[Cite as State v. Blackshear, 2019-Ohio-655.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY



State of Ohio/City of Toledo                             Court of Appeals No. L-18-1103

        Appellee                                         Trial Court No. TRC-17-18903
                                                                         CRB-17-10759
v.

Ishmial A. Blackshear                                    DECISION AND JUDGMENT

        Appellant                                        Decided: February 22, 2019

                                                  *****

        David Toska, Chief Prosecutor, and Henry Schaefer,
        Assistant Prosecutor, for appellee.

        Tyler Naud Jechrua, for appellant.

                                                  *****

        MAYLE, P.J.

                                                Introduction

        {¶ 1} Defendant-appellant, Ishmael Blackshear Bey, appeals his conviction in the

Toledo Municipal Court following a bench trial in which the trial court found him guilty
of operating a vehicle while impaired. Bey represented himself at trial. On appeal, Bey

contends that the trial court failed to advise him adequately of the disadvantages of

proceeding pro se at trial, and therefore, that his waiver of counsel was invalid. Bey also

challenges the sufficiency and manifest weight of the evidence against him. After a

thorough review of the record, we find that the trial court failed to make a sufficient

inquiry to determine whether Bey knowingly, intelligently, and voluntarily relinquished

his right to counsel. Accordingly, the judgment of the trial court is reversed, and the case

is remanded for a new trial.

                               Facts and Procedural History

       {¶ 2} On August 27, 2017, Toledo Police Officers George Stauch and Richard

Miller were traveling westward on Dorr Street when they received a 911 dispatch of a

possibly impaired driver. The call had originated with Brandon Rizzo, a civilian driver,

who called 911 after witnessing a truck driving “recklessly” near the intersection of Dorr

Street and Secor Road. Rizzo told the 911 operator that the driver was “swerving all over

the place, hitting the curbs. He almost took out like four girls crossing the street.”

       {¶ 3} The two officers located a truck that matched the description that had been

provided by the 911 dispatcher. They began following it, and pulled the truck over after

they observed what they believed to be a lane violation while turning.

       {¶ 4} Officer Miller approached the driver’s side window and spoke with Bey,

who was driving. Officer Stauch approached the passenger-side window, which was

occupied by an unidentified male. On the “dashcam” video of the stop, Officer Miller



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can be heard asking for Bey’s driver’s license and then saying “I hope we’re not drinking

that beer.” After Bey provided his driver’s license, the police officers returned to their

squad car to call in the license information.

       {¶ 5} While communicating with police headquarters, Trooper Kevin Doerle, with

the Ohio State Highway Patrol, pulled behind the Toledo Police patrol car. Trooper

Doerle was on a general patrol in Lucas County, and the police officers asked if Trooper

Doerle wanted to take the lead in the investigation. The trooper agreed, and he and

Officer Miller then switched the order of their respective vehicles, such that Trooper

Doerle moved directly behind Bey’s truck, and Office Miller pulled behind the trooper.

Trooper Doerle’s vehicle was also equipped with a dashcam.

       {¶ 6} Trooper Doerle, who has received specific training on conducting field

sobriety tests and identifying indicators of impairment, noticed the strong odor of alcohol

coming from the vehicle and observed a blue can in the center console cup holder.

Doerle asked Bey how much alcohol he had consumed. Bey said “some.” Trooper

Doerle requested, and then ordered, Bey to exit the vehicle multiple times. He eventually

exited the vehicle, but refused to allow any type of field sobriety test.

       {¶ 7} While talking to Bey away from the vehicle, Doerle “still detected the strong

odor of an alcoholic beverage.” He also noticed that Bey was “swaying slightly;” his

eyes appeared “bloodshot and glassy;” and his voice was “thick-tongued.” Trooper

Doerle placed Bey under arrest for operating a vehicle under the influence of alcohol, and

recited “BMV Form 2255,” which explains the consequences of refusing to undergo field



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sobriety testing, including mandatory license suspension. Later, at the jail, Trooper

Doerle offered to perform a breathalyzer on Bey, but Bey again refused to be tested.

       {¶ 8} Bey was charged with violating R.C. 4511.19(A)(1)(a), “Driving while

under the influence of alcohol, drugs;” a misdemeanor of the first degree and R.C.

