         [Cite as State v. Murphy, 2018-Ohio-1063.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :   APPEAL NO. C-170390
                                                      TRIAL NO. C-17CRB-12256
        Plaintiff-Appellee,                       :
                                                          O P I N I O N.
  vs.                                             :

RYAN K. MURPHY,                                   :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 23, 2018


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos,
Assistant Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



C UNNINGHAM , Judge.

       {¶1}    Defendant-appellant Ryan K. Murphy appeals his conviction for

canoeing on the Little Miami River without a life jacket in the vessel, in violation of

R.C. 1547.25 (A)(2), a fourth-degree misdemeanor.

       {¶2}    Murphy was unrepresented at his arraignment, at which time he

pleaded not guilty and was informed of the maximum penalty for the offense. He

told the court he was undecided if he would obtain trial counsel, and he remained

undecided when he appeared a few weeks later for a nonjury trial. The trial was

continued, and when Murphy appeared after the continuance, he stated a desire to

waive his right to an attorney and then signed a waiver-of-counsel form. After an

inquiry, the trial court accepted the waiver. Murphy proceeded without counsel, was

found guilty, and was fined $100.

       {¶3}    In his sole assignment of error, Murphy argues that he did not

knowingly, intelligently, and voluntarily waive his Sixth Amendment right to trial

counsel.   Because the record demonstrates that Murphy effectively waived his

constitutional right to trial counsel, we affirm his conviction.

       {¶4}    Whether Murphy waived his right to counsel is an issue that we

review de novo. State v. Nelson, 2016-Ohio-8064, 75 N.E.3d 785, ¶ 17 (1st Dist.). An

effective waiver of the Sixth Amendment right to counsel must be voluntary,

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

paragraph one of the syllabus.       The trial court conducting the trial where the

defendant wishes to waive his right to counsel is required to make a sufficient inquiry

“to determine whether [the] defendant fully understands and intelligently

relinquishes” that right. Id. at paragraph two of the syllabus.




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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}    In State v. Vordenberge, 148 Ohio App.3d 488, 2002-Ohio-1612, 774

N.E.2d 278 (1st Dist.), this court discussed the general principles involved when

determining if a waiver of counsel passes “constitutional muster.” Id. at ¶ 12. We

stated that

       for an effective waiver of the right to counsel, the defendant must have

       “some sense of the magnitude of the undertaking and the hazards

       inherent in self-representation.”       See State v. Ebersole, 107 Ohio

       App.3d 228, 294, 668 N.E.2d 934 (1999), quoting State v. Weiss, 92

       Ohio App.3d 681, 685, 637 N.E.2d 47 (1993). For the trial court to

       provide an effective waiver of counsel, it should candidly and

       thoroughly discuss with the defendant “ ‘the nature of the charges, the

       statutory offenses included with 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.’ ” See State v. Watson, 132

       Ohio App.3d 57, 64, 724 N.E.2d 469 (8th Dist.1998), quoting Von

       Moltke v. Gilles, 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (1948);

       State v. McCray, 1st Dist. Hamilton No. C-840426, 1985 WL 6717

       (Mar. 27, 1985).

Vordenberge at ¶ 12.

       {¶6}    This court recognized also that a defendant must know the

disadvantages of self-representation, and stated that the trial court “must inform the

defendant that ‘he will be required to follow the same rules of procedure and

evidence which normally govern the conduct of a trial.’ ” Id., quoting State v. Doane,

69 Ohio App.3d 638, 646-647, 591 N.E.2d 735 (11th Dist.1990).



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶7}     The best way for the trial court to insure the defendant understands

the perils of self-representation, and that this understanding is reflected in the

record, is for the trial court to specifically warn the defendant of the technical

difficulties he will encounter when acting as his own counsel. But it is not the only

way. See United States v. Hafen, 726 F.2d 21, 26 (1st Cir.1984). The focus is on what

the defendant knew and understood, and the record must establish that the

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

Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975),

quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87

L.Ed. 268 (1942). See also State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6406,

858 N.E.2d 1144, ¶ 102-103.

       {¶8}     Thus, there is no set “formula or script” for the court to follow when

ascertaining if there has been a valid waiver of counsel. Iowa v. Tovar, 541 U.S. 77,

88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). An intelligent waiver of counsel “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.” Id. See State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594,

63 N.E.3d 93, ¶ 30, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82

L.Ed. 1461 (1938) (“Whether a defendant’s choice was made with eyes open typically

‘depend[s], in each case, upon the particular facts and circumstances surrounding

that case, including the background, experience, and conduct of the accused.’ ”).

