[Cite as State v. Alexander, 2016-Ohio-5015.]


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

STATE OF OHIO,                  :
                                :   Case No. 15CA3492
     Plaintiff-Appellee,        :
                                :
     vs.                        :   DECISION AND JUDGMENT
                                :   ENTRY
ZACHARY R. ALEXANDER,           :
                                :
     Defendant-Appellant.       :   Released: 07/12/15
_____________________________________________________________
                          APPEARANCES:

John A. Gambill, Portsmouth, Ohio, for Appellant.

Sherri K. Rutherford, Chillicothe Law Director, and Michele Rout, Assistant
Law Director, Chillicothe, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Zachary R. Alexander appeals from his conviction for domestic

menacing, a charge for which he was convicted in the Chillicothe Municipal

Court after a jury trial. On appeal, Appellant contends that the trial court

committed reversible and prejudicial error in not demonstrating substantial

compliance with Crim.R. 44(A) by making sufficient inquiry to determine

whether he fully understood and intelligently relinquished his right to

counsel, in violation of Section 10, Article I of the Ohio Constitution and

Sixth and Fourteenth Amendments of the United States Constitution. We
Ross App. No. 15CA3492                                                          2

agree; however, we find that the trial court failed to substantially comply

with Crim.R. 44(B), which governs assignment of counsel in petty offenses,

rather than Crim.R. 44(A), which governs assignment of counsel in serious

offenses.

      {¶2} Because Crim.R. 44(B) simply provides that a sentence of

confinement may not be imposed upon an unrepresented defendant

convicted of a petty offense, without a valid waiver of the right to counsel,

we find that the proper remedy is to affirm Appellant’s conviction, but

reverse and vacate the confinement portion of his sentence. Thus,

Appellant’s sole assignment of error is sustained, to the extent we construe it

to be an argument based upon a violation of Crim.R. 44(B). Accordingly,

although Appellant’s conviction is affirmed, we must reverse the trial court’s

judgment with respect to the imposition of a ten-day period of confinement

and remand this cause to the trial court with the instruction to vacate the

confinement portion of Appellant’s sentence.

                                    FACTS

      {¶3} Appellant was charged with domestic menacing, a second degree

misdemeanor in violation of R.C. 2919.25(C), by way of a criminal
Ross App. No. 15CA3492                                                                                    3

complaint filed in the Chillicothe Municipal Court on March 24, 2015. 1 The

trial court orally advised Appellant of his right to counsel at this

arraignment. Appellant responded that he did not want court appointed

counsel and that he "may seek outside counsel." Nevertheless, Appellant

executed a written waiver of his right to counsel and entered a plea of not

guilty. The matter proceeded to a bench trial on May 15, 2015. At the

beginning of trial, it was simply noted that Appellant was not represented by

counsel, without any further discussion. Appellant was ultimately convicted

of fourth-degree misdemeanor domestic menacing and was sentenced to ten

days in jail and probation for one year.2

                                 ASSIGNMENT OF ERROR

“I.      THE TRIAL COURT COMMITTED REVERSIBLE AND
         PREJUDICIAL ERROR IN NOT DEMONSTRATING
         SUBSTANTIAL COMPLIANCE WITH CRIM.R. 44(A) BY
         MAKING A SUFFICIENT INQUIRY TO DETERMINE WHETHER
         APPELLANT FULLY UNDERSTOOD AND INTELLIGENTLY
         RELINQUISHED HIS RIGHT TO COUNSEL IN VIOLATION OF
         SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND
         SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED
         STATES CONSTITUTION.”




1
  We note that although the record before us consistently refers to Appellant’s charged offense as “domestic
menacing,” R.C. 2919.25(C) refers to the offense as “domestic violence.”
2
  The trial court dismissed the second-degree misdemeanor charge, finding that the State failed to introduce
evidence that Appellant had a prior conviction of domestic violence, but found Appellant guilty of
domestic menacing as a fourth-degree misdemeanor.
Ross App. No. 15CA3492                                                           4

                         STANDARD OF REVIEW

      {¶4} "The Sixth Amendment to the United States Constitution

provides that criminal defendants shall have the right to the assistance of

counsel for their defense." State v. Bristow, 4th Dist. Scioto Nos. 07CA3186,

07CA3187, 2009-Ohio-523, ¶ 12. "The right to counsel applies to

misdemeanor prosecutions that could result in incarceration." State v.