4511.36, “Rules for turns at Intersections,” a minor misdemeanor. Bey was separately

charged with possessing “less than” 100 grams of marijuana, in violation of R.C.

2925.11(C)(3)(a), a minor misdemeanor. The possession charge was subsequently

consolidated with the traffic citations.

       {¶ 9} On August 28, 2017, at the initial hearing, Bey stated that he did not intend

to hire his own attorney. On September 7, 2017, during a pretrial conference, he told the

trial court that it was “possible” that he would represent himself at trial.

       {¶ 10} On October 16, 2017, the parties appeared for a pretrial conference. Bey

indicated that he intended to represent himself. The court stated, “you are entitled to

have an attorney throughout this process, and if you cannot afford one and if you

financially qualify, the Court would appoint a public defender to represent you. * * *

[Y]ou can hire your own attorney, and I would suggest that you do so [because] it does

not appear that you have a particularly good grasp of the legal system.” The court also

mentioned that he may wish to have an attorney review the evidence that Bey had just

received from the prosecutor that morning. Bey stated, “I wouldn’t know till [sic] I look

at [the evidence],” and requested a day to consider the issue. The court granted Bey a




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two-day continuance, and stated “take a look at it, and if you want to consider appointed

attorney, I can look at it.”

       {¶ 11} On October 18, 2017, Bey told the court that he decided that he would not

be hiring an attorney, and he informed the court that he had filed several motions. He

filed a motion to suppress, arguing that there was no probable cause for the initial stop

and that there was no reasonable suspicion to order him out of his vehicle. He also filed a

motion relating to certain discovery that he had not yet received from the state.

       {¶ 12} Regarding Bey’s intention to represent himself, the court stated “I think I

mentioned this to you last time. You have a right to an attorney throughout this process.

If you cannot afford one and you financially qualify, the Court will appoint one for you.

You also have the right to hire your own attorney, but you also have the Constitutional

right to represent yourself. Is it your intention to represent yourself throughout this

criminal matter?” Bey responded “That is.”

       {¶ 13} The parties then appeared for a January 3, 2018 pretrial hearing, at which

time the court denied Bey’s motion to suppress and then set a trial date. The court said to

Bey, “[a]gain, I would suggest [that], although you * * * represented yourself well at the

Suppression Hearing * * * jury trials are different. I would again encourage you to hire

an attorney, though you are not required to do so. Any questions?” Bey had no

questions, and the subject of his self-representation was not raised again.

       {¶ 14} A bench trial was held on March 13, 2018, and Bey represented himself

throughout the proceeding. The court took the matter under advisement and delivered its



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verdict on April 2, 2018. It found Bey not guilty as to the drug possession and turning

violation offenses. It found Bey guilty as to the OVI charge. The court sentenced him to

serve 90 days in jail, with 87 of the days suspended. In lieu of jail, the court ordered that

Bey participate in a three-day driver intervention program. It also imposed a $375 fine,

six months of inactive probation, and twelve months of a license suspension.

       {¶ 15} Bey appealed, and this court, acting sua sponte, appointed him appellate

counsel. Bey asserts two assignments of error for our review.

              1. The trial court erred when it convicted Mr. Bey because the

       evidence presented by the city both lacked the sufficiency to support the

       conviction and the conviction was against the manifest weight of the

       evidence presented.

              2. The trial court erred when Mr. Bey was never properly informed

       of his right to counsel, nor was there an acknowledgment by Mr. Bey on the

       record.

                                 Law and Analysis

       {¶ 16} We begin with Bey’s second assignment of error in which he claims that

the trial court did not explain the consequences of his decision to represent himself and

that his lack of understanding of those consequences led him to proceed pro se and

ultimately to his conviction.   Whether a defendant knowingly, intelligently, and

voluntarily waived the right to counsel is an issue that we review de novo. State v.

Griffin, 10th Dist. Franklin No 10AP-902, 2011-Ohio-4250.



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       {¶ 17} The prosecution of any offense that includes imprisonment as a sentence―

whether such offense is classified as petty, misdemeanor, or felony―triggers a

defendant’s right to counsel. State v. Wellman, 37 Ohio St.2d 162, 309 N.E.2d 915

(1974) paragraph one of the syllabus, citing Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct.

2006, 32 L.Ed. 2d 530 (1972).

