[Cite as State v. Morrison, 2012-Ohio-2154.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellee    :       Hon. Julie A. Edwards, J.
                                               :
-vs-                                           :
                                               :       Case No. 11-CA-29
DONALD MORRISON                                :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Cambridge
                                                   Municipal Court, Case Nos. 11CRB00080
                                                   and 11TRD000440

JUDGMENT:                                          Reversed and Remanded




DATE OF JUDGMENT ENTRY:                            May 14, 2012

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

WILLIAM H. FERGUSON                                GREGORY W. MEYERS
Law Director                                       Sr. Assistant Public Defender
City of Cambridge                                  250 East Broad Street, Ste. 1400
150 Highland, Ste. 2                               Columbus, OH 43215
Cambridge, OH 43725
[Cite as State v. Morrison, 2012-Ohio-2154.]


Gwin, P.J.

        {¶1}     On January 23, 2011, appellant Donald Morrison was arrested and

charged with obstructing official business, resisting arrest, and speeding after a traffic

stop. His brother Grant Morrison was in the front passenger seat. Donald Morrison and

Grant Morrison were both charged out of this incident.1 He entered pleas of not guilty.

Initially, he asked for and received appointed counsel. At a hearing on May 26, 2011,

his appointed counsel was converted to "standby counsel," and the court allowed

Donald to represent himself. Donald and Grant's cases were consolidated for trial. Both

waived jury trials. Their cases proceeded to a bench trial on August 4, 2011.

        {¶2}     Donald was convicted of obstructing official business, resisting arrest, and

speeding. He was sentenced to serve twenty days in jail on the obstructing charge, with

seventy days suspended for twelve months of unsupervised probation; and ten days

concurrent on the resisting arrest charge.2

                                         ASSIGNMENTS OF ERROR

        {¶3}     Donald raises three assignments of error,

        {¶4}     “I. APPELLANT DONALD MORRISON'S CONSTITUTIONAL RIGHTS

WERE VIOLATED WHEN THE TRIAL COURT, AFTER FIRST APPOINTING

COUNSEL, ALLOWED DONALD TO REPRESENT HIMSELF WITHOUT FIRST

ENSURING THAT HE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVED

HIS RIGHT TO COUNSEL, AND THAT HE DID SO WITH A CONSTITUTIONALLY




        1
          Grant Morrison has filed a separate appeal in Case No. 11CA000030.
        2
          A Statement of the Facts underlying Donald’s original conviction is unnecessary to our
disposition of this appeal. Any facts needed to clarify the issues addressed in Donald’s assignments of
error shall be contained therein.
Guernsey County, Case No. 11-CA-29                                                        3


ADEQUATE UNDERSTANDING OF THE RISKS HE FACED BY REPRESENTING

HIMSELF AT TRIAL.

       {¶5}   “II. APPELLANT DONALD MORRISON'S CONSTITUTIONAL RIGHTS

WERE     VIOLATED       WHEN      THE   TRIAL    COURT      FOUND      HIM   GUILTY     OF

OBSTRUCTING         OFFICIAL     BUSINESS       BASED    ON    EVIDENCE       THAT    WAS

INSUFFICIENT TO SUSTAIN A GUILTY VERDICT, AND WHEN THE GUILTY

FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶6}   “III. APPELLANT DONALD MORRISON'S CONSTITUTIONAL RIGHTS

WERE VIOLATED WHEN THE TRIAL COURT FOUND HIM GUILTY OF RESISTING

ARREST BASED ON EVIDENCE THAT WAS INSUFFICIENT TO SUSTAIN A GUILTY

VERDICT, AND WHEN THE GUILTY FINDING WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.”

                                           ANALYSIS

                                                 I.

       {¶7}   In his first assignment of error, Donald asserts the trial court violated his

right to counsel by failing to obtain a valid waiver of counsel and by failing to advise him

of the dangers of self-representation. We agree.

