[Cite as State v. Mootispaw, 2010-Ohio-4772.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                     HIGHLAND COUNTY

State of Ohio,                                  :        Case No. 09CA33

        Plaintiff-Appellee,                     :

        v.                                      :        DECISION AND
                                                         JUDGMENT ENTRY
Dennis Mootispaw,                               :

     Defendant-Appellant.       :     Released 9/24/10
______________________________________________________________________
                            APPEARANCES:

Carol Ann Curren, Greenfield, Ohio, for appellant.

James B. Grandey, Highland County Prosecutor, and Anneka P. Collins, Highland
County Assistant Prosecutor, Hillsboro, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}    Dennis Mootispaw appeals the order of the court that found him guilty of

supervision violations, revoked his judicial release, and sent him back to prison to serve

the remainder of his original prison term.

        {¶2}    After Mootispaw served a year of a three year sentence for felonious

assault, the court granted his petition for judicial release. Several months later the Adult

Parole Authority alleged that he violated three terms of judicial release. After

Mootispaw appeared pro se at a hearing on the supervision violations and admitted to

two of them, the court reinstated his prison sentence.

        {¶3}    Mootispaw contends that he did not knowingly, intelligently, and voluntarily

waive his right to counsel at the revocation hearing. Because of the strong presumption

against the waiver of the constitutional right to counsel, we agree. The court engaged

Mootispaw in a brief waiver colloquy in which it did not warn him of the dangers inherent
Highland App. No. 09CA33                                                                   2


in self representation. And, when asked if he wanted counsel, Mootispaw responded

that he spoke to a probation officer and believed he was “ready to proceed” pro se.

This comment indicated that Mootispaw’s decision to waive counsel may have been

based on a misconception arising from a conversation with an adversarial party. Thus,

further inquiries were necessary before the court could determine that Mootispaw was

waiving the benefit of counsel with “eyes open.” Consequently, we find merit in

Mootispaw’s appeal.

                            I. The Hearing on Supervision Violations

       {¶4}   Mootispaw pleaded guilty to felonious assault and received a three year

prison sentence. Roughly a year later the court granted him judicial release under R.C.

2929.20. As a condition of early release, the court imposed community control

sanctions for five years and ordered the Adult Parole Authority, acting as the Probation

Department, to supervise Mootispaw.

       {¶5}   Several months after his release, Sheri Barton, a Probation Officer with

the Adult Parole Authority, filed a notice of supervision violations. In it, she alleged

three violations: (1) he was convicted of disorderly conduct in Fayette County; (2) he

possessed ammunition and a magazine for a handgun; and (3) he consumed an

alcoholic beverage.

       {¶6}   The next day Mootispaw, Barton, and a Highland County Prosecutor

appeared at a hearing on the alleged violations. The court informed Mootispaw of the

nature of the alleged supervision violations. The court also told Mootispaw that he

could be sent back to prison to serve the remainder of his prison sentence if the

violations were found to be true. The court then asked Mootispaw if he wanted an
Highland App. No. 09CA33                                                                   3


attorney or wished to waive counsel. Mootispaw twice declined counsel. He then

explained that he spoke with Barton about something and was “ready to proceed” pro

se. Although not a part of our record, Mootispaw alleges in his brief that Barton, prior to

the hearing, discussed the “STAR” treatment program with him and he believed he

would be sent there at the conclusion of the hearing. Subsequent discussions between

the court and the State that are part of the record appear to support Mootispaw’s

contentions.

       {¶7}    After waiving counsel, Mootispaw admitted to being convicted of disorderly

conduct and consuming alcohol. The fact that the State then dismissed the allegation

related to possessing ammunition, also lends support to the conclusion that there had

been negotiations between Mootispaw and the State.

       {¶8}    Before sentencing commenced, Mootispaw explained to the court that he

was an alcoholic and had liver disease, needed medical attention for the alcoholism,

and that prison was not helping him.

