[Cite as Highland Hills v. Nicholson, 2014-Ohio-4671.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100577



                      VILLAGE OF HIGHLAND HILLS
                                                           PLAINTIFF-APPELLEE

                                                     vs.

                                LANDON NICHOLSON
                                                           DEFENDANT-APPELLANT




                                   JUDGMENT:
                             REVERSED AND REMANDED


                                       Criminal Appeal from the
                                       Bedford Municipal Court
                                       Case No. 13 TRC 02393

        BEFORE: Boyle, A.J., S. Gallagher, J., and Stewart, J.

        RELEASED AND JOURNALIZED: October 23, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Ross S. Cirincione
Law Director
City of Bedford Heights
Castleton Building
5306 Transportation Boulevard
Garfield Heights, Ohio 44125

Donald C. Williams
1370 Ontario Street
Suite 330
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:

      {¶1} Defendant-appellant, Landon Nicholson, appeals his convictions for

operating a vehicle while under the influence (“OVI”), not having an operator’s licence

for a motorcycle, having illegal plates, and speeding.       He raises the following three

assignments of error for our review:

      1. Appellant was denied his right to counsel in violation of the Sixth
      Amendment to the United States Constitution and Article I, Section 10 of
      the Ohio Constitution.

      2. The trial court erred and violated Landon Nicholson’s due process right
      to a fair trial when it denied Nicholson a continuance even though the
      village had not provided him with full discovery.

      3. Landon Nicholson’s OVI conviction is not supported by legally sufficient
      evidence as required by state and federal due process rights.

      {¶2} Finding merit to his first assignment of error, we vacate Nicholson’s

convictions and remand the matter for further proceedings.

                       Procedural History and Factual Background

      {¶3} On April 18, 2013, Nicholson was charged by complaint in Bedford

Municipal Court on two counts of OVI in violation of R.C. 4511.19(A)(1)(a) (“under the

influence”) and (d) (breath alcohol content (“BAC”) over .08), and several traffic

violations, including no operator’s license in violation of Highland Hills Codified

Ordinance (“HHCO”) 335.01(A) (for not having a motorcycle endorsement), illegal

plates in violation of HHCO 335.11, speeding in violation of HHCO 333.03, and reckless

operation in violation of HHCO 333.09. Nicholson pleaded not guilty to the charges and

his case was assigned to Judge Brian Melling. Nicholson was also declared indigent and
was appointed counsel.

        {¶4} Nicholson’s counsel moved to suppress evidence on June 10, 2013. The

motion was set for hearing on July 23, 2013. On July 23, Visiting Judge Joy Freda held

a hearing.    At the hearing, the judge discussed a plea deal that had been offered to

Nicholson at a prior pretrial, where the OVI for BAC being over .08 would be dismissed

and the remaining OVI would be amended to physical control.              As part of the plea,

Nicholson’s court costs would be reduced from $1,000 to $650, and he would be

sentenced to 30 days in jail, with 27 days suspended. Also as part of the plea deal,

Nicholson would plead guilty to speeding, but the remaining counts would be dismissed.

        {¶5} At the hearing, however, Nicholson informed the judge that he wanted to go

to trial. Nicholson explained, “I would rather present myself in personal FASA. I’ll

represent myself.       I don’t want this guy representing me.    That’s just crazy.   I would

rather take it to trial.”   Nicholson further stated that his attorney had been talking to him,

but “all he’s giving me is promises and I’m not — I’m not happy with that.” Nicholson

told the judge that he told his attorney that he wanted to go to trial, but his attorney said,

“he don’t do trials.”

        {¶6} The judge then told Nicholson that he had to file a motion with the court,

directing his motion to Judge Melling, and indicating why he wanted to represent himself

and why he believed he was qualified to do it. The judge removed appointed counsel

from the case and set trial for September 24, 2013.

        {¶7} Nicholson then requested “complete discovery” from the prosecutor.            The
judge gave Nicholson a copy of the police report, but told him that he would receive full

discovery if he first filed his motion to represent himself and the assigned judge permitted

him to “go forward without the benefit of counsel.”

        {¶8} Nicholson never filed a motion to represent himself.          The original trial

date was continued at the request of the prosecutor.    The trial was then set for October 8,

2013.