       {¶8}   The Sixth Amendment to the United States Constitution provides “In all

criminal prosecutions, the accused shall * * * have the Assistance of Counsel for his

defense.” Similarly, the Ohio Constitution provides, “In any trial, in any court, the party

accused shall be allowed to appear and defend in person and with counsel.” Ohio

Constitution, Article I, Section 10.
Guernsey County, Case No. 11-CA-29                                                         4


       {¶9}   However, the United States Supreme Court has also recognized that the

Sixth Amendment right to the assistance of counsel implicitly embodies a “correlative

right to dispense with a lawyer's help.” Adams v. United States ex rel. McCann, 317

U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268(1942). The court clarified this right to proceed

without counsel in the landmark case of Faretta v. California, 422 U.S. 806, 95 S.Ct.

2525, 45 L.Ed.2d 562(1975). “Although not stated in the Amendment in so many words,

the right to self-representation—to make one's own defense personally—is thus

necessarily implied by the structure of the Amendment. The right to defend is given

directly to the accused; for it is he who suffers the consequences if the defense fails.”

(Footnote omitted.) Id. at 819–820, 95 S.Ct. 2525, 45 L.Ed.2d 562.

       {¶10} Likewise, the Ohio Supreme Court has concluded that “a defendant in a

state criminal trial has an independent constitutional right of self-representation and * * *

may proceed to defend himself without counsel when he voluntarily, and knowingly and

intelligently elects to do so.” State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d

399(1976), paragraph one of the syllabus, citing Faretta.

       {¶11} Crim.R. 44 states:

       (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.
Guernsey County, Case No. 11-CA-29                                                          5


       (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.”

       {¶12} Crim.R. 22 provides that “in petty offense cases all waivers of counsel

required by Rule 44(B) shall be recorded.” (Emphasis added.)

       {¶13} “At the very least, then, any waiver of counsel must be made on the record

in open court, and in cases involving serious offenses where the penalty includes

confinement for more than six months, the waiver must also be in writing and filed with

the court.” State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024 ¶

24.

       {¶14} Once the right to counsel is properly waived, trial courts are permitted to

appoint standby counsel to assist the otherwise pro se defendant. The U.S. Supreme

Court first illustrated the idea of “standby counsel,” in a footnote in Faretta v. California,

“Of course, a State may—even over objection by the accused—appoint a ‘standby

counsel’ to aid the accused if and when the accused requests help, and to be available

to represent the accused in the event that termination of the defendant's self-

representation is necessary.” Faretta, 422 U.S. at 834, 95 S.Ct. 2525, 45 L.Ed.2d 562,

fn. 46. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶28.

       {¶15} The Ohio Supreme Court has held that “[n]either the United States

Constitution, the Ohio Constitution nor case law mandates * * * hybrid representation.

See McKaskle v. Wiggins, 465 U.S. 168 [104 S.Ct. 944, 79 L.Ed.2d 122

(1984)]. Although appellant has the right either to appear pro se or to have counsel, he
Guernsey County, Case No. 11-CA-29                                                   6

has no corresponding right to act as co-counsel on his own behalf.” State v.

Thompson (1987), 33 Ohio St.3d 1, 6-7, 514 N.E.2d 407(1987); State v. Martin, ¶32

(reaffirming this principal).

       {¶16} As the Ohio Supreme Court held in State v. Wellman, 37 Ohio St.2d 162,

309 N.E.2d 915(1974), “[p]resuming a waiver of the Sixth Amendment right of an

accused to the assistance of counsel from a silent record is impermissible. The record

must show, or there must be an allegation and evidence which shows, that an accused

was offered counsel but intelligently and understandingly rejected the offer. Anything

less is not waiver. (Carnley v. Cochran, 369 U.S. 506 [82 S.Ct. 884, 8 L.Ed.2d 70],

followed.)” Id. at paragraph two of the syllabus.

       {¶17} In all cases where the right to counsel is waived, the court "must make

sufficient inquiry to determine whether 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. “For a petty offense, voluntary and knowing waiver may

be shown through the court's colloquy with the defendant.” Brooke, supra at ¶ 54.

       {¶18} In Gibson supra, the Ohio Supreme Court held a trial court must provide

sufficient warning to the defendant of the seriousness of the trial and the possible

results it could have for his liberty and life. The Court stated:

               This protecting duty imposes the serious and weighty responsibility

       upon the trial judge of determining whether there is an intelligent and

       competent waiver by the accused. 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
Guernsey County, Case No. 11-CA-29                                                     7


       circumstances of the case before him demand. The fact that 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 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.