       {¶9}    During the sentencing, the State began by stating “[i]n consultation with

Ms. Barton of the Ohio Parole Authority, it has been offered to the Defendant the

recommendation to the Star Community Justice Center.” The Judge asked Barton for

more information about STAR and whether she believed it would benefit Mootispaw.

She briefly explained the nature of the program (a lock-down treatment facility). She

then said she was not sure STAR would accept Mootispaw in light of his medical

condition. She also stated that when she spoke to Mootispaw earlier, he was not “real

keen on going there.” When asked by the court whether she believed the program
Highland App. No. 09CA33                                                                    4


could benefit Mootispaw, she stated its success depended on whether he wanted to

change his life.

       {¶10} Mootispaw then revealed to the court that he suffered a myriad of health

issues, including degenerative spine diseases, hepatitis of the liver, multiple eye

diseases, and bone and muscular deficiencies.

       {¶11} The State responded by telling the court, in light of Mootispaw’s numerous

medical problems, it did not believe that he could “successfully complete the bootcamp

type of regime at the STAR program.” The court agreed. It revoked Mootispaw’s

judicial release and ordered him to serve the balance of his three year sentence in a

State correctional facility.

       {¶12} After the court revoked judicial release, Mootispaw stated: “I’d like to ask

for an Attorney, Your Honor.” The Court responded: “We’ll sure give you one for your

appellate process if that’s what you choose to do.” Mootispaw then filed this appeal.

                                     II. Assignments of Error

       {¶13} Mootispaw assigns three errors:

       {¶14} I.       THE DEFENDANT’S WAIVER OF COUNSEL WAS NOT DONE

KNOWINGLY OR VOLUNTARILY AND HE WAS DEPRIVED OF HIS RIGHTS IN

VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION, ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO

CONSTITUTION.

       {¶15} II.      THE TRIAL COURT ERRED TO THE DETRIMENT OF THE

DEFENDANT BY NOT INFORMING HIM OF THE POSSIBLE DANGERS OF SELF
Highland App. No. 09CA33                                                                     5


REPRESENTATION AND ASCERTAING [sic] THAT THE DEFENDANT’S WAIVER

WAS KNOWING AND VOLUNTARY.

       {¶16} III.    DEFENDANT DENNIS MOOTISPAW’S ADMISSION TO HIS

PROBATION VIOLATION WAS NOT KNOWING, INTELLIGENT, AND VOLUNTARY IN

VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION, ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO

CONSTITUTION.

                                      III. Waiver of Counsel

       {¶17} In his first assignment of error, Mootispaw argues that the court did not

adequately inform him of the seriousness of the charges he faced and that he waived

counsel under the mistaken belief that the hearing was “simply a formality to get him

into the STAR program.” In his second assignment of error, Mootispaw complains that

the court failed to inform him of the dangers of self-representation and the defenses

available to him before accepting his waiver. Both of these assignments of error involve

whether his waiver of counsel was “voluntary” so we address them together.

       {¶18} The Sixth Amendment to the United States Constitution as well as Section

10, Article I of the Ohio Constitution guarantee the right to assistance of counsel in all

criminal prosecutions that may result in a jail sentence. State v. Wellman (1974), 37

Ohio St.2d 162, 171, 309 N.E.2d 915, citing Argersinger v. Hamlin (1972), 407 U.S. 25,

92 S.Ct. 2006. In Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756, the United

States Supreme Court extended the right to counsel to probation violation proceedings

when required by due process. Additionally, Crim.R. 32.3(B), titled “Revocation of

community release,” states: “[t]he defendant shall have the right to be represented by
Highland App. No. 09CA33                                                                    6


retained counsel and shall be so advised. Where a defendant convicted of a serious

offense is unable to obtain counsel, counsel shall be assigned to represent the

defendant, unless the defendant after being fully advised of his or her right to assigned

counsel, knowingly, intelligently, and voluntarily waives the right to counsel.” Crim.R.

32.3(D) – “Waiver of counsel” – indicates waiver “shall be as prescribed in Crim.R.