       {¶ 18} A defendant’s right to counsel during critical stages of the prosecution is

guaranteed by the Sixth Amendment of the United States Constitution, made applicable

to the states through the Fourteenth Amendment, and by Article I, Section 10, of the Ohio

Constitution. Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799

(1963); State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227. The right

to counsel, however, “implicitly embodies a ‘correlative right to dispense with a lawyer's

help.’” Martin at ¶ 23, quoting Adams v. United States ex rel. McCann, 317 U.S. 269,

279, 63 S.Ct. 236, 87 L.Ed. 268 (1942). The right to represent oneself “is thwarted when

counsel is forced upon an unwilling defendant, who alone bears the risks of a potential

conviction.” State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶

26, citing Faretta v. California, 422 U.S. 806, 819-820, 95 S.Ct. 2525, 45 L.Ed.2d 562

(1975). Nonetheless, if the accused “is not represented by counsel and has not

competently and intelligently waived his constitutional right, the Sixth Amendment

stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life

or his liberty.” State v. Gibson, 45 Ohio St.2d 366, 376, 345 N.E.2d 399 (1976), quoting

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).



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       {¶ 19} For that reason, there is a presumption against finding that a defendant has

waived his or her right to counsel, and a trial court has a “serious and weighty

responsibility” to determine whether the accused is knowingly, intelligently, and

voluntarily waiving the constitutional right to counsel. Gibson at 376, quoting Von

Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309 (1948). “To discharge

this duty properly in light of the strong presumption against waiver of the constitutional

right to counsel, a judge must investigate as long and as thoroughly as the circumstances

of the case before him demand. The fact that an accused may tell him that he is informed

of his right to counsel and desires to waive this right does not automatically end the

judge’s responsibility.” Id. “Although defendant[s] need not [themselves] have the skill

and experience of a lawyer in order competently and intelligently to choose self-

representation, [they] should be made aware of the dangers and disadvantages of self-

representation, so that the record will establish that [they] know what [they are] doing

and [their] choice is made with eyes open.” (Quotation omitted.) Faretta at 835.

       {¶ 20} For the waiver of counsel to be valid, a trial court must engage in a

colloquy with the defendant to ensure that he or she “has been ‘made aware of the

dangers and disadvantages of self-representation.’” Obermiller at ¶ 43, quoting Faretta at

835. “The specific nature of the colloquy varies from case to case, depending on the

nature and circumstances of the charged offenses and potential penalties the defendant

faces.” Id.; see also State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d

1144, ¶ 101, quoting Iowa v. Tovar , 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d. 209



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(2004) (Noting that the United States Supreme Court “ha[s] not * * * prescribed any

formula or script to be read to a defendant who states that he elects to proceed without

counsel.”).

       {¶ 21} In Gibson, the Supreme Court of Ohio held that a valid waiver of one’s

right to counsel must be made with apprehension to “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.” Gibson at 377, quoting

Von Moltke at 723. Other Ohio courts have noted that a court “should” also explain that

the defendant “will be required to follow the same rules of procedure and evidence which

normally govern the conduct of a trial.” State v. Furr, 1st Hamilton Dist. No. C-170046,

2018-Ohio-2205, ¶ 9, quoting State v. Doane, 69 Ohio App.3d 638, 646-647, 591 N.E.2d

737 (11th Dist.1990). But, again, “[t]he information a defendant must possess in order to

make an intelligent election* * *will depend on a range of case-specific factors, including

the defendant’s education or sophistication, the complex or easily grasped nature of the

charge, and the stage of the proceeding.”) Johnson at ¶ 101, quoting Tovar at 88; see

also Obermiller at ¶ 43 (“The specific nature of the colloquy varies from case to case.”).

       {¶ 22} In addition, Crim.R. 44 governs the procedure through which a defendant

may waive his right to counsel. The rule provides, in relevant part,

              (A) Counsel in serious offenses. Where a defendant charged with a

       serious offense is unable to obtain counsel, counsel shall be assigned to



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      represent him at every stage of the proceedings from his initial appearance

      before a court through appeal as of right, unless the defendant, after being

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

      voluntarily waives his right to counsel.

