[Cite as Parma v. Battaia, 2012-Ohio-173.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 96569




                                    CITY OF PARMA
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                    GENO BATTAIA
                                                    DEFENDANT-APPELLANT




                                 JUDGMENT:
                           REVERSED AND REMANDED



                                    Criminal Appeal from the
                                     Parma Municipal Court
                                     Case No. 10 CRB 03693

        BEFORE: Celebrezze, P.J., S. Gallagher, J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                      January 19, 2012
ATTORNEY FOR APPELLANT

Justin M. Smith
The J. M. Smith Co., L.P.A.
24400 Highpoint Road
Suite 7
Beachwood, Ohio 44122


ATTORNEYS FOR APPELLEE

Timothy G. Dobeck
Law Director/Chief Prosecutor
City of Parma
BY: Karl R. Wetzel
Senior Assistant Prosecutor
6611 Ridge Road
Parma, Ohio 44129
FRANK D. CELEBREZZE, JR., P.J.:

      {¶ 1} Appellant,   Geno Battaia, appeals from three misdemeanor

convictions for criminal damaging and disorderly conduct. Battaia argues

that his right to counsel was violated when the trial court did not properly

advise him of the dangers of proceeding without an attorney when he

dismissed his court appointed counsel just before trial, and that the trial

court should have continued the trial when Battaia dismissed his attorney.

After a thorough review of the record and relevant law, we reverse.

                   I.    Factual and Procedural History

      {¶ 2} On August 15, 2010, appellant was aboard a “party bus” with a

group of friends that ended up parked outside the Blue Moose Saloon in

Parma, Ohio. Bus passengers disembarked and continued their festivities
inside the Blue Moose.      At some point during the evening, emergency

dispatchers received 9-1-1 calls about a possible assault outside the bar.

Sergeant Nicholas Hunter testified at trial that he first encountered Battaia

outside the bar fighting with his friends. Battaia claimed that a bouncer at

the door had assaulted him and that he was injured. Officer James Mack

interviewed Battaia about the assault and testified that he refused medical

treatment.    Officer Mack also noted that Battaia appeared extremely

intoxicated; he advised Battaia to reboard the bus and stay there.         Sgt.

Hunter eventually issued a citation to Battaia for disorderly conduct at

approximately 1:00 a.m. for “struggl[ing] with friends and refus[ing] to leave.”

 Battaia then indicated he would reboard the bus and stay there until his

friends rejoined him to take him home, and the officers left.

      {¶ 3} Approximately a half hour later, the police were again dispatched

to the Blue Moose when Battaia called 9-1-1 asking for paramedics. When

Sgt. Hunter arrived, he saw Battaia, who appeared extremely intoxicated,

struggling with paramedics and using foul language. After talking to Officer

Mack, Battaia again refused medical treatment, and Officer Mack issued him

a second disorderly conduct citation. Officer Mack testified that Battaia was

transported to a detox cell because he was such a problem.

      {¶ 4} Corrections Supervisor Karen Tyrpak reported for work at 7:00

a.m. at the Parma jail, where Battaia had spent the night. She testified that
at approximately 10:30 a.m., the door monitor system of Battaia’s cell began

malfunctioning.   The system indicated that the door was open, but when

checked, it was closed and locked. The door had functioned properly at 8:30

a.m. when Tyrpak had given Battaia breakfast, but later when she examined

the door, she found that it was sparking, smoking, and smelling of urine.

Battaia was moved to a different cell, and Tyrpak noticed urine around and

on the door. A maintenance person also found urine inside the door’s locking

mechanism.

      {¶ 5} Battaia was arraigned on September 1, 2010, on two counts of

disorderly conduct in violation of Parma Municipal Code 648.04, fourth

degree misdemeanors, and one count of criminal damaging in violation of

Parma Municipal Code 642.10, a second degree misdemeanor.             He was

appointed counsel after executing an affidavit of indigency, and pretrials were

conducted.        A day or two before trial, Battaia filed a grievance against

his attorney and indicated that the attorney had not done what he was

supposed to do to properly defend Battaia.      On the day of trial, Battaia

indicated that he, not his attorney, had requested the 9-1-1 tapes and video

from the booking area of the Parma jail through public records requests. The

court asked Battaia if he wished the attorney to continue to represent him,

and Battaia said he did not. The court then instructed Battaia to sign a
waiver of counsel with no discussion of the implications, and the court

proceeded to a bench trial.

      {¶ 6} After the opening statement by the city of Parma, Battaia

requested a continuance to prepare because he had not expected to defend

himself without an attorney. The trial court refused and trial continued. At

its conclusion, the trial court found Battaia guilty of two counts of disorderly

conduct and one count of criminal damaging.             The court immediately

imposed two consecutive 30-day jail sentences in addition to a suspended jail

term of 90 days. The court also imposed a $1,000 fine, costs, and two years

of community control. Battaia moved for a stay of execution, but the court

denied it, and Battaia was immediately taken into custody.

      {¶ 7} Battaia then appealed assigning three errors.

                              II.   Law and Analysis

                              A.    Right to Counsel

      {¶ 8} Battaia first argues that “[t]he trial court erred by failing to advise

[him] of the consequences of proceeding to trial pro se and failed to comply

with Criminal Rule 44(B) and (C).”

      {¶ 9} Crim.R. 44(B) and (C) provide:

      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[; and
     this] waiver of counsel shall be in open court and the advice and
     waiver shall be recorded as provided in Rule 22 * * *.

     {¶ 10} This court has previously set forth the appropriate standard for

reviewing the present claim in State v. Richards, 8th Dist. No. 78457, 2001

WL 1134880, *1-2 (Sept. 20, 2001):

     It is axiomatic that a criminal defendant has a right to counsel
     pursuant to the Sixth and Fourteenth Amendments to the United
     States Constitution and Section 10, Article I of the Ohio
     Constitution. Moreover, the Sixth Amendment “* * * guarantees
     that a defendant * * * has an independent constitutional right to
     self-representation.” State v. Gibson (1976), 45 Ohio St.2d 366,
     [345 N.E.2d 399,] paragraph one of the syllabus, citing Faretta v.
     California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.

     To effect a valid waiver of the right to counsel, it is necessary that
     the trial court “make sufficient inquiry to determine whether
     defendant fully understands and intelligently relinquishes that
     right.” Id. at paragraph two of the syllabus. “Before concluding
     there has been a waiver, the court must be satisfied that the
     defendant made an intelligent and voluntary waiver with the
     knowledge that he will have to represent himself and that there
     are dangers in self-representation.” State v. Ebersole (1995), 107
     Ohio App.3d 288, 293[, 668 N.E.2d 934].

     {¶ 11} And in State v. Hughley, 8th Dist. Nos. 92588 and 93070,

2009-Ohio-5824, 2009 WL 3648469, *7, we held:

     Although there is no prescribed colloquy in which the trial court
     and a pro se defendant must engage before a defendant may
     waive his right to counsel, the court must ensure that the
     defendant is voluntarily electing to proceed pro se and that the
     defendant is knowingly, intelligently, and voluntarily waiving the
     right to counsel. Hughley, citing State v. Martin, 8th Dist. No.
     80198, 2003-Ohio-1499, 2003 WL 1561530, citing State v.
      Jackson, 145 Ohio App.3d 223, 227, 762 N.E.2d 438 (8th Dist.
      2001).

      {¶ 12} When determining the sufficiency of the trial court’s advisement,

we have recently reaffirmed the use of the test set forth in Von Moltke v.

Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309 (1948). State v. Birinyi,

 8th Dist. Nos. 95680 and 95681, 2011-Ohio-6257, 2011 WL 6151478, *3.

      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. Von Moltke, 332 U.S. at 724.
      Here, the trial court’s colloquy with Battaia is as follows:

      [Battaia’s attorney]: Your Honor, if I may advise the court of some
      information I just learned today, my client apparently has filed a
      complaint [against me].

      ***

      [The Court]: You filed a complaint against your attorney?

      [Battaia]: Yes, sir. Yes.

      [The Court]: But you still want him to represent you?

      [Battaia]: That’s why I was hoping I would get here early enough,
      that I would have time before the case for this to happen. But
      what I’m trying to say is I asked my attorney to perform a request
      for discovery, since my first meeting with him, on October 14th,
      2010, for him to locate the recordings of the 9-1-1 phone calls, as
      well as booking room tapes of my arrest, for it can show my
      demeanor or whatever. But at the same time, the 9-1-1 calls are
      public record, and I was able to get those, but they weren’t given
      through requests for discovery — which they should be, by law.
      And I have those laws with me, if the Court will be patient.
And I did attempt to get the booking room tapes, but those are
being held by public records, that only through discovery will
those be given to us for viewing purposes. So therefore, I have
not been allowed to get copies of those, for my own, to get. So
therefore, since those are being held, they should be part of the —
sorry sir, I just need water — those are being held, as for
discovery.

And I have not had time to think about it, and I have just come
across this in the past couple weeks. And I have been asking
and asking my attorney and I trusted in him to do these things
for me. And, your Honor, I’m not sure if I should allow my public
defender, Jim, to work on my behalf, for I believe there are some
instances where he didn’t work on my behalf. And that’s some of
what I had to say, but I have all the facts to back it up.

***

[The Court]: You need to make a decision, if you want [your
attorney] to represent you or not.

[Battaia]: May I ask, if [my attorney] doesn’t represent me, how
am I supposed to — I don’t understand.

[The Court]: Your trial is today. It’s here and now. You were
granted a court appointed attorney. You made the decision,
you’re an adult. You made the decision to file a complaint
against your attorney, and to record conversations and alienate
your attorney — if he’s in fact alienated. I don’t know, I would
be if I was your attorney — you made the decision.

Now, being over 18 you’re going to make a decision. The person
that you, it seems, intentionally tried to alienate, do you want
him to represent you? Or do you want to dismiss him, and
represent yourself at this time?

***

[Battaia]: I would not like [my attorney] to represent me any
longer.
      [The Court]: My bailiff, Cindy, is going to give you a waiver of
      counsel. Like I said, you were granted an attorney, appointed
      counsel, you had an opportunity, and now you have released your
      counsel.

      {¶ 13} Battaia then signed and dated a waiver of counsel, and the trial

court stated, “All right. You now represent yourself.     This is a knowing,

voluntary waiver of counsel. We’re ready to proceed.”

      {¶ 14} The record is devoid of any meaningful colloquy discussing the

rights given up by waiving counsel. A talismanic statement by the court that

the waiver is valid does not make it so.       There is no discussion of the

consequences of waiving      counsel, the charges against him, or possible

defenses. It was not Battaia’s intention, prior to the day of trial, to waive

that right. The trial court gave Battaia the ultimatum of going to trial with

an attorney he had no faith in and had undermined his relationship with1 or

representing himself.   There is nothing in the record that his decision to

forego representation was knowing or voluntary. Gibson, 45 Ohio St.2d 366,

at paragraph two of the syllabus (“In order to establish an effective waiver of

right to counsel, the trial court must make sufficient inquiry to determine

whether defendant fully understands and intelligently relinquishes that

right.”). See also Richards, 2001 WL 1134880.


      1 In addition to filing a grievance, Battaia had apparently secretly tape
recorded every meeting he had with his attorney.
      {¶ 15} Therefore, Battaia’s first assignment of error is sustained.        This

holding renders Battaia’s other two assigned errors moot, and they will not be

addressed.2

                                III.   Conclusion

      {¶ 16} The trial court erred when it accepted Battaia’s waiver of counsel

without any meaningful colloquy discussing that decision and ensuring that

the wavier was made knowingly, intelligently, and voluntarily. Therefore,

Battaia’s convictions must be reversed and a new trial ordered.

      {¶ 17} This cause is reversed and remanded to the lower court for

further proceedings consistent with this opinion.

      It is ordered that appellant recover of said appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

Parma Municipal Court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




      2  These errors state: “The trial court’s denial of Appellant’s request to
continue the trial and the Trial Court forcing Appellant to proceed to trial pro se
denied Appellant his right to effective assistance of counsel guaranteed by Article I,
Section 10 of the Ohio Constitution and the Sixth and Fourteenth Amendments to
the United States Constitution[; and] Appellant was denied due process and his
constitutionally guaranteed right to effective assistance of counsel.”
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
EILEEN A. GALLAGHER, J., CONCUR