44(C).” Because a defendant also has the right of self-representation, the defendant

may waive the right to counsel and elect to represent himself. See Faretta v. California

(1975), 422 U.S. 806, 819-820, 95 S.Ct. 2525; State v. Martin, 103 Ohio St.3d 385,

2004-Ohio-5471, 816 N.E.2d 227, at ¶¶ 23-24; State v. Gibson (1976), 45 Ohio St.2d

366, 345 N.E.2d 399, at paragraph one of the syllabus.

       {¶19} The Supreme Court of Ohio has stated: “in the case of a ‘serious offense’

as defined by Crim.R. 2(C), 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.” Martin at ¶39. Concerning what constitutes a

“sufficient inquiry,” the Court noted:

       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. 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.

       {¶20} Gibson at 377, quoting Von Moltke v. Gillies (1948), 332 U.S. 708, 723-

724, 68 S.Ct. 316; see, also, Martin at ¶40. Furthermore, in order for the defendant to
Highland App. No. 09CA33                                                                            7


“competently and intelligently * * * choose self-representation, he should be made

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.’”

Faretta, at 835, quoting Adams v. United States ex rel. McCann (1943), 317 U.S. 269,

279, 63 S.Ct. 236. Although the foregoing authority addresses the right to counsel at

trial, we believe it is also applicable to these proceedings.

       {¶21} There is no single test to determine if a defendant has knowingly,

intelligently, and voluntarily waived his right to counsel. State v. Bristow, Scioto App.

Nos. 07CA3186, 07CA3187, 2009-Ohio-523, at ¶17; State v. Mitchell, Washington App.

No. 07CA50, 2008-Ohio-2419, at ¶15; State v. Doyle, Pickaway App. No. 04CA23,

2005-Ohio-4072, at ¶10. Instead, appellate courts should independently examine the

record, i.e., conduct a de novo review, to determine whether the totality of

circumstances demonstrates a knowing, intelligent, and voluntary waiver of the right to

counsel. Wellston v. Horsley, Jackson App. No. 05CA18, 2006-Ohio-4386, at ¶10.1

       {¶22} Accordingly, we look to the relevant portions of the waiver colloquy, which

follows:

       {¶23} THE COURT: * * * So, you were released in May of this year on certain

terms and conditions, and Judge Luce [sic] in his order stated you’d be on Community

Control for five (5) years; and the Court reserved the right to re-impose the three-year

sentence, actually the two years, roughly two years that are still left on the three years,

if you violated any of his orders, the orders that he gave you that day and also the

orders that you’re under with the Adult Parole Authority.


1
 Wellston is mistakenly indexed in the Westlaw legal research system under Webcite No. 2006-Ohio-
4836. It is correctly indexed in LexisNexis.
Highland App. No. 09CA33                                                                    8


       {¶24} And then again yesterday, it was alleged in writing that you have violated

some of those court orders and supervision, uh, terms and conditions of supervision. In

particular, uh, that on October 9 of this year you were convicted of disorderly conduct in

Fayette County in the Washington Court House Municipal Court, so that would be a

violation, if true, a violation of another law.

       {¶25} * * *

       {¶26} And, also on September 23rd of this year you consumed alcohol, again

allegedly a violation of your supervision.

       {¶27} You could go back, if any of these violations are found to be true, you

could go back to prison for two (2) years, that would be up to me, to serve the balance

of your three-year term.

       {¶28} You have a right to have an Attorney appointed to represent you

throughout this process. You also have a right to hire your own, if you would like to do

that. So the first question I want to ask is if you have any questions of the Court as to

why you’re here today?

       {¶29} DEFENDANT MOOTISPAW: No sir, Your Honor.

       {¶30} THE COURT: Secondly, would you like to hire an Attorney to represent

you in this matter, and/or would you like the Court to appoint one to help you through

the case?

       {¶31} DEFENDANT MOOTISPAW: No sir, Your Honor.

