[Cite as Berea v. Ferich, 2013-Ohio-3248.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99258


                                      CITY OF BEREA
                                               PLAINTIFF-APPELLEE

                                                 vs.

                                       MARK FERICH
                                               DEFENDANT-APPELLANT



                                    JUDGMENT:
                              REVERSED AND REMANDED


                                       Criminal Appeal from the
                                        Berea Municipal Court
                                       Case No. 12 TRD 02122

             BEFORE:           Blackmon, J., Rocco, P.J., and E.T. Gallagher, J.

             RELEASED AND JOURNALIZED:                     July 25, 2013
                                   -i-




ATTORNEYS FOR APPELLANT

Joseph C. Patituce
Megan M. Patituce
Jennifer Scott
Catherine R. Meehan
Patituce & Scott, L.L.C.
26777 Lorain Road, Suite 708
North Olmsted, Ohio 44070

ATTORNEY FOR APPELLEE

James N. Walters, III
Prosecuting Attorney
City of Berea
31 East Bridge Street, Suite 302
Berea, Ohio 44017
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Mark Ferich appeals his convictions following a bench trial in

Berea Municipal Court, and assigns the following errors for our review:

       I. The trial court erred when it denied appellant his constitutional right
       to the effective assistance of counsel. (TR. 5)

       II. The trial court erred when it denied appellant his constitutional
       right to compulsory process. (TR. NA.)

       III. The trial court erred when it denied appellant his right to a
       closing argument. (TR. 128)

       IV. Appellant was denied due process of law where his conviction was
       not supported by legally sufficient evidence. (TR. NA)

       V. Appellant was denied due process of law where his conviction was
       against the manifest weight of the evidence.

       {¶2} Having reviewed the record and pertinent law, we reverse Ferich’s

convictions and remand for a new trial. The apposite facts follow.

       {¶3} On May 23, 2012, the city of Berea charged Ferich with one count of failure

to stop after an accident, a first degree misdemeanor, as well as one count of driving left

of center, a minor misdemeanor. Ferich pleaded not guilty at the arraignment. On June

26, 2012, the matter proceeded to a bench trial.

       {¶4} Prior to trial, the trial court stated the charges, the maximum penalties, and

indicated that it was his understanding that Ferich had decided to proceed without an
attorney. The trial court advised Ferich that he could hire an attorney, or if he could not

afford one, the court would appoint one at no cost.

       {¶5} However, Ferich indicated that he did not think an attorney was necessary.

Thereafter, Ferich executed a written waiver and proceeded pro se. After the testimony of

five witnesses for the city of Berea, as well as that of Ferich, the trial court found him

guilty of both charges.

       {¶6} On November 1, 2012, the trial court fined Ferich $100, plus court cost,

imposed a six-month driver’s license suspension, and placed him on one year of

probation. Ferich now appeals.

                                   Waiver of Counsel

       {¶7} In the first assigned error, Ferich argues he was denied the effective

assistance of counsel because the trial court erred in granting his request to represent

himself. Ferich contends his waiver of his constitutional right to counsel was not made

knowingly and intelligently.

       {¶8} Although a defendant may eloquently express a desire to represent himself,

a trial court must still satisfy certain parameters to ensure that the defendant’s waiver of

the constitutional right to counsel is made knowingly, intelligently, and voluntarily.

State v. Moore, 8th Dist. No. 95106, 2012-Ohio-1958, 970 N.E.2d 1098, ¶ 43.

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

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. For a petty offense, voluntary and knowing waiver may

be shown through the court’s colloquy with the defendant. State v. Brooke, 113 Ohio

St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024 ¶ 54.

       {¶10} 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 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. Gibson, supra, at 376-377, citing Von Moltke v. Gillies,

       332 U.S. 708, 723, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948).
       {¶11} In State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227,

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,
       345 N.E. 2d 399, quoting Von Moltke v. Gillies (1948), 332 U.S. 708,
       723, 68 S.Ct. 316, 92 L.Ed. 309.

       {¶12} 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 the 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 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, 304 U.S. 458, 464, 58 S.Ct.
       1019, 82 L.Ed. 1461 (1938). 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, 124 Ohio
       App.3d 444, 447, 706 N.E.2d 423 (1997).
Bumphus at ¶ 13.

      {¶13} 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,
      117 Ohio App.3d 92, 95, 689 N.E .2d 1034 (1996). Accordingly, “a valid
      waiver 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 the 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, 92 Ohio App.3d 681, 686, 637 N.E.2d 47 (1993). 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, 332 U.S. 708, 723, 68
      S.Ct. 316, 92 L.Ed. 309 (1948). However, this Court has held that the
      trial court’s discussion of possible defenses and mitigating
      circumstances need not be 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, 69 Ohio App.3d 638, 647,
      591 N.E.2d 735 (1990), 7 Anderson’s Ohio App. Cas. 503.
Yeager at ¶ 7-8.

       {¶14} In State v. Buchanan, 8th Dist. No. 80098, 2003-Ohio-6851, ¶ 15-18, we,

too, discussed the trial court’s duty of ensuring that the defendant’s waiver of counsel is

knowingly, intelligently, and voluntarily made:

       The Sixth Amendment, as made applicable to the states by the
       Fourteenth Amendment, 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. Gibson supra, 45 Ohio St.2d 366, 345 N.E.2d 399(1976),
       paragraph one of the syllabus, citing Faretta, 422 U.S. 806, 95 S.Ct.
       2525, 45 L.Ed.2d 562 (1975). * * * “In order to establish an effective
       waiver of right to counsel, the trial court must make sufficient inquiry
       to determine whether a defendant fully understands and intelligently
       relinquishes that right.” Gibson, supra, paragraph two of the syllabus.

      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. [State v.]
      Martin, [8th Dist. No. 80198, 2003-Ohio-1499], supra, citing State v.
      Jackson (2001), 145 Ohio App.3d 223, 227, 762 N.E.2d 438 [8th Dist.].
      Given the presumption against waiving a constitutional right, the trial
      court must ensure the defendant is aware of “the dangers and
      disadvantages of self-representation” and that he is making the
      decision with his “eyes open.” Faretta, supra.
      In determining the sufficiency of the trial court’s inquiry in the context
      of the defendant’s waiver of counsel, the Gibson court applied the test
      set forth in Von Moltke v. Gillies (1948), 332 U.S. 708, 723, 68 S.Ct. 316,
      92 L.Ed.309, as follows:

      * * * To be valid such waiver must be made with an apprehension 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 matter.

      {¶15} We have underscored this duty in several decisions. See State v. Smith, 8th

Dist. No. 98093, 2012-Ohio-5420; Mayfield Hts. v. Aziz-Hakim, 8th Dist. No. 98176,

2012-Ohio-5890; and Cleveland v. Anderson, 8th Dist. No. 97787, 2013-Ohio-165.

      {¶16} In the instant case, the following exchange took place after the trial court

opened the proceedings by stating the charges and maximum punishment:

      The Court: We are going to have a trial today and the trial carries with it
                      certain formalities of presentation and that sort of thing,
                      and it’s been my understanding — we have discussed this
                      matter before and you have decided, it’s my
                      understanding, to proceed without an attorney, is that
                      correct?

      Mr. Ferich: Yes, your Honor.

      The Court: Now, you understand that you have the right to have time to get
                       your own lawyer if you can pay for it, and if you’re
                       indigent and can’t pay for it, the Court would provide and
                       attorney to you at no cost to you. My understanding
                       under both of those is that it’s your desire to go forward
                       without an attorney and intend to waive your right to an
                       attorney and proceed today without one?

      Mr. Ferich: Yes, sir, I don’t feel I need one, I really don’t.

      The Court: Well, that’s entirely your decision, but I need to go through those
                        formalities. If you could have him sign a waiver there for
                        me, please? And it’s Ferich, right?

      Mr. Ferich: Yes.

      The Court: And as we go through the trial today, obviously, as I indicated
                      before, there are certain technicalities of presentation, of
                      organization, and that sort of thing which we will adhere
                      to. I will give you some leeway as a layperson. Okay. I
                            will give you some leeway, but obviously there’s certain
                            circumstances of which you don’t get any benefit. You
                            know, just like any other attorney would not get any
                            benefit, you would not either. * * *

       {¶17} Here, this brief exchange cannot be reasonably considered sufficient to

demonstrate that Ferich’s decision to represent himself was made knowingly, voluntarily,

and intelligently. As previously noted, the trial court stated the charges and maximum

penalties. However, upon our review of the record, we find no evidence demonstrating

that the trial court advised Ferich 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 Ferich of the range of

allowable punishments, the possible defenses to the charges and applicable mitigating

circumstances, prior to accepting Ferich’s waiver of counsel.

       {¶18} Additionally, although, the trial court advised Ferich that he would be held

to the same standards as an attorney and mentioned that there were certain formalities and

technicalities associated with a trial, the trial court never explained trial procedures, nor

questioned Ferich to ascertain his understanding of trial procedures. Our review of the

transcript reveals that the trial court demonstrated great patience in dealing with Ferich,

who struggled throughout the trial.

       {¶19} Further, while we recognize that 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, we find that the trial court’s inquiry in this matter failed to ensure that Ferich

was knowingly, intelligently, and voluntarily waiving his right to counsel.
       {¶20} Finally, although there is a passing comment by the trial court that the

matter had been discussed before, there is nothing in the record that reflects any pretrial

discussions of Ferich’s desire to represent himself at trial. When confronted with the

waiver of a constitutional, statutory, or other substantial or fundamental right, such

waiver must affirmatively appear in the record. Garfield Hts. v. Brewer, 17 Ohio App.3d

216, 479 N.E.2d 309, (8th Dist.1984).

       {¶21} At oral argument in the matter, the city’s prosecutor attempted to assure us

that, prior to trial, he had extensive discussions with Ferich about his desire to waive his

right to counsel. However, regardless of the purported discussion, no Ohio court has

held that the duty of ensuring that a defendant was knowingly, intelligently, and

voluntarily waiving his right to counsel, was the province of any other than the trial

court’s.

       {¶22} In this instance, the on-the-record discussion was insufficient to ensure that

Ferich knowingly, intelligently, and voluntarily waived his right to counsel.

Accordingly, we sustain the first assigned error, reverse Ferich’s convictions, and remand

the matter for a new trial.

       {¶23} Our disposition of the first assigned error, renders the remaining assigned

errors moot. App.R. 12(A)(1)(c).

       {¶24} Judgment is reversed, and the matter is remanded for a new trial.

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

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate be sent to Berea 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.



PATRICIA ANN BLACKMON, JUDGE

EILEEN T. GALLAGHER, J., CONCURS;
KENNETH A. ROCCO, P.J., DISSENTS
(SEE ATTACHED DISSENTING OPINION.)



KENNETH A. ROCCO, P.J., DISSENTING:

       {¶25} I respectfully dissent because I believe that the majority opinion has

misinterpreted the applicable law. The majority opinion thus places an unwarranted

burden upon municipal courts in dealing with misdemeanor offenses. I conclude from

the record in this case in light of the Ohio Supreme Court’s decision in State v. Brooke,

113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, that Ferich’s waiver of his right

to counsel was valid. Furthermore, I would address Ferich’s other assignments of error,

find that they all lack merit, and thus would affirm his convictions.

       {¶26} According to the transcript, the matter of Ferich’s decision to represent

himself had been discussed on prior occasions, was discussed on the record, and Ferich

signed in open court a written waiver of his right to counsel. As the majority opinion

mentions but neither directly faces nor distinguishes, in cases of petty offenses, the Ohio
Supreme Court has found such a procedure to be adequate. Id. at ¶ 39. Other courts,

including this one, have followed that precedent. State v. Taylor, 8th Dist. No. 90674,

2008-Ohio-5255; see also State v. Caudill, 10th Dist. No. 10AP-90, 2010-Ohio-5965;

State v. Wells, 7th Dist. No. 09-BE-12, 2009-Ohio-6803; State v. Wise, 5th Dist. No.

2008-CA-9, 2008-Ohio-7003; compare Cleveland v. Anderson, 8th Dist. No. 97787,

2013-Ohio-165 (failed to mention Brooke); Parma v. Battaia, 8th Dist. No. 96569,

2012-Ohio-173 (same); Shaker Hts, v. Hunte, 145 Ohio App.3d 150, 762 N.E.2d 384 (8th

Dist. 2001) (decided prior to Brooke).

       {¶27} Ferich has not seen fit for purposes of his appeal to request the municipal

court to produce either: (1) transcripts of the other conversations between him and the

court, (2) an App.R. 9(C) statement concerning those conversations, or (3) the written

waiver. Because Ferich’s waiver of his right to counsel was made in open court and was

recorded, this court presumes regularity. Brooke at ¶ 47; compare Garfield Heights v.

Brewer, 17 Ohio App.3d 216, 479 N.E.2d 309 (1984).

       {¶28} Despite the applicability of Brooke to this case, the majority opinion quotes

at great length from case law that either was decided before Brooke, ignored Brooke, or

relates to defendants who were charged with felony offenses. The Brooke court noted at

¶ 13, however, that “[t]here is a distinction” made between “serious” and “petty”

offenses. Except for Brooke, therefore, the authorities cited in the majority opinion are

inapposite to the facts presented in this case.
       {¶29} The Ohio Supreme Court often has made distinctions, as it did in Brooke, in

the duties of a court with respect to the level of an offense. See, e.g., State v. Watkins, 99

Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635. For instance, in discussing what

information a court must impart in order to find that a change of plea is entered in a

knowing, voluntary, and intelligent manner, the Watkins court explained:

              A judge’s duty to a defendant before accepting his guilty or no
       contest plea is graduated according to the seriousness of the crime with
       which the defendant is charged. Crim.R. 11 distinguishes between “pleas of
       guilty and no contest in felony cases” (Crim.R. 11[C]), “misdemeanor cases
       involving serious offenses” (Crim.R. 11[D]), and “misdemeanor cases
       involving petty offenses[”] (Crim.R. 11[E]). The requirements placed upon
       a court take steady steps that culminate in Crim.R. 11(C).

       ***

              For felony defendants, and only felony defendants, Crim.R.
       11(C)(2)(c) adds something extra and separate -- the judge must also inform
       the defendant of all the rights attendant to the trial that he is foregoing.
       Crim.R. 11(C)(2)(c) * * * is a separate part of the statute spelling out
       additional requirements in felony cases that are not required in
       misdemeanor cases. If Crim.R. 11(C)(2)(c) were merely defining what it
       means to instruct a defendant as to the effect of his plea, similar language
       would have been included in Crim.R. 11(D) and (E). That language is
       missing in the rules because those protections are not required for
       misdemeanor defendants. (Emphasis added.)


       {¶30} In light of the distinction, the majority opinion imposes too much of a

burden upon municipal courts. Consequently, I would overrule Ferich’s first assignment

of error.

       {¶31} Ferich’s second assignment of error is, to me, similarly unpersuasive.

Although he asserts the court failed to inform him of his right to compulsory process, his
comments in the transcript indicate only that, even as the proceeding commenced, he was

unsure if he required any other witnesses than the ones the city would present, and that he

may have had second thoughts as the trial proceeded. Because the same problem of an

inadequate record prevents this court from conducting an adequate review of his

assertion, Ferich’s second assignment of error also should be overruled.

       {¶32} Ferich asserts in his third assignment of error that the municipal court

refused to permit him to present a closing argument. The transcript of trial, however,

reflects that after a full day, the court simply suggested that a final argument from each

party was a formality that could be skipped.          Because Ferich was not under any

compulsion to agree, this assignment of error also should be overruled.

       {¶33} Ferich’s fourth and fifth assignments of error challenge the sufficiency and

the weight of the evidence to support his conviction for the offense of failure to stop after

an accident. As to sufficiency, the evidence must be viewed in a light most favorable to

the prosecution. The city’s witnesses described the accident as a shocking encounter that

created a good deal of noise, not only from the crunching and smashing of the victim’s

car, but from the sounding of several car horns as Ferich completed his turn. From his

questions of the city’s witnesses, it is clear that Ferich’s theory of his defense was that the

victim was attempting to cut the corner and beat the truck onto Bagley Road, but failed.

Either way, the sounds must have alerted Ferich that an accident had occurred. Rather

than pulling over to investigate, however, he continued on his course.              Sufficient

evidence was presented to support Ferich’s conviction for failure to stop after an accident.
 State v. Simon, 5th Dist. No. 2012CA00152, 2013-Ohio-2067. Therefore, his fourth

assignment of error should be overruled.

       {¶34}   The weight of the evidence also supports his conviction.        The city’s

witnesses all presented testimony that was consistent with the statements they provided to

the police and that corroborated each other’s version of the accident. Ferich admitted

feeling a “bump” as he entered the turn, and also admitted he nevertheless continued on

his way.    Otherwise, as a witness himself, Ferich’s testimony was inconsistent.

Although the evidence proved there was only one right-turn lane, and Ferich admitted

seeing the victim’s car in the turning lane as he made the turn, Ferich nevertheless

maintained that he himself was in the turning lane.

       {¶35} Based on the foregoing, I would overrule all of Ferich’s assignments of

error and affirm his conviction.
