[Cite as State v. Ross, 2017-Ohio-709.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2016-T-0016
        - vs -                                  :

DENNIS R. ROSS,                                 :

                 Defendant-Appellant.           :


Criminal Appeal from the Girard Municipal Court, Case No. 2015 CRB 00226.

Judgment: Affirmed.


Michael E. Bloom, Girard City Prosecutor, Girard Municipal Court, 100 North Main
Street, Girard, OH 44420 (For Plaintiff-Appellee).

Rhys Brendan Cartwright-Jones, 42 North Phelps Street, Youngstown, OH 44503 (For
Defendant-Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Appellant, Dennis R. Ross, appeals his conviction for passing bad checks,

R.C. 2913.11(B), a misdemeanor of the first degree. Mr. Ross’ conviction followed a

bench trial in the Girard Municipal Court on September 3, 2015. Mr. Ross did not retain

counsel and prior to trial the court had the following conversation with Ross.

        {¶2}     “The Court: Mr. Ross, I understand you’re prepared to go forward with the

trial at this time.

        {¶3}     “Ross: Yes, sir.
        {¶4}   “The Court: All right. The prosecutor is prepared to go forward at this

time?

        {¶5}   “Mr. Bloom: We are, your Honor.

        {¶6}   “The Court: All right. We’re going to go ahead and go forward with the

trial. Since you do not have an attorney, just so you understand the procedure, the

prosecutor is going to go a head and go first. He’s going to present his case. When

he’s done presenting his case, you’ll have an opportunity to present yours. Do you

have any questions?

        {¶7}   “Ross: No, sir.”

        {¶8}   The first witness to testify at trial was Rhonda Kohn, the office manager for

Vienna Auto Repair. Ms. Kohn testified that Ross was a customer on January 14, 2015

when Vienna Auto Repair repaired and replaced the right front wheel bearing and axle

joint on Ross’ 2004 Dodge 250 pickup truck. According to Ms. Kohn, Ross paid the

$404.44 bill for the repair with a personal check. When Ms. Kohn presented the check

to the bank a few weeks later it was returned for non-sufficient funds.

        {¶9}   Ms. Kohn testified that she informed Ross about the non-sufficient funds

and that he (Ross) stated that he would be in to take care of it. Ms. Kohn also identified

a copy of Ross’ bill that shows a notation stating: Called 2/10/15 will stop in to pay on

2/11/15. A copy of the check showing that it had been returned for non-sufficient funds

was also identified by Ms. Kohn. These exhibits were entered into evidence without

objection. Mr. Ross did not cross examine Ms. Kohn.

        {¶10} Mr. Ross then took the stand to testify in his own defense. Ross stated

that two days after he had his truck repaired at Vienna Auto Repair the right front wheel




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of his truck came off while he was driving, causing an accident that damaged his truck

and another vehicle. Ross testified that the mechanic who looked at his truck after the

wheel fell off told Ross that whoever had made the repair had failed to put the cotter pin

in the bolt that holds the wheel hub onto the truck.

       {¶11} Mr. Ross then testified that he called Vienna Auto Repair on January 18,

2015, and told the mechanic that he was issuing a stop payment on the check due to

the alleged defective repair. Ross also stated he told the mechanic that this matter

would proceed through a civil matter in court due to the accident. Ross also testified

that he had never spoken to Ms. Kohn on the phone regarding his check being returned

for non-sufficient funds.

       {¶12} During cross examination the prosecutor asked the court to take judicial

notice that January 18, 2015 was a Sunday. On cross-examination Ross admitted that

he did not bring a copy of the crash report caused by the alleged defective repair. Ross

also admitted that he did not have a copy of the stop-payment order with him at court.

       {¶13} The prosecutor then called Sergeant Michael Sheehy of the Vienna

Township Police Department. Sergeant Sheehy testified that he spoke to Ross on the

phone regarding the dishonored check on February 26, 2015. The prosecutor then

asked Sergeant Sheehy if, hearing Ross’ voice in court, he had any reason to believe

that his phone call was not with Ross: Sergeant Sheehy answered “no.”

       {¶14} Asked what Ross told him during the phone conversation, Sergeant

Sheehy testified that Ross told him that his (Ross’) bank accounts were seized by the

IRS and that was why the check came back indicating non-sufficient funds. Mr. Ross

cross examined Sergeant Sheehy and asked how the sergeant could be sure that it was




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Ross that he spoke to on the phone. Sergeant Sheehy answered that Ross’ voice

sounded the same as it did on the phone. Sergeant Sheehy also added that Ross, in

person, admitted to talking to the sergeant on the phone during a pretrial in the case

with another prosecutor.

      {¶15} Other than denying that he had ever made such an admission, Ross had

no further questions of the sergeant. The trial then concluded. The trial court found

Ross guilty of passing a bad check and passed the matter for sentencing.             At

sentencing Ross was fined $500 with $500 of the fine suspended; he was sentenced to

30 days in jail with 30 days suspended; and placed on six months non-reporting

probation. Mr. Ross was also ordered to pay $403 in restitution.

      {¶16} Mr. Ross timely appeals and raises the following assignments of error:

      {¶17} “[1.] The trial court erred in proceeding to trial without a valid counsel

waiver, given that Ross had no attorney.

      {¶18} “[2.] The trial court erred in entering a conviction without sufficient

evidence to do so.”

      {¶19} Under the first assignment of error Ross argues that the trial court erred

by allowing him to proceed with his defense pro se without first inquiring whether his

waiver of that right was made knowingly and intelligently.

      {¶20} “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.” State v. Gibson, 45 Ohio St.2d 366, paragraph one of the syllabus




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(1976), citing Faretta v. California, 422 U.S. 806 (1975). (emphasis added). “Absent a

knowing and intelligent waiver, no person may be imprisoned for any offense, whether

classified as petty, misdemeanor, or felony, unless he was represented by counsel at

his trial.” State v. Wellman, 37 Ohio St.2d 162, paragraph one of the syllabus (1974),

citing Argersinger v. Hamlin, 407 U.S. 25 (1972). (emphasis added).

      {¶21} “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 366, paragraph two of the

syllabus. “Presuming 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 a

waiver.” Wellman, 37 Ohio St.2d 162, paragraph two of the syllabus, citing Carnley v.

Cochran, 369 U.S. 506 (1962).

      {¶22} Pursuant to Crim.R. 44(C), “[w]aiver of counsel shall be in open court and

the advice and waiver shall be recorded as provided in Rule 22.” Crim.R. 22 provides

that waiver of counsel “may be recorded in shorthand, or stenotype, or by any other

adequate mechanical, electronic or video recording device.”

      {¶23} This court has recognized that “a trial court is obligated to engage in a

dialog with the defendant which will inform her of the nature of the charged offenses,

any ‘included’ offenses, the range of possible punishments, any possible defenses, and

any other facts which are essential for a total understanding of the situation.” State v.

Mogul, 11th Dist. Trumbull No. 2003-T-0178, 2006-Ohio-1873, ¶20.




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      {¶24} In this matter the trial court did not engage in any dialog with Ross

regarding the nature of the charges against him, the possible sentence, or any other

information that would inform Ross “of the inherent difficulties in attempting to represent

[him]self throughout a criminal case.” Id. The trial court’s dialog with Ross was limited

to an acknowledgement that Ross did not have legal representation and an explanation

that the prosecutor presents his case first. This dialog is insufficient to establish that

Ross’ decision to proceed without an attorney was made knowingly and intelligently.

State v. Boughner (Dec. 17, 1999), 11th Dist. No. 98-G-2161, at *8, 1999 WL 1297606

(“a waiver of counsel is knowing, intelligent, and voluntary only when the defendant is

made aware of the dangers and disadvantages of self-representation such that the

record establishes that the defendant knowingly made the choice with his eyes wide

open”).

      {¶25} Where a defendant has been convicted of a petty offense without counsel,

and absent a valid waiver of counsel, any jail sentence must be vacated although the

conviction itself still stands. Mogul, 2006-Ohio-1873, at ¶26. The reason for this is that

“the right to appointed counsel under the Sixth and Fourteenth Amendments in state

criminal proceedings is limited to cases that lead to actual imprisonment.

Consequently, by vacating any term of confinement imposed on an unrepresented

misdemeanant, any potential violation of the constitutional right to counsel is thereby

eradicated. In other words, if the jail time is thrown out on appeal, then there is no

cognizable violation of the Sixth Amendment right to counsel because, as the Supreme

Court of Ohio has held, ‘uncounseled misdemeanor convictions are constitutionally valid




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if the offender is not actually incarcerated.’” Boughner, *10, 1999 WL 1297606

(emphasis sic), citing State v. Brandon, 45 Ohio St.3d 85, 86 (1989).

       {¶26} In the present matter Ross was sentenced to 30 days in jail with 30 days

being suspended; he was also placed on six months non-reporting probation that

terminated on July 1, 2016. Inasmuch as Ross was not incarcerated his conviction is

constitutionally valid.   Given that Ross’ term of probation has already ended—any

issues regarding his 30 day suspended sentence are moot. State v. Adams, 8th Dist.

Cuyahoga No. 85267, 2005-Ohio-3837, ¶5.

       {¶27} Ross’ first assignment of error lacks merit.

       {¶28} Ross’ second assignment of error states the trial court erred in entering a

conviction without sufficient evidence to do so.

       {¶29} As this court stated in State v. Schlee, 11th Dist. Lake No. 93–L–082,

1994 WL 738452, *4–5 (Dec. 23, 1994):

       {¶30} “‘Sufficiency’ challenges whether the prosecution has presented evidence

on each element of the offense to allow the matter to go to the jury, while ‘manifest

weight’ contests the believability of the evidence presented.

       {¶31} “‘“(* * *) [T]he test (for sufficiency of the evidence) is whether after viewing

the probative evidence and the inference[s] drawn therefrom in the light most favorable

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

offense beyond a reasonable doubt. The claim of insufficient evidence invokes an

inquiry about due process. It raises a question of law, the resolution of which does not

allow the court to weigh the evidence.’”




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      {¶32} “In other words, the standard to be applied on a question concerning

sufficiency is: when viewing the evidence ‘in a light most favorable to the prosecution,’

‘(a) reviewing court (should) not reverse a jury verdict where there is substantial

evidence upon which the jury could reasonably conclude that all of the elements of an

offense have been proven beyond a reasonable doubt.’” (emphasis sic.) (Citations

omitted.)

      {¶33} “[A] reviewing court must look to the evidence presented * * * to assess

whether the state offered evidence on each statutory element of the offense, so that a

rational trier of fact may infer that the offense was committed beyond a reasonable

doubt.” State v. March, 11th Dist. Lake No. 98–L–065, 1999 WL 535675, *3 (July 16,

1999). The evidence is to be viewed in a light most favorable to the prosecution when

conducting this inquiry.   State v. Jenks, 61 Ohio St.3d 259, paragraph two of the

syllabus (1991).   Further, the verdict will not be disturbed on appeal unless the

reviewing court finds that reasonable minds could not have arrived at the conclusion

reached by the trier of fact. State v. Dennis, 79 Ohio St.3d 421, 430 (1997).

      {¶34} Here the evidence, viewed in a light most favorable to the prosecution,

was sufficient for the trial court to reasonably conclude that all of the elements of the

offense of passing a bad check were proved beyond a reasonable doubt. There is no

dispute that the check Ross wrote to Vienna Auto Repair was returned for non-sufficient

funds. Ms. Kohn testified that she spoke to Ross on the phone in February, a month

after the repair on his truck, and he stated that he would be in to pay it. Sergeant

Sheehy testified that Ross told him on February 26, 2015 that the check was returned

because the IRS had seized his bank account.




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      {¶35} Mr. Ross testified that he called Vienna Auto Repair on January 18, 2015

(a Sunday) and told the mechanic that he was stopping payment on the check because

the wheel was not properly repaired—which led to his being involved in an accident with

another vehicle. Mr. Ross did not provide a copy of the accident report, nor did he

provide any documentation regarding the lawsuit that his insurance company was

allegedly preparing against Vienna Auto Repair related to the improper repair. Mr. Ross

denied speaking on the phone to Ms. Kohn; Ross also denied that he had admitted to

Sergeant Sheehy at the pre-trial that he had spoken to Sheehy on the phone.

      {¶36} Sufficient evidence was presented for reasonable minds to arrive at the

conclusion reached by the trial court.

      {¶37} Ross’ second assignment of error lacks merit.

      {¶38} The judgment of the Girard Municipal Court is affirmed.



CYNTHIA WESTCOTT RICE, P.J.,

TIMOTHY P. CANNON J.,

concur.




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