             (B) Counsel in petty offenses. Where a defendant charged with a

      petty offense is unable to obtain counsel, the court may assign counsel to

      represent him. When a defendant charged with a petty offense is unable to

      obtain counsel, no sentence of confinement may be imposed upon him,

      unless after being fully advised by the court, he knowingly, intelligently,

      and voluntarily waives assignment of counsel.

             (C) Waiver of counsel. Waiver of counsel shall be in open court and

      the advice and waiver shall be recorded as provided in Rule 22 [Recording

      of Proceedings]. In addition, in serious offense cases the waiver shall be in

      writing.

      {¶ 23} Pursuant to Crim.R. 44 and 22, the waiver of counsel must take place in

open court, must be recorded, and in cases of serious offenses, the waiver must be in

writing. A serious offense “means any felony, and any misdemeanor for which the

penalty prescribed by law includes confinement for more than six months.” Crim.R.

2(C). A petty offense is defined as “a misdemeanor other than a serious offense.”

Crim.R. 2(D).




10.
       {¶ 24} Here, Bey was charged violating R.C. 4511.19(A)(1)(a), which provides

that “[n]o person shall operate any vehicle * * * within this state, if, at the time of the

operation, any of the following apply: [t]he person is under the influence of alcohol, a

drug of abuse, or a combination of them.” A violation of Section (A)(1)(a) is a

misdemeanor of the first degree. As a first time OVI offender, Bey was subject to the

penalty of not more than six months in prison. R.C. 4511.19(G)(1)(a). Therefore, Bey’s

OVI charge qualifies as a misdemeanor, petty offense and is governed by Crim.R. 44(B)

and (C). Village of Highland Hills v. Nicholson, 8th Dist. Cuyahoga No. 100577, 2014-

Ohio-4671, ¶ 16; see also State v. Victor, 2015-Ohio-5520, 11th Dist. Geauga Nos. 2014-

G-3220 and 2014-G-3241, ¶ 31. And, because the charge was not a “serious offense,”

Bey’s waiver of the right to counsel was not required to be in writing. Id.

       {¶ 25} Nonetheless, after reviewing the entire record, we must conclude that Bey

did not knowingly, intelligently, and voluntarily waive his right to counsel. Although

Bey clearly and unequivocally asserted his right to represent himself at trial, the trial

court had a corresponding “serious and weighty responsibility” to ensure that Bey was

making that choice “with eyes open.” Gibson, 45 Ohio St. at 377, 345 N.E.2d 399;

Faretta at 835. As discussed above, the law is clear: a pro-se defendant proceeds to trial

“with eyes open” only after he or she is “made aware of the dangers and disadvantages of

self-representation.” Obermiller at ¶43, quoting Faretta at 835. Here, that did not occur.

Although the trial court repeatedly informed Bey of his constitutional right to counsel and

explicitly “encouraged” him to proceed to trial with the assistance of an attorney, the



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court failed to engage in any colloquy to ensure that Bey understood the dangers and

disadvantages of self-representation. For that reason, we must follow the strong

presumption against waiver and conclude that Bey did not knowingly, intelligently, and

voluntarily relinquish his right to counsel. See City of Toledo v. Garmon, 6th Dist. Lucas

No. L-12-1206, 2013-Ohio-4413, ¶24 (Finding that the defendant did not waive her right

to counsel because the court “failed to ensure that [she] understood the nature of the

charges against her or the possible defense to those charges” and the court “failed to

advise [the defendant] of the dangers of self-representation.”).

       {¶ 26} We therefore sustain Bey’s second assignment of error, vacate his OVI

conviction, and remand for a new trial where the court must either appoint counsel to

Bey, assuming he qualifies, or have the proper colloquy with him to ensure that he is

voluntarily, knowingly, and intelligently waiving his right to counsel. Vill. of Highland

Hills at ¶ 18. Of course, Bey may not be retried for the offenses for which he was already

acquitted: marijuana possession and turning violation. Id. Finally, in light of our

decision with regard to Bey’s second assignment of error, we find that his first

assignment of error is moot, and we decline to address it. App.R. 12(A)(1)(c).

       {¶ 27} Pursuant to App.R. 24, the city is ordered to pay the costs of this appeal.




                                                                       Judgment reversed.




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                                                                      L-18-1103
                                                                      State of Ohio/City of
                                                                      Toledo v. Bey



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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