       {¶32} THE COURT: You’re sure?

       {¶33} DEFENDANT MOOTISPAW: No, sir – Yes, Your Honor.
Highland App. No. 09CA33                                                                    9


        {¶34} THE COURT: Well, if you need to think about that, we’re going to give

you a minute to think about it.

        {¶35} DEFENDANT MOOTISPAW: I’ve spoke with Ms. Barton and I believe I’m

ready to proceed.

        {¶36} THE COURT: All right. Are you under any type of medication at this

time?

        {¶37} DEFENDANT MOOTISPAW: No, sir.

        {¶38} THE COURT: Are you under any type…Are you under the influence of

any drug or alcohol at this time?

        {¶39} DEFENDANT MOOTISPAW: No, sir.

        {¶40} THE COURT: And at this point, are you telling the Court that you’re

knowingly waiving the right to be given an Attorney free of charge at state expense?

        {¶41} DEFENDANT MOOTISPAW: Yes sir, Your Honor.

        {¶42} THE COURT: Mr. Jackson, if you’ll come forward? I have a form here sir

that I’m going to read to you and I want you to read it as well, it’s a written waiver of

counsel. I, Dennis Mootispaw, the Defendant herein, being now in open court, fully

understand that under the laws of the state I have a right to legal representation – and

that would be at no charge to you, at state expense – a court appointed attorney, and I

do hereby affirmatively waived my right to be represented by counsel in this proceeding.

That’s saying, by signing this document – if you choose to do so – that you are waiving

your right to be represented by either a court appointed attorney, or your right to ask for

time to go hire your own, is that clear?

        {¶43} DEFENDANT MOOTISPAW: Yes sir, Your Honor.
Highland App. No. 09CA33                                                                    10


       {¶44} THE COURT: All right. Do you want to sign the form at this time?

       {¶45} DEFENDANT MOOTISPAW: Yes sir, Your Honor.

       {¶46} * * * (Noise on tape heard of papers shuffling and writing occurring.)

       {¶47} THE COURT: Thank you. And again, Mr. Mootispaw, if you change your

mind throughout this process on appointed counsel, just let me know, all right?

       {¶48} DEFENDANT MOOTISPAW: Yes, sir.

       {¶49} Based upon our review of that dialogue and the strong presumption

against waiver, we conclude that the totality of the circumstances indicate that the court

did not obtain a knowing, intelligent, and voluntary waiver of Mootispaw’s right to

counsel. The court did inform Mootispaw of the nature of the supervision violations and

the possible penalties it could impose, i.e., his original prison term. And the court did

have Mootispaw sign a written waiver form. However, the court did not inform

Mootispaw of the dangers inherent in self-representation, the disadvantages to

representing one-self, or any possible defenses to the charges.

       {¶50} The failure of the court to explain the dangers inherent in self-

representation is itself problematic. See Faretta at 835; State v. Wilkerson, Pike App.

Nos. 06CA749, 06CA750, 06CA751, 2008-Ohio-398, at ¶13. We also perceive

Mootispaw’s comment that he was “ready to proceed” pro se because of a conversation

with Barton to raise a red flag. That comment necessitates further inquiries before we

can determine whether Mootispaw’s waiver was made intelligently.

       {¶51} When the court told Mootispaw it would give him a minute to think about

his waiver of counsel, Mootispaw responded that he spoke about something with Barton

and was “ready to proceed.” Mootispaw’s statement indicates that his decision to waive
Highland App. No. 09CA33                                                                   11


counsel may have been based on a discussion he had with a representative of the Adult

Parole Authority – an agency with a clearly adversarial stake in the hearing.