        {¶9} A bench trial was held on October 8, before Judge Harry Jacobs.          At the

beginning of the trial, Nicholson informed the judge that he had never received the

dashboard video.    The prosecutor informed the judge that there was no dashboard video.

 At that point, Nicholson requested a continuance so that he could call witnesses.       The

judge denied it and proceeded with trial.

        {¶10} At the close of the evidence, the trial court found Nicholson guilty of the

OVI (“under the influence”), having no operator’s license for a motorcycle, having illegal

plates, and speeding. The trial court dismissed the OVI count based on a BAC over .08,

as well as the reckless operation.   The trial court sentenced Nicholson to 180 days in jail,

with 177 days suspended, and imposed a $1,000 fine. The trial court further suspended

Nicholson’s license for six months, and imposed a $150 fine and costs on each of the

other traffic offenses. It is from this judgment that Nicholson appeals.

                               Right to Self-Representation

        {¶11} The Sixth and Fourteenth Amendments to the United States Constitution

guarantee that persons brought to trial in any state or federal court must be afforded the
right to the assistance of counsel before they can be validly convicted and punished by

imprisonment. See Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932);

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In some

cases, defendants choose to forgo that right and represent their own interests before a

criminal tribunal. That is also their right under the constitutions of this state and this

nation. State v. Reed, 74 Ohio St.3d 534, 535, 660 N.E.2d 456 (1996), citing Faretta v.

California, 422 U.S. 806, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). “If a trial court

denies the right to self-representation, when properly invoked, the denial is per se

reversible error.” State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81,

¶ 32, citing Reed.

       {¶12} When defendants manage their own defense, however, they relinquish, “as a

purely factual matter, many of the traditional benefits associated with the right to

counsel.” Faretta at 834. For this reason, in order to represent themselves, defendants

must “knowingly and intelligently” forgo those relinquished benefits.          Id. at 835.

Although defendants do not need to have the skill and experience of a lawyer to

competently and intelligently choose self-representation, they should be made aware of

the dangers and disadvantages of self-representation, so that the record establishes that

they know what they are doing and their “choice is made with eyes open.” Id.

       {¶13} To establish an effective waiver of the right to counsel, the trial court must

make a sufficient inquiry to determine whether the defendant fully understands and

intelligently relinquishes that right. State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399
(1976), paragraph two of the syllabus. Crim.R. 44(A) also provides that a defendant is

entitled to counsel “unless the defendant, after being fully advised of his right to assigned

counsel, knowingly, intelligently, and voluntarily waives his right to counsel.” The

United States Supreme Court, however, has not prescribed a precise formula or script that

must be read to defendants who indicate that they desire to proceed without counsel.

State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 101.

Instead, to be valid, a waiver of the right to counsel

       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.

State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 40.

       {¶14} Further, Crim.R. 44 provides:

       (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.

       {¶15} Therefore, pursuant to Crim.R. 44 and 22, the waiver of counsel must take
place in open court, must be recorded, and in cases of serious offenses, the waiver must

be in writing. See State v. Mascaro, 81 Ohio App.3d 214, 216, 610 N.E.2d 1031 (9th

Dist.1991); Garfield Hts. v. Brewer, 17 Ohio App.3d 216, 217, 479 N.E.2d 309 (8th

Dist.1984).

        {¶16} A petty offense is defined as “a misdemeanor other than a serious offense.”

Crim.R. 2(D).    A serious offense “means any felony, and any misdemeanor for which

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

2(C).   The two sections of OVI that Orr was charged with were misdemeanors of the

first degree.   R.C. 4511.19(G)(10)(a).    Pursuant to R.C. 2929.21(B)(1), the term of

imprisonment for a misdemeanor of the first degree is “not more than six months.”

Therefore, the OVI charges against Nicholson were both misdemeanor petty offenses and,

thus, governed by Crim.R. 44(B) and (C).

        {¶17} In this case, a visiting judge removed Nicholson’s appointed counsel from

the case and ordered Nicholson to file a motion with the court explaining why he wanted

to represent himself and why he was qualified to do so. Nicholson never filed such

motion. Nonetheless, that did not relieve the trial court of its duty to make a sufficient

inquiry into the matter to determine whether Nicholson fully understood his right to

counsel and knowingly, intelligently, and voluntarily waived that right.