Vordenberge, 148 Ohio App.3d 488, 492, 774 N.E.2d 278 (1st Dist. 2002)

(internal citations omitted). However, “[t]he Sixth Amendment * * * [also]

guarantees that a defendant in a * * * state criminal trial has an independent

constitutional right of self-representation and that he may proceed to defend

himself without counsel when he voluntarily, and knowingly and

intelligently elects to do so.” State v. Neyland, 139 Ohio St.3d 353, 2014-

Ohio1914, 12 N.E.3d 1112, ¶ 71; quoting State v. Gibson, 45 Ohio St.2d

366, 345 N.E.2d 399 (1976), paragraph one of the syllabus; citing Faretta v.

California, 422 U.S. 806, 95 S.Ct. 2525 (1975). “To establish an effective

waiver of the right to counsel, the trial court must make sufficient inquiry to

determine whether the defendant fully understands and intelligently

relinquishes that right.” State v. Weddington, 4th Dist. Scioto No.

13CA3560, 2014-Ohio-1968, ¶ 9; quoting State v. Bristow, 4th Dist. Scioto
Ross App. No. 15CA3492                                                          5

Nos. 07CA3186, 07CA3187, 2009-Ohio-523, ¶ 12; citing Gibson, supra, at

paragraph two of the syllabus; see also State v. Vordenberge, supra, at 492.

“There is no single, definitive test to determine whether a defendant

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

v. Mootispaw, 4th Dist. Highland No. 09CA33, 2010-Ohio-4772, ¶ 21.

Instead, appellate courts should conduct a de novo review and independently

examine the record to determine whether the totality of circumstances

demonstrates a knowing, intelligent, and voluntary waiver of the defendant's

right to counsel. Id.

                            LEGAL ANALYSIS

      {¶5} In his sole assignment of error, Appellant contends that the trial

court committed reversible and prejudicial error by failing to demonstrate

substantial compliance with Crim.R. 44(A) in that it failed to make sufficient

inquiry to determine whether Appellant fully understood and intelligently

relinquished his constitutional right to counsel. The State counters by

arguing that Appellant was verbally advised of his right to counsel at his

arraignment, that he signed a written waiver at that time and decided to

proceed without counsel.

      {¶6} Crim.R. 44, which addresses the assignment of counsel and the

waiver thereof, provides as follows:
Ross App. No. 15CA3492                                                  6

     “(A) Counsel in serious offenses

     Where a defendant charged with a serious offense is unable to

     obtain counsel, counsel shall be assigned to 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. In addition, in

     serious offense cases, the waiver shall be in writing.”
Ross App. No. 15CA3492                                                        7

      {¶7} Initially, we note that both Appellant and Appellee base their

arguments on the requirements of Crim.R. 44(A), which applies to serious

offenses. However, because Appellant’s offense is classified as a petty

offense, Crim.R. 44(B) is the applicable rule. Appellant was charged with a

second degree misdemeanor offense of “domestic menacing,” as referred to

in the record. The maximum term of confinement for this particular second

degree misdemeanor is ninety days. Crim.R. 2(D) defines “petty offense” as

“a misdemeanor other than a serious offense.” Crim.R. 2(C) defines

“serious offense” as “any felony, and any misdemeanor for which the

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

Thus, because this particular second degree misdemeanor charge was subject

to a maximum sentence of ninety days, it is excluded from the definition of

serious offense and is thus a petty offense. As such, we analyze Appellant’s

argument under Crim.R. 44(B) rather than Crim.R. 44(A).

      {¶8} As this Court noted in State v. Weddington, the Supreme Court

of Ohio has stated as follows regarding the waiver of counsel:

      “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
Ross App. No. 15CA3492                                                        8

      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

      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.” Weddington,

      supra, at ¶ 13; quoting State v. Gibson, 45 Ohio St.2d 366, 377,

      345 N.E.2d 399 (1976); quoting Von Moltke v. Gillies, 332 U.S.

      708, 723, 68 S.Ct. 316 (1948); see also State v. Martin, supra, at

      ¶ 40.

      {¶9} Further, as this Court noted in State v. Jones, 4th Dist. Athens

No. 14CA7, 2014-Ohio-5177, ¶ 11, "[t]he assertion of the right to self-

representation must be clear and unequivocal. Citing State v. Neyland at

¶ 72; citing State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d

97, ¶ 68; State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 722 N.E.2d

81, ¶ 38. Moreover, and as noted in Jones, "in order for the defendant to

‘competently and intelligently * * * choose self-representation, he should be
Ross App. No. 15CA3492                                                            9

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.’ " Jones at ¶ 12; quoting Faretta, v. California, supra,

at 835; quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279,

63 S.Ct. 236 (1943); State v. Mootispaw, supra, at ¶ 20.

      {¶10} Finally, and importantly, in State v. Vordenberge, supra, the

First District Court of Appeals reasoned that being told of the right to

counsel and waiving that right in a written form during an arraignment is

"standing alone, insufficient to demonstrate a knowing, intelligent, and

voluntary waiver of counsel for trial." Vordenberge at 493. The court went

on to state that "[t]he inquiry necessary to establish a constitutionally valid

waiver for trial is, by its nature, more suited to the trial court, and not the

arraignment proceeding[,]" due to the fact that the " 'cattle call' nature of the

arraignment proceedings does not lend itself to the judge or magistrate

conducting an inquiry sufficient to pass constitutional muster." Id.

