[Cite as Mt. Vernon v. Wiess, 2014-Ohio-4016.]


                                       COURT OF APPEALS
                                      KNOX COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


THE CITY OF MOUNT VERNON                         :   JUDGES:
                                                 :
                                                 :   Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                     :   Hon. John W. Wise, J.
                                                 :   Hon. Craig R. Baldwin, J.
                                                 :
-vs-                                             :
                                                 :
CORY M. WEISS                                    :   Case No. 13CA34
                                                 :
                                                 :
        Defendant - Appellant                    :   OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Knox County
                                                     Municipal Court, Case No.
                                                     13CRB947



JUDGMENT:                                            Affirmed



DATE OF JUDGMENT:                                    September 15, 2014



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

CHIP MCCONVILLE                                      JOHN A. DANKOVICH
City Law Director                                    Knox County Public Defender
                                                     One Public Square
By: P. ROBERT BROEREN, JR.                           Mount Vernon, OH 43050
Assistant Director of Law
Office of the City of Mount Vernon
5 North Gay Street, Suite 222
Mount Vernon, OH 43050
Knox County, Case No. 13CA34                                                            2

Baldwin, J.

       {¶1}   Defendant-appellant Cory Weiss appeals his conviction and sentence

from the Mount Vernon Municipal Court. Plaintiff-appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On September 25, 2013, an affidavit was filed in Mount Vernon Municipal

Court alleging that appellant had failed to stop after an accident on private property in

violation of Section 335.13(a) of the Codified Ordinances of the City of Mount Vernon, a

misdemeanor of the first degree. Prior to his personal appearance before the court on

October 11, 2013, appellant, along with others who appeared for arraignment, was

advised of the right to counsel at all stages of the proceedings and that counsel would

be appointed if he or she were indigent. Appellant then entered a plea of not guilty and

indicated that he needed an attorney. The trial court set a pretrial for October 23, 2013

and a trial for November 6, 2014.

       {¶3}   At the October 23, 2013 pretrial hearing, appellant informed the trial court

that Attorney Matthew Malone was his attorney and that his attorney was going to enter

an appearance on his behalf that day. When asked by the trial court if his attorney knew

about the November 6, 2013 trial date, appellant indicated that he did. The trial court

told appellant that “if that date doesn’t work out for him, he can call the prosecutor’s

office.” Transcript from October 23, 2013 pretrial at 2.

       {¶4}   Appellant appeared for the scheduled trial on November 6, 2013 and

indicated that he was asking for a continuance because his attorney was in a hearing all

day and had been told by the prosecutor that there would not be a continuance. The

following discussion took place on the record:
Knox County, Case No. 13CA34                                                           3


      {¶5}   MR. BROEREN:         Is that my office talked with an attorney this morning.

He said that Mr. Weiss had contacted him this morning in an attempt to retain him. He

asked about a continuance.      I had – my office told him that we had subpoenaed

witnesses, that Mr. Weiss had been afforded – had been told of his, you know, ability to

get an attorney back at the last pre-trial hearing back on October 23rd. The attorney

was then directed to the Clerk’s office.   He spoke with the Clerk’s office and they

relayed, it’s my understanding, the same information to him, that we had set this and we

are prepared to proceed today and that, that was our intention. Thank you, Your Honor.

      {¶6}   THE COURT:       Mr. Weiss, there was a discussion at the arraignment

concerning an attorney. That was back early in October, and October the 23rd you were

here two weeks ago today, again we talked about your right to an attorney, and

yesterday, you called your attorney.

      {¶7}   MR WEISS: No, I talked to him. He tried to contact a week ago and

never got a response back. He called them this morning finally and finally talked to

somebody.

      {¶8}   THE COURT:        The Mount Vernon Municipal Court has been at this

address for about 20 years.

      {¶9}   MR WEISS: Right, I know that.

