[Cite as State v. Clemons, 2012-Ohio-2127.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              DEFIANCE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 4-11-23

        v.

ROMELL CLEMONS,                                         OPINION

        DEFENDANT-APPELLANT.




                Appeal from Defiance County Common Pleas Court
                           Trial Court No. 04CR08879

                       Judgment Reversed and Cause Remanded

                             Date of Decision: May 14, 2012




APPEARANCES:

        Stephen P. Hardwick for Appellant

        Morris J. Murphy and Russell R. Herman for Appellee
Case No. 4-11-23


WILLAMOWSKI, J.

         {¶1} Defendant-appellant Romell Clemons (“Clemons”) brings this appeal

from the judgment of the Court of Common Pleas of Defiance County finding him

to be a sexual predator. For the reasons set forth below, the judgment is reversed.

         {¶2} On September 3, 2004, Clemons entered no contest pleas to four

counts of unlawful sexual conduct with a minor between the ages of 13 and

fifteen, two counts of sexual battery, and one count of having a weapon under

disability. The trial court sentenced Clemons to a cumulative term of nine years in

prison on September 14, 2004. On August 30, 2011, a hearing was held on

Clemons’ motion for judicial release and a notification of post release control. At

that time, the trial court also held a sex offender classification hearing. Clemons

was not represented by counsel at the combined hearing. At the conclusion of the

hearing, the trial court advised Clemons that he was subject to a mandatory period

of five years post release control, found him to be a sexual predator and granted

his motion for judicial release.       Clemons appeals from the trial court’s

determination that he is a sexual predator and raises the following assignments of

error.

                            First Assignment of Error

         The trial court erred by holding a resentencing hearing and a
         sexual predator hearing without either appointing counsel or
         obtaining a knowing, intelligent, and voluntary waiver of
         counsel.

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Case No. 4-11-23



                          Second Assignment of Error

       The trial court erred by making a sexual predator determination
       without providing advance notice to [Clemons].

                           Third Assignment of Error

       The trial court erred by classifying [Clemons] as a sexual
       predator without any statutory authority.

       {¶3} In the first assignment of error, Clemons alleges that the trial court

erred by holding a resentencing hearing and a sexual offender classification

hearing without counsel or a valid waiver of counsel. Post-release control is a part

of the offender’s sentence. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238.

       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.

Crim.R. 44(A). The sentence is a part of the proceedings to which counsel is

required to be assigned by the rule. When a trial court fails to comply with the

requirements of the rule and assign counsel for a resentencing hearing without

obtaining a valid waiver of counsel, the trial court has erred. State v. Webb, 177

Ohio App.3d 289, 2008-Ohio-3719 (2d Dist.).

       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.


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Case No. 4-11-23


Crim.R. 44(C).

      “[T]o 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.” Gibson at paragraph two of the syllabus. In order for the
      defendant to “ ‘competently and intelligently * * * choose self-
      representation, he should be 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.” ’ ” Petaway at ¶ 9, quoting **331 Faretta at
      835, 95 S.Ct. 2525, 45 L.Ed.2d 562, quoting Adams v. United
      States ex rel. McCann (1942), 317 U.S. 269, 279, 63 S.Ct. 236, 87
      L.Ed. 268.

State v. Thompson, 180 Ohio App.3d 714, 2009-Ohio-185, ¶ 7 (3d Dist.).

      {¶4} A review of the record indicates that the trial court recognized that

Clemons lacked counsel at the beginning of the hearing. Aug. 30, 2011 Hearing,

Tr. 2. The trial court then immediately advised Clemons of his post-release

control conditions. Tr. 2-3. At no time prior to this did the trial court ask

Clemons if he would like an attorney. The only time the trial court addressed the

lack of counsel was before beginning the sexual offender classification hearing.

      The Court: Since your crime was so long ago, you’re under that
      old, old classification scheme and – I realize you filed your
      motion for judicial release without benefit of counsel. You
      would have the right to a lawyer in connection with that
      classification determination.

      The Defendant: Okay.

      The Court: Do you want a lawyer in connection with that?

      The Defendant: No.

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Case No. 4-11-23



Tr. 17-18.    The trial court then proceeded to make the classification.        No

additional discussion concerning the waiver occurred.        No written waiver of

counsel, as required by Criminal Rule 44(C), appears in the record. The above

discussion is not a valid waiver of counsel. Without a valid waiver of counsel, the

trial court erred in holding this hearing when Clemons lacked counsel. The first

assignment of error is sustained.

        {¶5} Having found that the trial court erred in not obtaining a valid waiver

of counsel before holding the hearing, the remaining assignments of error are

rendered moot as a new hearing will be held. For this reason, we need not address

them.

        {¶6} Having found error prejudicial to Clemons, the judgment of the Court

of Common Pleas of Defiance County is reversed and the matter is remanded for

further proceedings.

                                                           Judgment Reversed and
                                                                Cause Remanded

SHAW, P.J. and ROGERS, J., concur.

/jlr




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