       {¶19} Gibson, supra, at 376-377, citing Von Moltke v. Gillies, 332 U.S. 708, 723,

68 S.Ct. 316, 323(1948).

       {¶20} In State v. Martin, supra the Ohio Supreme Court held a defendant must

be adequately advised of the perils of self-representation, stating:

              “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.” [Gibson] at 377,

       74 O.O. 2d 525, 345 N.E. 2d 399, quoting Von Moltke v. Gillies (1948),

       332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309.

       ***

              The trial court cautioned Martin at times that it would be best if

       Martin were represented by counsel (“I would caution you against

       abandoning your lawyers but that's your choice”). But the court did not
Guernsey County, Case No. 11-CA-29                                                   8


      adequately explain the nature of the charges, the statutory offenses

      included within them, the range of allowable punishments, possible

      defenses, mitigation, or other facts essential to a broad understanding of

      the whole matter, per Von Moltke, 332 U.S. at 724, 68 S.Ct. 316, 92 L.Ed.

      309, and Gibson, 45 Ohio St. 2d at 377, 74 O.O. 2d 525, 345 N.E. 2d 399.

      We therefore conclude that Martin was not “made aware of the dangers

      and disadvantages of self-representation' so that the record established

      that ‘he [knew] what he [was] doing and his choice [was] made with eyes

      open.’ Faretta, 422 U.S. at 835, 95 S.Ct. 2525, 45 L.Ed.2d 562, quoting

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

      L.Ed. 268. If the court had properly complied with these requirements and

      had clearly advised Martin that he had no right to be “co-counsel” and that

      his only choices were to proceed pro se or with counsel, Martin may have

      made a different choice.

Martin, supra, ¶40-42.

      {¶21} In State v. Bumphus, 6th Dist. No. E-03-043, 2005-Ohio-536, the Sixth

District Court of Appeals, addressed this issue, holding:

             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.' Gibson, paragraph

      two of the syllabus. ‘To be valid [a defendant's] waiver [of counsel] must

      be made with an apprehension of the nature of the charges, the statutory

      offense included within them, the range of allowable punishments
Guernsey County, Case No. 11-CA-29                                                    9


      thereunder, possible defenses to the charges and circumstances in

      mitigation thereof, and all other facts essential to a broad understanding of

      the whole matter.’ Martin, supra, at ¶ 40, citing Gibson, supra, at 377, 345

      N.E. 2d 399 and quoting Von Moltke v. Gillies (1948), 332 U.S. 708, 723,

      68 S.Ct. 316, 92 L.Ed. 309. ‘A judge can make certain that accused's

      professed waiver of counsel is understandingly and wisely made only from

      a penetrating and comprehensive examination of all of the circumstances

      under which such a plea is tendered.’ Von Moltke, supra, at 724. ‘The

      determination of whether there has been an intelligent waiver of right to

      counsel must depend, in each case, upon the particular facts and

      circumstances    surrounding    that   case,   including   the   background,

      experience, and conduct of the accused.’ Johnson v. Zerbst (1938), 304

      U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461. A sketchy or minimal inquiry

      touching upon only some of the above-enumerated factors will not

      adequately establish an effective waiver of counsel. State v. McQueen

      (1997), 124 Ohio App.3d 444, 447, 706 N.E.2d 423.

Bumphus, ¶ 13.

      {¶22} Similarly, the Ninth District held in State v. Yeager, 9th Dist. No. 21510,

2005-Ohio-4932:

             However, ‘[c]ourts are to indulge every reasonable presumption

      against the waiver of a fundamental constitutional right including the right

      to be represented by counsel.’ (Citations omitted.) State v. Dyer (1996),

      117 Ohio App.3d 92, 95, 689 N.E .2d 1034. Accordingly, ‘a valid waiver
Guernsey County, Case No. 11-CA-29                                                    10


     affirmatively must appear in the record, and the State bears the burden of

     overcoming the presumption against a valid waiver.’ State v. Martin

     (“Martin I ”), 8th Dist. No. 80198, 2003-Ohio-1499, at ¶ 8, citing Dyer, 117

     Ohio App.3d at 95, 689 N.E.2d 1034. ‘ 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.’ Gibson, 45 Ohio St.2d at paragraph two of the

     syllabus.