Ultimately, whether the waiver was constitutionally valid must be decided on a case-

by-case basis. Vordenberge, 148 Ohio App.3d 488, 2002-Ohio-1612, 774 N.E.2d

278, at ¶ 12.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}    Here, the transcripts show that the trial court informed Murphy that

he was charged with operating a boat without a life jacket aboard, a fourth-degree

misdemeanor violation of R.C. 1547.25. Murphy told the trial court of his defense to

this simple offense—“I [] know you don’t have to wear a life jacket in a boat.” The

transcripts also show the court advised Murphy that he had the right to be

represented by an attorney; that, if he qualified, he could have the court appoint an

attorney for him at no expense; and that there may be defenses to the charges that

Murphy was not aware of due to his lack of legal training.

       {¶10}   Further, the court warned Murphy that there were potential “negative

consequences” of self-representation and that the court was not permitted to give

him any “legal advice.”   Although the court did not specifically explain to Murphy

that he would be required to follow the same rules of procedure and evidence that

normally govern the conduct of a trial, Murphy told the court that he previously had

been represented by public defenders and opined that “[t]hey don’t really help.”

Thus, the trial court was aware that Murphy had experience with the courts and he

knew the role and challenges of defense counsel.

       {¶11}    Murphy, who had been told that he could go to jail for 30 days,

clearly understood the negative consequences that could result from his waiver of

counsel, informing the court at one point that he was not opposed to going to jail “for

a couple days” to “save money.” Finally, Murphy repeatedly told the court that he

understood the right he was waiving and the implications of the waiver.

       {¶12}   Notwithstanding this record, Murphy argues that this case is

analogous to State v. Obermeyer, 152 Ohio App.3d 360, 2003-Ohio-1741, 787 N.E.2d

729 (1st Dist.). In Obermeyer, the defendant was charged with interference with

custody, in violation of R.C. 2919.23. Id. at ¶ 1. He signed a waiver of counsel and



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                     OHIO FIRST DISTRICT COURT OF APPEALS



entered a no contest plea that the trial court accepted. Id. at ¶ 3. The trial court,

however, “did not discuss with Obermeyer the nature of the charge, the statutory

offense, the range of allowable punishments, including the maximum sentence for

the offense, or any possible defenses available to Obermeyer.” Id. at ¶ 8. And the

court “failed to thoroughly investigate whether Obermeyer had an understanding of

the entire matter and an awareness of the hazards of representing himself.” Id.

When faced with that record, we held, as the state had conceded, that Obermeyer had

not validly waived his right to counsel.

       {¶13}   This court’s focus in Obermeyer was on the trial court’s failures when

inquiring about Obermeyer’s knowledge and understanding of the right he was

waiving and the burden he was facing, and there was no discussion of anything in the

record that otherwise demonstrated Obermeyer’s knowledge and understanding of

the right he was waiving.      As the state argues, the facts of this case are easily

distinguished from Obermeyer.

       {¶14}   The determinative facts show that Murphy had told the court of his

experience in the court system, expressed his appreciation of the charges that

comprised a violation of R.C. 1547.25, and told the court of his defense. Murphy

further acknowledged that he was facing a jail term, knew the role of counsel, and

had some appreciation of the hazards inherent in self-representation. The trial

court’s inquiry to determine whether Murphy fully understood and intelligently

relinquished his right to counsel, when coupled with these other facts, was sufficient

to demonstrate a valid waiver.

       {¶15}   Accordingly, we overrule the assignment of error and affirm the trial

court’s judgment.

                                                                 Judgment affirmed.



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                     OHIO FIRST DISTRICT COURT OF APPEALS




M OCK , P.J., and M YERS , J., concur.


Please note:
       The court has recorded its own entry this date.




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