      {¶10} THE COURT: And so I think he’s had plenty of time to know where we’re

at and to make contact with this Court to enter a finding – any kind of an appearance in

your behalf. He’s had plenty of time. When he calls the prosecutor the morning of the

trial, it doesn’t indicate that you’ve given him much notice, so we’re gonna go ahead
Knox County, Case No. 13CA34                                                             4


without him. You, you know, we just can’t wait around and let people jerk us around like

this.

        {¶11} MR. WEISS: I’m not trying to jerk anybody around at all.

        {¶12} THE COURT:        Well when you don’t call – your attorney doesn’t call until

the morning of the hearing that’s been scheduled for over a month, I’m being jerked

around.

        {¶13} MR. WEISS: Right.

        {¶14} Transcript from November 6, 2013 at 4-5.

        {¶15} The matter then proceeded to trial. The trial court found appellant guilty.

Pursuant to a Judgment Entry filed on November 6, 2013, the trial court sentenced

appellant to 180 days in jail, but suspended all but 15 days. The trial court also placed

appellant on probation for a period of five (5) years, fined him $600.00, ordered him to

make restitution in the amount of $1,857.68 to the victim, and suspended appellant’s

driver’s license for three years.

        {¶16} Appellant now raises the following assignment of error on appeal:

        {¶17} THE TRIAL COURT ERRED IN DENYING APPELLANT’S RIGHT TO

COUNSEL.

                                                 I

        {¶18} Appellant, in his sole assignment of error, argues that the trial court erred

in denying him his right to retained counsel.

        {¶19} Appellant did not expressly waive his right to counsel. However, as this

Court noted in State v. Dahlin, 5th Dist. Knox No. 2007-CA-7, 2008 -Ohio- 4175
Knox County, Case No. 13CA34                                                          5


                    Actions of particular a defendant may indicate waiver of right

             to counsel, permitting waiver to be inferred. State v. Ebersole

             (1995) 107 Ohio App.3d 288, 668 N.E.2d 934. A defendant may not

             be permitted to take advantage of the trial court by claiming his

             right to counsel in order to frustrate or delay the judicial process.

             State v. Wellman (1974), 37 Ohio St .2d 162, 309 N.E.2d 915.

             “Thus, when a defendant refuses to take effective action to obtain

             counsel, and on the day of trial requests a continuance in order to

             delay the trial, the court may, under proper conditions, be permitted

             to infer a waiver of the right to counsel” Hook [ (1986), 33 Ohio

             App.3d 101, 514 N.E.2d 721] supra, at 723, citing United States v.

             Terry (C.A.5, 1971), 449 F.2d 727; United States v. Hollis (C.A.5,

             1971), 450 F.2d 1207; and United States v. Leavitt (C.A.9, 1979),

             608 F.2d 1290.

                    To ascertain whether a waiver may be inferred, the court

             must take into account the total circumstances of the individual

             case, including the background, experience, and conduct of the

             accused person. Id. at 724, citing Johnson v. Zerbst (1938), 304

             U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461; and Ungar v.

             Sarafite (1964), 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921.

             Id at paragraphs 39-40.

      {¶20} As is stated above, appellant, at his October 11, 2013 arraignment,

indicated that he needed counsel. He had been informed of his right to counsel that day.
Knox County, Case No. 13CA34                                                             6


At the pretrial on October 23, 2013, he told the trial court that he had retained an

attorney who was going to enter an appearance on his behalf that day and that his

attorney knew of the trial date in two weeks. The trial court advised appellant to have his

counsel contact the prosecutor’s office if that date was not good for him. Appellant

indicated that he would.

      {¶21} From the record, it is clear that appellant did not contact an attorney in an

attempt to retain him until the morning of the November 6, 2013 trial.

      {¶22} Based on the foregoing, we find that the trial court did not err in inferring

that appellant waived his right to counsel. We find appellant waived his right to counsel

by his conduct. State v. Saylor, 5th Dist. Guernsey App. No. 01 CA32, 2002-Ohio-4241.

      {¶23} Appellant’s sole assignment of error is, therefore, overruled.

      {¶24} Accordingly, the judgment of the Mount Vernon Municipal Court is

affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Wise, J. concur.