           In determining the adequacy of the trial court's inquiry in the context

     of a defendant's waiver of counsel, this Court reviews the totality of the

     circumstances. State v. Ragle, 9th Dist. No. 22137, 2005-Ohio-590, at ¶

     12. In assuring that a waiver of counsel is made knowingly, voluntarily,

     and intelligently, a trial court should advise the defendant of the dangers

     and disadvantages of self representation. See Gibson, 45 Ohio St. 2d at

     377, 345 N.E. 2d 399. See, also, Faretta, 422 U .S. at 835; State v. Weiss

     (1993), 92 Ohio App.3d 681, 686, 637 N .E.2d 47. While no one factor is

     determinative, the trial court should advise the defendant of the nature of

     the charges and the range of allowable punishments, and, in addition,

     advise the defendant of the possible defenses to the charges and

     applicable mitigating circumstances. See Gibson, 45 Ohio St. 2d at 377,

     345 N.E. 2d 399, citing Von Moltke v. Gillies (1948), 332 U.S. 708, 723, 68

     S.Ct. 316, 92 L.Ed. 309. However, this Court has held that the trial court's

     discussion of possible defenses and mitigating circumstances need not be
Guernsey County, Case No. 11-CA-29                                                     11

      fact specific. State v. Trikilis, 9th Dist. Nos. 04CA0096-M & 04CA0097-M,

      2005-Ohio-4266, at ¶ 13, citing Ragle at ¶ 12. ‘[A] broader discussion of

      defenses and mitigating circumstances as applicable to the pending

      charges is sufficient.’ Trikilis at ¶ 13. In addition, a court may consider

      various other factors, including the defendant's age, education, and legal

      experience in determining that a waiver of counsel is made knowingly,

      voluntarily, and intelligently. Id., citing State v. Doane (1990), 69 Ohio

      App.3d 638, 647, 591 N.E.2d 735.

Yeager, ¶ 7-8.

      {¶23} Upon our review of the May 26, 2011 exchange at which the trial court

decided to allow Donald to represent himself, shifting his appointed counsel to "standby"

status, we find no evidence demonstrating that (1) Donald knowingly, intelligently, and

voluntarily waived his right to counsel; or (2) that the trial court advised him of the

dangers of self-representation in the context of the nature of the charges, the penalties,

or potential defenses. As discussed in our analysis of Ohio case law, the trial court

should have advised Donald of the nature of the charges and the range of allowable

punishments, and in addition, the possible defenses to the charges and applicable

mitigating circumstances, prior to accepting Donald’s waiver of counsel.

      {¶24} Donald’s first assignment of error is sustained.

                                             II. & III

      {¶25} Based upon our analysis and disposition of Donald's first assignment of

error, we find appellant's second and third assignments of error premature.
Guernsey County, Case No. 11-CA-29                                              12


                                         CONCLUSION

       {¶26} Because the trial court did not adequately determine that Donald

knowingly, intelligently, and voluntarily waived his right to counsel and failed to

adequately warn Donald of the dangers and disadvantages of self-representation,

Donald’s first assignment of error is sustained.

       {¶27} Accordingly, the judgment of the Cambridge Municipal Court, Guernsey

County, Ohio is reversed, and the cause remanded to the trial court for further

proceedings in accordance with the law and this opinion.

By Gwin, P.J.,

Farmer, J., and

Edwards, J., concur



                                              _________________________________
                                              HON. W. SCOTT GWIN


                                              _________________________________
                                              HON. SHEILA G. FARMER


                                              _________________________________
                                              HON. JULIE A. EDWARDS




WSG:clw 0501
[Cite as State v. Morrison, 2012-Ohio-2154.]


             IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
DONALD MORRISON                                  :
                                                 :
                                                 :
                        Defendant-Appellant      :       CASE NO. 11-CA-29




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Cambridge Municipal Court, Guernsey County, Ohio is reversed, and the cause

remanded to the trial court for further proceedings in accordance with the law and this

opinion. Costs to appellee.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN


                                                     _________________________________
                                                     HON. SHEILA G. FARMER


                                                     _________________________________
                                                     HON. JULIE A. EDWARDS