      {¶11} A review of the record presently before us indicates that

Appellant appeared at an arraignment hearing on March 27, 2015, at which

time he was orally advised of his right to counsel, informed the court that he

did not want appointed counsel but "may seek outside counsel," signed a

written waiver of counsel and entered a plea of not guilty. The transcript
Ross App. No. 15CA3492                                                  10

from the arraignment hearing contains the following exchange between

Appellant and the trial court:

      "COURT:       This is CRB1500527, the State against Zachory

      Alexander, Mr. Alexander, do you have a copy of the

      complaint?

      MR. ALEXANDER:             Yes, sir. I do.

      COURT:        You also have a pink sheet there advising you of

      the rights and the pleas. Do you understand those?

      MR. ALEXANDER:             Yes, your Honor.

      COURT:        Go ahead and sign the first blank line. This is a

      charge of domestic menacing. It's a second degree

      misdemeanor punishable by up to ninety days in jail and a fine

      up to $750.00. Do you understand what you're charged with?

      MR. ALEXANDER:             Yes, your Honor.

      COURT:        Do you want to hire an attorney?

      MR. ALEXANDER:             Not court appointed, sir.

      COURT:        You're going to hire one?

      MR. ALEXANDER:             I may seek outside counsel.

      COURT:        Do you want time to do that or are you going to

      enter a plea today?
Ross App. No. 15CA3492                                                       11

      MR. ALEXANDER:             I'll still enter a plea today.

      COURT:       Go ahead and sign the second blank line on that

      pink sheet then, if you're going to go ahead without an attorney

      today. June 22nd will be the last day for trial to the court."

      {¶12} The "pink sheet" referred to by the trial court and signed by

Appellant is entitled "Notice to All Accused of a Criminal or Traffic

Offense." It provides as follows, with respect to the right to counsel and

waiver thereof:

      "If you are charged with an offense, you have the following

      rights:

      ***

      2. You have the right to have the charge explained to you and

      to understand the possible penalties.

      3. You have the right to be represented by a lawyer. You have

      the right to be granted a reasonable continuance to obtain a

      lawyer even though you many eventually wish to plead guilty

      or no contest.

      4. If you are charged with an offense that carries a possible jail

      sentence, and if you cannot afford to hire an attorney, you have

      the right to have a lawyer assigned to represent you. There will
Ross App. No. 15CA3492                                                                                12

        be a fee of $25 charged to anyone who either requests or

        obtains a public defender."3

Appellant also signed the "Waiver of an attorney" section at the bottom of

the pink sheet, which provides as follows: "I understand that I have a

constitutional right to counsel (a lawyer), and to have a lawyer assigned to

represent me as stated above, I voluntarily waive my right to counsel and

freely state that I do not want a lawyer."

        {¶13} Although there was a purported waiver of counsel for purposes

of entering a pro se plea of not guilty at the arraignment hearing, we cannot

conclude that such waiver was unequivocal, as Appellant expressly stated he

"may seek outside counsel." Additionally, although the trial court did

inform Appellant of his right to counsel, court-appointed counsel if needed,

the charge against him and the possible penalty, there is no evidence before

us that the trial court informed Appellant of the possible defenses to the

charges and circumstances in mitigation thereof, or the dangers and

3
  The State filed a motion to supplement the appellate record with a "Transcript of Opening Statements to
the gallery of Defendants at the Opening of Arraignments for the Defendant in this Matter as such does
contain an explanation of the Rights and Pleas and information relative to the Right to Counsel." This
Court granted Appellant's motion and the county clerk filed a "Supplemental Notice of Transmission or
Record or Supplement to Record" on November 12, 2015, stating that a transcript of Rights and Pleas held
on March 27, 2015 was included. Our review of the transcript, however, indicates that no such "Rights and
Pleas" was transcribed. Instead, the transcription begins with the trial court addressing Appellant
individually as set forth above. We find, however, that the omission of this portion of the transcript is
inconsequential. As argued by Appellant, a video soliloquy to a gallery of criminal defendants does not
constitute a proper "inquiry" for purposes of Crim.R. 44. See State v. Donkers, 170 Ohio App.3d 509,
2007-Ohio-1557, 867 N.E.2d 903, ¶ 34-35 (11th Dist.) (reasoning that while such a recording may satisfy
Crim.R.10 that defendants be advised of their rights at arraignment, there was no evidence that defendant
was present, was instructed to watch the video or understood the video.).
Ross App. No. 15CA3492                                                         13