        {¶18} We therefore sustain Nicholson’s first assignment of error, vacate his

convictions, and remand for a new trial where the court must either appoint counsel to

Nicholson or have the proper colloquy with him to ensure that he is voluntarily,
knowingly, and intelligently waiving his right to counsel.      We note, however, that

Nicholson cannot be retried on the offenses for which he was already acquitted:      OVI

due to BAC over .08 under R.C. 4511.19(A)(1)(d) and reckless operation under HHCO

333.09.

                               Sufficiency of the Evidence

       {¶19} Although Nicholson’s second assignment of error (arguing that the trial

court erred by not granting him a continuance) is moot, his third assignment of error

regarding sufficiency of the evidence is not.       Should we find merit in Nicholson’s

sufficiency argument, the state would be barred from retrying him on double jeopardy

grounds.   State v. Freeman, 138 Ohio App.3d 408, 424, 741 N.E.2d 566 (1st Dist.2000),

citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

       {¶20} In his third assignment of error, Nicholson argues that the city did not

present sufficient evidence to convict him “of the generic OVI for ‘driving under the

influence.’”   Specifically, Nicholson argues that the city did not provide sufficient

evidence that he was “appreciably impaired” as a result of alcohol consumption.

       {¶21} When an appellate court reviews a record upon a sufficiency challenge,

“‘the relevant inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.’”        State v. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus.
       {¶22} Nicholson was convicted of R.C. 4511.19(A)(1)(a), which provides that

“[n]o person shall operate any vehicle * * * if, at the time of the operation * * * [t]he

person is under the influence of alcohol, a drug of abuse, or a combination of them.”

       {¶23} In determining whether the police had probable cause to arrest an individual

for OVI, courts consider whether, at the moment of arrest, the police had sufficient

information, derived from a reasonably trustworthy source of facts and circumstances,

sufficient to cause a prudent person to believe that the suspect was driving under the

influence. State v. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d 952 (2000), citing Beck

v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). “In making this

determination, we will examine the ‘totality’ of facts and circumstances surrounding the

arrest.” Id., citing State v. Miller, 117 Ohio App.3d 750, 761, 691 N.E.2d 703 (11th

Dist.1997), and State v. Brandenburg, 41 Ohio App.3d 109, 111, 534 N.E.2d 906 (2d

Dist.1987).

       {¶24} Highland Hills police officer, Ray Hahalas, testified that on April 18, 2013,

he was on Northfield Road in the village of Highland Hills when an “auxiliary” officer

“noticed a motorcycle approaching what appeared to be a high rate of speed.”       Officer

Hahalas stated that radar “confirmed that [Nicholson] was going 82 in a 40.”       Officer

Hahalas activated his lights and stopped the motorcycle.         Nicholson had a female

passenger on the back of the motorcycle.      Officer Hahalas approached Nicholson, and

asked him for his driver’s license.   Officer Hahalas discovered that the license plates on

the motorcycle “came back to a Buckeye Scooters,” but the VIN number “came back to a
female who owned the bike, not Buckeye Scooters.”            Officer Hahalas also discovered

that Nicholson did not have a motorcycle endorsement on his driver’s license.

       {¶25} Upon approaching Nicholson a second time, Officer Hahalas testified that

he smelled “a strong odor of alcohol” coming from Nicholson, but not from the female

passenger. Nicholson told Officer Hahalas that he did not drink, but Nicholson admitted

that he had been drinking “a Chinese cooking wine called Shaoxing.”            Based on the

smell of alcohol, Officer Hahalas asked Nicholson if he would “like to perform any

standardized field sobriety test[s].”   Nicholson replied that he would, but claimed that he

had numerous medical conditions, which he explained is why he drinks the Shaoxing.

Nicholson said that he had a broken foot and other health issues.      Officer Hahalas asked

Nicholson if he still wanted to proceed with the testing; Nicholson replied that “he did

want to proceed.”

       {¶26} Officer Hahalas testified that the first test that he performed was the

horizontal gaze nystagmus (“HGN”).            Officer Hahalas said that he performed all six

tests of the HGN, including checking for equal tracking, checking for lack of smooth

pursuit, and checking for onset of nystagmus at maximum deviation. Officer Hahalas

stated that Nicholson failed all six tests.

