court explained to

Lowe that he would be at a disadvantage because he was not familiar with the proper

technique to question a witness. Furthermore, the trial court informed Lowe that it

would not assist him or provide information about why a question was improper.

The trial court asked Lowe whether he wanted to speak to his lawyer, and Lowe

responded affirmatively.

       {¶6}   The court took a brief recess while Lowe conferred with his counsel.

After the recess, Lowe discussed the matter on the record with the trial court, and

took various positions with respect to proceeding with his current counsel—opting

first for the appointment of new counsel, and then agreeing to continue with his

current appointed counsel for the “time being.” The trial court recessed again so

defense counsel could discuss the matter further with Lowe. After this recess and

discussion, Lowe informed the court that he wanted to proceed pro se.

Subsequently, the trial court permitted Lowe’s defense counsel to withdraw.

       {¶7}   Lowe chose to waive his right to a jury trial and, after an inquiry by the

court, signed a written waiver of his right to a jury trial. Lowe was not presented

with nor did he sign a written waiver of his right to counsel.




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                       OHIO FIRST DISTRICT COURT OF APPEALS

         {¶8}   At trial, the state put on seven witnesses, including Wagner and police

officers assigned to the incident. Lowe cross-examined the witnesses, and testified

on his own behalf.

         {¶9}   After closing arguments, the trial court took the matter under

submission, and subsequently found Lowe guilty of felonious assault. The trial court

later sentenced him to two years’ imprisonment. Lowe timely appealed.

         {¶10} In his first assignment of error, Lowe contends that trial court erred

when it permitted him to represent himself without determining whether his waiver

of counsel was made knowingly, intelligently, and voluntarily. We agree.

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

Constitution guarantee a criminal defendant the right to counsel.           Faretta v.

California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A defendant

also has the constitutional right to waive the right to counsel and represent himself at

trial.   Id. at 821-836.    However, “[c]ourts are to indulge in every reasonable

presumption against the waiver of a fundamental constitutional right, including the

right to be represented by counsel.” (Citations omitted.) State v. Vordenberge, 148

Ohio App.3d 488, 491, 774 N.E.2d 278 (1st Dist.2002), quoting State v. Dyer, 117

Ohio App.3d 92, 95, 689 N.E.2d 1034 (2d Dist.1996).

         {¶12} Crim.R. 44(A) provides that in order for the defendant to waive the

right to counsel, the waiver must be knowing, voluntary, and intelligent. This court

has required the trial court undertake a two-part inquiry when determining whether

a defendant has knowingly, intelligently, and voluntarily waived his right to counsel:

“(1) whether the defendant is competent to waive the right to counsel if it has reason

to doubt the defendant’s competency, and (2) whether the waiver is knowing and




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                      OHIO FIRST DISTRICT COURT OF APPEALS

voluntary.” Vordenberge at 492; see State v. Watson, 132 Ohio App.3d 57, 63, 724

N.E.2d 469 (8th Dist.1998).

       {¶13} In State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d

227, paragraph two of the syllabus, the Ohio Supreme Court held:

       In the case of a “serious offense” * * *, when 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.

       {¶14} There must be a candid and thorough discussion “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.” Martin at ¶ 40, quoting State v. Gibson, 45 Ohio St.2d 366, 377, 345 N.E.2d

399 (1976). A judge must investigate as long and as thoroughly as the circumstances

of the case demand in light of the strong presumption against the waiver of the right

to counsel. Gibson at 377. Waiver of counsel has been described as intelligent when

the defendant “knows what he is doing and his choice is made with eyes open.” Iowa

v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), quoting Adams v.

United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942).

       {¶15} The state contends that Lowe’s waiver was knowing, intelligent, and

voluntary. It points to State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858

N.E.2d 1144, for the proposition that the trial court can presume that defense counsel

had discussed all relevant facts of the case with Lowe prior to his waiver of counsel.

The case before us is factually distinguishable from Johnson.




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                         OHIO FIRST DISTRICT COURT OF APPEALS

         {¶16} Here, the record does not support the contention that Lowe knowingly,

intelligently, and voluntarily waived his right to counsel. Although the trial court

granted sufficient time to accommodate Lowe’s vacillating positions with respect to

counsel, there is not enough in the record to demonstrate that Lowe knowingly,

intelligently, and voluntarily waived his Sixth Amendment right to counsel. We do

not presume a waiver of the right to counsel from a silent record. Vordenberge, 148

Ohio App.3d at 491, 774 N.E.2d 278. Here, the trial court did explain the challenges

of self-representation against an experienced prosecutor, and it pointed out that

Lowe was facing “serious charges.” However, the trial court did not go further to

explain the statutory offense with which Lowe was charged, the range of possible

punishments, possible mitigating factors, the defenses to the charge, or other facts

pertinent to the case.

         {¶17} Based on the record before us, we sustain Lowe’s first assignment of

error.

         {¶18} In Lowe’s second assignment of error, he argues that the trial court

erred by overruling his pro se motion to suppress evidence without providing him an

evidentiary hearing and by permitting the state’s inaccurate bill of particulars, and in

his third assignment of error, he challenges his conviction based on the weight and

sufficiency of the evidence. Because we have sustained Lowe’s first assignment of

error, his second and third assignments of error are moot.

         {¶19} The judgment of conviction is reversed and this cause is remanded to

the trial court for further proceedings consistent with law and this opinion.

                                               Judgment reversed and cause remanded.



DEWINE, P.J., and MOCK, J., concur.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



Please note:

       This court has recorded its own entry this date.




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