disadvantages of self-representation, such as the fact that he would “ ‘be

required to follow the same rules of procedure and evidence which normally

govern the conduct of a trial.’ ” Quoting State v. Vordenberg, supra, at 493;

quoting State v. Doane, 69 Ohio App.3d 638, 646-647, 591 N.E.2d 735

(1990); see also State v. Boyle, 1st Dist. Hamilton No. C-950670, 1996 WL

482945 (Aug. 28, 1996) (failure to warn defendant of hazards of the rules of

evidence resulted in ineffective waiver of counsel).

      {¶14} This Court has previously held that “the right to retained

counsel exists in all cases including ‘petty offenses.’ ” State v. Paul, 4th

Dist. Athens No. CA-980, 1980 WL 350963, *4. In Paul, we further held

that “[e]ven if it is concluded that a defendant fully understands his right to

counsel, further inquiry, even in petty offense cases, of his desire and ability

to retain counsel must be made.” Id. Moreover, we noted in Paul that “[i]f,

in a ‘petty offense’ case, the defendant cannot obtain counsel and there is no

waiver of counsel, the court may try the defendant without counsel, but no

imprisonment may be a part of the penalty.” Id.; citing Crim.R. 44(B). In

Paul, we further noted that the “[a]bility to retain counsel does not rest alone

on indigency.” Id.; citing State v. Tymcio, 42 Ohio St.2d 39, 325 N.E.2d 556

(1975).
Ross App. No. 15CA3492                                                          14

      {¶15} The record before us shows there was no follow up or inquiry

with Appellant regarding his wishes as to hiring counsel prior to the start of

trial. Instead, the only discussion at the beginning of trial was as follows:

      "COURT:       This is CRB1500527, the State against Zachory

      Alexander. He's here; he's not represented by counsel.

      Assistant Law Director Michele Rout is here on behalf of the

      State. This case scheduled [sic] for trial. Mrs. Rout, is the

      State ready to proceed?

      MS. ROUT: We are you Honor. * * *

      COURT:        Mr. Alexander, are you ready to proceed with the

      trial?

      MR. ALEXANDER:             Yes, your Honor. I have three

      witnesses here today.

      COURT:        Alright.

      MR. ALEXANDER:              We will be dealing all the evidence,

      apparently? Is that correct:

      COURT:        I guess. Whatever is offered will be seen.

      MR. ALEXANDER:             Can I put some evidence in as well,

      your Honor?

      COURT:        Yeah, during your part of the trial, you will.
Ross App. No. 15CA3492                                                        15

      MR. ALEXANDER:              Thank you."

This exchange prior to trial certainly does not meet the requirements for

establishing a knowing, intelligent and voluntary waiver of Appellant's

constitutional right to counsel or for an inquiry regarding his ability to retain

counsel. Here, there was no unequivocal waiver of counsel at the

arraignment hearing, and there was no inquiry by the trial court as to

Appellant's failure to retain "outside counsel" or his continuing waiver of his

constitutional right to counsel for purposes of trial.

      {¶16} Based on these facts, and in light of the foregoing statutory and

case law, we conclude that the trial court did not demonstrate substantial

compliance with Crim.R. 44(B). Thus, Appellant’s sole assignment of error

is sustained, to the extent we construe it to be an argument based upon a

violation of Crim.R. 44(B). Accordingly, although Appellant’s conviction is

affirmed, we must reverse the trial court’s judgment with respect to the

imposition of confinement and remand this cause to the trial court with the

instruction to vacate the confinement portion of Appellant’s sentence.

                                        JUDGMENT AFFIRMED IN
                                        PART, REVERSED IN PART,
                                        AND CAUSE REMANDED FOR
                                        FURTHER PROCEEDINGS
                                        CONSISTENT WITH THIS
                                        OPINION.
Ross App. No. 15CA3492                                                         16

                           JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED IN PART,
REVERSED IN PART, AND CAUSE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH THIS OPINION. Appellant and
Appellee shall split 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 Chillicothe Municipal 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.

Harsha, J.: Concurs in Judgment and Opinion.
Abele, J.: Concurs in Judgment Only.

                                        For the Court,

                                 BY: _____________________________
                                     Matthew W. McFarland, 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.