       {¶52} One inference that can be gleaned from this comment is that Barton told

Mootispaw that she would recommend the STAR program and he thereafter operated

under the mistaken belief that the hearing was non-adversarial in nature, i.e., a

“formality” to get him in to the STAR program. One might also infer that Barton and

Mootispaw may have discussed his need for an attorney. The former inference is

supported in other portions of the record. Although occurring after the waiver colloquy,

the State announced that, in consultation with Barton, it was recommending the STAR

program. Additionally, Mootispaw stated “I agree I need medical attention for

alcoholism, and I agree that’s probably my best alternative out of anything is to seek the

help Ms Barton [sic] and Mr. Delph and I all three discussed these issues.” Thus, it

appears that Mootispaw may have agreed to proceed without an attorney because he

operated under a mistaken belief that the court would adopt the State’s

recommendation for STAR and that he did not require the advice or assistance of

counsel to safeguard that result.

       {¶53} The State argues that Mootispaw intelligently waived counsel because,

prior to the hearing, he successfully got a judge to recuse himself from the case. The

record does reflect that while in prison and in advance of filing a pro se motion for

judicial release, Mootispaw filed a pro se recusal motion and affidavit. In it, he asked

the sitting judge to recuse himself because that judge prosecuted him in 1993 and

would be biased. The court granted the motion. We admit that Mootispaw

demonstrated some understanding of the criminal justice system by filing the pro se
Highland App. No. 09CA33                                                                12


request for recusal. But possessing the understanding necessary to file pro se motions

does not necessarily demonstrate that Mootispaw also possessed a fuller awareness of

the law, the disadvantages of appearing pro se in a hearing on supervision violations, or

that he waived counsel with “eyes open” to the possible consequences of such a

decision. See State v. Irwin, Cuyahoga App. No. 90772, 2009-Ohio-848, at ¶40; State

v. Richards (Sept. 20, 2001), Cuyahoga App. No. 78457, 2001 WL 1134880, at *3.

       {¶54} The State also contends that Mootispaw intelligently waived counsel

because his criminal history was extensive and “spanned nearly twenty-five pages.”

The length of Mootispaw’s criminal history might indicate that he had some awareness

of the value of a professionally trained advocate and could intelligently waive that

assistance. See Doyle at ¶15. But such an inference is only one factor in our analysis

of the totality of circumstances that occurred at the hearing.

       {¶55} Finally, the State argues that even if Mootispaw had elected to be

represented by counsel, the court could still have sent him to prison. The State is

correct. Nonetheless, this argument is of no import in determining whether Mootispaw

intelligently waived his right to counsel.

       {¶56} In light of the strong presumption against waiver of the fundamental right

to counsel, see Gibson, supra, at 377, we conclude that the totality of circumstances

indicate that the court did not obtain a knowing, intelligent, and voluntary waiver. There

was no warning concerning the dangers of self-representation. Nor do we find any

discussion of possible defenses to the allegations. And at a minimum, Mootispaw’s

comment that he was “ready to proceed” pro se because of a conversation with Barton

required the court to make further inquiries about Mootispaw’s rationale for waiving
Highland App. No. 09CA33                                                                   13


counsel on that basis and to assure that he fully understood the potential ramifications

of such a decision. Included in that dialogue should be an express warning that the

court is not bound by any recommendations resulting from negotiations between the

accused and the State. Here, the court did indicate prior to the waiver colloquy that it

was “up to me” to determine whether to reimpose the prison sentence. However, that

quick reference was worthy of being repeated after the disclosure of negotiations

between Mootispaw and the State.

                                    IV. Voluntariness of Plea

       {¶57} Our disposition of his first two assignments of error renders this

assignment of error is moot and we do not address it. App.R.12(A)(c).

                                            V. Conclusion

       {¶58} Having sustained Mootispaw’s first and second assignments of error, we

reverse the order of the trial court, vacate Mootispaw’s pleas, and remand this action for

proceedings consistent with this opinion.

                                                                 JUDGMENT REVERSED
                                                                AND CAUSE REMANDED.
Highland App. No. 09CA33                                                                    14


                                    JUDGMENT ENTRY

    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Highland
County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Abele, J.: Concurs in Judgment and Opinion.
McFarland, P.J.: Dissents.


                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