       {¶27} Next, Officer Hahalas performed the walk-and-turn test.        Officer Hahalas

said that he gave Nicholson instructions for the test and demonstrated how to perform the

test. Officer Hahalas explained that for this test, Nicholson was supposed to stand with

his right foot in front of his left foot, with his hands down to his side. Officer Hahalas
testified that Nicholson “was unable to do that.” Nicholson “attempted it numerous

times and would break that position and just stand normal.”     Officer Hahalas proceeded

with his instructions, telling Nicholson to “take nine heel to toe steps forward keeping his

hands down at his side, eyes down at his feet counting each step out loud.”         Officer

Hahalas said that he then instructed Nicholson that when he reached his ninth step, he

should “keep his front foot planted, take a series of small steps, turn around, take nine

heel to toe steps back, again, keeping his hands down at his side, eyes down to his feet,

and counting each step out loud.” Officer Hahalas said that Nicholson did not pass the

test.

         {¶28} The third test that Officer Hahalas performed on Nicholson was the one-leg

stand.     Again, Officer Hahalas said that he gave instructions for the test and

demonstrated how to perform the test.        Officer Hahalas explained that for this test,

Nicholson was supposed to raise one leg, whichever one he wanted, “approximately six

inches off of the ground, keep his hands down to his side, look down at his toe, and count

out loud by one thousands.” Officer Hahalas said that Nicholson failed this test as well.



         {¶29} Even though Nicholson stated that he had a broken foot, Officer Hahalas

later observed Nicholson run back to the station when he was leaving because he forgot

items. Officer Hahalas said that Nicholson’s “foot possibly would not be broken.”

         {¶30} Officer Hahalas testified that he placed Nicholson under arrest “based on the

totality of the circumstances and the manner in which he performed the tests.”
         {¶31} Nicholson argues that there was no evidence that his driving was impaired

because of alcohol. But the police officer’s observations of Nicholson during the field

sobriety tests, i.e., that Nicholson failed all three of them, is evidence that Nicholson was

intoxicated. Nicholson is not challenging the admissibility of the field sobriety tests

(which to do so, it must be done in a motion to suppress).1

         {¶32} Further, according to Officer Hahalas’s testimony, Nicholson was traveling

at an excessive rate of speed — 42 m.p.h. over the speed limit.        This factor is one of the

many factors an officer can consider when deciding whether to conduct field sobriety

tests.       State v. Evans, 127 Ohio App.3d 56, 56, 711 N.E.2d 761 (11th Dist.1998). In

this context, however, especially given Nicholson’s extremely high rate of speed on a

motorcycle on Northfield Road, it is also evidence of impairment.                Nicholson also

admitted to Officer Hahalas that he had been drinking a Chinese cooking wine.              These

facts, along with the fact that the officer smelled a strong odor of alcohol emanating from

Nicholson’s person, as well as the fact that Nicholson failed the three field sobriety tests,

amount to sufficient evidence that Nicholson was impaired from alcohol.

         {¶33} Nicholson argues that Officer Hahalas’s testimony regarding his

performance on the field sobriety tests “offers little given that Nicholson advised the



        Nicholson’s appointed counsel filed a motion to suppress. But when Judge Freda held a
         1


hearing on the date that the motion to suppress was scheduled to be heard, she believed — based on
apparent conversations with appointed counsel and the prosecutor — that Nicholson was there that
day to enter a plea. It was at that hearing that Nicholson then told Judge Freda that he wanted to
represent himself. As a result, the motion to suppress that was filed by Nicholson’s appointed
counsel was never heard. There is nothing on the record that indicates this motion was withdrawn.
officer that ‘he had a broken bone in his foot’ and that he had other ‘medical health

problems.’”   This argument, however, goes to manifest weight of the evidence and

whether the officer’s testimony should be believed, not whether there was sufficient

evidence to convict him.

       {¶34} Nicholson’s third assignment of error is overruled.

       {¶35} Judgment reversed. Convictions vacated. This matter is remanded to the

trial court for further proceedings.   We note, however, that Nicholson cannot be retried

on the offenses for which he was acquitted: OVI due to BAC over .08 under R.C.

4511.19(A)(1)(d) and reckless operation under HHCO 333.09.              It is ordered that

appellant recover from appellee the 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   Bedford

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.




MARY J. BOYLE, ADMINISTRATIVE JUDGE

SEAN C. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR
