[Cite as State v. Simkins, 2019-Ohio-4369.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 27830
                                                    :
 v.                                                 :   Trial Court Case No. 2017-TRC-8248
                                                    :
 RICHARD L. SIMKINS, III                            :
                                                    :   (Criminal Appeal from
         Defendant-Appellant                        :    Municipal Court)
                                                    :

                                               ...........

                                              OPINION

                           Rendered on the 25th day of October, 2019.

                                               ...........

STEPHANIE L. COOK, Atty. Reg. No. 0067101, City of Dayton Prosecutor’s Office, 335
West Third Street, Room 372, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

MARCY A. VONDERWELL, Atty. Reg. No. 0078311, P.O. Box 24805, Dayton, Ohio
45424
      Attorney for Defendant-Appellant

                                              .............

HALL, J.
                                                                                        -2-


       {¶ 1} Richard L. Simkins III appeals from a judgment of the Dayton Municipal Court

that found him guilty and sentenced him to a 180-day suspended jail term following his

no-contest plea to a first-degree misdemeanor charge of having physical control of a

vehicle while under the influence. We affirm.

                            I. Facts and Procedural History

       {¶ 2} On September 13, 2017, Simkins was involved in a single-vehicle accident

while driving his motorcycle in Dayton, Ohio. Dayton Police Officers found Simkins lying

in the grass a few feet away from his motorcycle. Simkins twice told the officers that he

had a “good buzz.” The officers noted that Simkins’s face was flushed, his eyes were

bloodshot, and his speech was slurred. Simkins was cooperative at times and then would

suddenly became belligerent. He was unable to stand up without the assistance of the

two medics who arrived on scene. He was eventually transported to Grandview Hospital,

where he was treated and released. During treatment, blood drawn for medical purposes

showed a blood-alcohol level well over the legal limit.

       {¶ 3} Simkins was charged with one count of operating a motor vehicle under the

influence of alcohol/drugs, a first-degree misdemeanor; one count of driving under

suspension, a first-degree misdemeanor; one count of no license, a first-degree

misdemeanor; and one count of failure to control his motor vehicle, a minor

misdemeanor. On September 18, Simkins was arraigned in the Dayton Municipal Court

and pleaded not guilty. At a pretrial hearing on October 12, Simkins asked for a

continuance in order to speak to an attorney. The matter was rescheduled for a second

pretrial hearing at the end of the month. A few days before that hearing, Simkins filed pro

se a written jury demand. The case was scheduled for jury trial in mid-November.
                                                                                        -3-


       {¶ 4} On November 8, Simkins appeared in court and, with the help of an attorney

acting as a “friend of the court,” pleaded no-contest to the amended charge of having

physical control of a vehicle while under the influence, a violation of R.C. 4511.194 and a

first-degree misdemeanor; the other traffic offenses were to be dismissed. Before Simkins

entered his plea, the attorney, in open court, explained the rights that Simkins would be

giving up. Simkins said that he understood and signed a waiver-of-rights and no-contest

plea form. The trial court accepted Simkins’s plea, and then a statement of facts regarding

the allegations against him was read into the record. The court found Simkins guilty,

imposed a 180-day suspended jail sentence, and ordered him to submit to drug and

alcohol testing. The court also ordered Simkins to pay court costs but did not specify any

fines, license suspension, or other terms.

       {¶ 5} A week later, on November 13, Simkins filed pro se a “Notice of Appeal or

Request for Restart.” The trial court took the motion as a motion to withdraw the no-

contest plea and held a hearing the same day. After hearing from Simkins and the “friend

of the court,” the court overruled the motion to withdraw.

       {¶ 6} Simkins appeals.

                                       II. Analysis

       {¶ 7} Simkins assigns two errors to the trial court. The first argues that the court

erred by accepting his no-contest plea, and the second argues that the court erred by not

permitting him to withdraw the plea.

                           A. Accepting the no-contest plea

       {¶ 8} The first assignment of error alleges:

              THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S NO
                                                                                          -4-


       CONTEST PLEA BECAUSE IT WAS NOT ENTERED KNOWINGLY,

       INTELLIGENTLY, AND VOLUNTARILY.

                                      Applicable law

       {¶ 9} Simkins argues that the trial court failed to comply with Crim.R. 11, which

governs pleas in criminal cases. But in traffic cases, the corresponding Ohio Traffic Rules

apply. See Crim.R. 1(C)(3) (the Criminal Rules, “to the extent that specific procedure is

provided by other rules of the Supreme Court shall not apply to procedure * * * in cases

covered by the Uniform Traffic Rules”); Traf.R. 1(A) (the Traffic Rules apply in traffic

cases); Traf.R. 2(A) (defining “traffic case” as “any proceeding, other than a proceeding

resulting from a felony indictment, that involves one or more violations of a law, ordinance,

or regulation governing the operation and use of vehicles”). See also State v. Watkins, 99

Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635, ¶ 10 (“Since the charges brought

against appellant involved violations of traffic ordinances, the Traffic Rules applied to his

case.”). The charges brought against Simkins were traffic offenses that did not involve a

felony, and the charge to which he ultimately pleaded involves a traffic ordinance, so the

Traffic Rules applied in this case.

                                Compliance with Traf.R. 10

       {¶ 10} Traf.R. 10 governs pleas in traffic cases, and Traf.R. 10(D) specifically

applies to misdemeanor cases involving petty offenses. It is not disputed that Simkins’s

offense was a petty offense. See Traf.R. 2(D) (defining “petty offense” as “an offense for

which the penalty prescribed by law includes confinement for six months or less”). This

rule provides that “the court may refuse to accept a plea of guilty or no contest and shall

not accept such pleas without first informing the defendant of the effect of the plea of
                                                                                             -5-


guilty, no contest, and not guilty.” Traf.R. 10(D).

       {¶ 11} Simkins argues that the trial court failed to fully inform him of the effect of

his no-contest plea. The Ohio Supreme Court has said that the effect of a no-contest plea

is defined in Traf.R. 10(B)(2). Watkins at ¶ 13; State v. Jones, 116 Ohio St.3d 211, 2007-

Ohio-6093, 877 N.E.2d 677, ¶ 23. Division (B)(2) provides that “[t]he plea of no contest is

not an admission of defendant’s guilt, but is an admission of the truth of the facts alleged

in the complaint and such plea or admission shall not be used against the defendant in

any subsequent civil or criminal proceeding.”

       {¶ 12} The state argues that Simkins was fully informed about the effect of his no-

contest plea in the plea form, which he signed. The signed plea form stated: “A plea of

No Contest is not an admission of my guilt, but is an admission of the truth of the facts

alleged against me in the complaint and permits the court to make a finding of guilty or

not guilty. This plea/admission cannot be used against me in any future civil or criminal

proceedings.” The plea of no contest and waiver of rights form, which Simkins signed,

stated: “I understand the above rights and points of law, including my right to counsel and

the effect of my plea. I knowingly, intelligently, and voluntarily waive my rights and willingly

wish to enter a plea of guilty or no contest. I understand the effect of my plea if I am not

a citizen. I hereby answer the following question concerning citizenship and enter my plea

knowingly, intelligently, and voluntarily.” Simkins signed the plea form in open court,

acknowledging his understanding of those rights. We agree with the state that the plea

form informed Simkins of the effect of a no-contest plea, as defined in Traf.R. 10(B)(2).

       {¶ 13} The remaining question is whether the trial court was required to inform

Simkins of the effect personally, that is, orally. The answer is no. “The Ohio Supreme
                                                                                            -6-


Court has not required the trial court to orally inform a defendant of the effect of his or her

plea.” State v. Chipman, 2d Dist. Montgomery No. 27484, 2018-Ohio-33, ¶ 13, citing

Jones at ¶ 51 (“Whether orally or in writing, a trial court must inform the defendant of the

appropriate language under Crim.R. 11(B) before accepting a plea.”). Unlike in cases

involving serious offenses, the trial court need not personally address the defendant and

determine that the defendant understands the nature of the charge and is entering the

plea voluntarily. See Watkins at ¶ 26, quoting Crim.R. 11(C)(2)(a) (“In all cases, the judge

must inform the defendant of the effect of his plea. In felony cases and misdemeanor

cases involving serious offenses, a judge must also ‘addres[s] the defendant personally’

and ‘determin[e] that the defendant is making the plea voluntarily.’ ”).

       {¶ 14} We conclude, therefore, that the trial court complied with the requirements

of Traf.R. 10 in accepting Simkins’s no-contest plea.

                                 Waiver of the right to counsel

       {¶ 15} A harder question is whether Simkins effectively waived his right to counsel.

The right to counsel extends to misdemeanor criminal cases that could result in the

imposition of a jail sentence. State v. Perdue, 2d Dist. Montgomery No. 23151, 2010-

Ohio-565, ¶ 33. We conduct a de novo review to determine, based on the totality of the

circumstances, whether a defendant voluntarily, knowingly, and intelligently waived his

right to counsel. Id. at ¶ 43.

       {¶ 16} “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.” State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399

(1976), paragraph two of the syllabus. To be valid, a waiver of counsel “ ‘must be made
                                                                                       -7-


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.’ ” Id. at 377, quoting Von Moltke v. Gillies, 332 U.S.

708, 723, 68 S.Ct. 316, 92 L.Ed.2d 309 (1948). Also, the defendant “should be made

aware of the dangers and disadvantages of self-representation.” Perdue at ¶ 44, quoting

State v. Gatewood, 2d Dist. Clark No. 2008 CA 64, 2009-Ohio-5610, ¶ 36.

       {¶ 17} The transcript of the plea hearing includes this exchange among Simkins,

the “friend of the court” who helped Simkins plead, and the trial court:

              The state: * * * It’s my understanding that Mr. Simkins has come in

       and had an opportunity to speak with Mr. Grove as a friend of the court. I

       have discussed an offer that I communicated to Mr. Grove and I believe he

       communicated that information to Mr. Simkins and that Mr. Simkins would

       like to avail himself of that offer. I believe that Mr. Grove is helping Mr.

       Simkins execute a waiver of trial. Furthermore, it’s my understanding he

       would like to enter a no contest plea to the amended charge of physical

       control. In exchange for a plea to that amended charge the remaining traffic

       charges would be dismissed and when the court is ready I can go ahead

       and make a statement of facts on the record.

              Mr. Grove: That’s a correct statement your honor. Just for the record

       I am acting solely as a friend of the court in communicating the offer to Mr.

       Simkins who is representing himself. He has before him a waiver of his jury

       and a plea form indicating that he is pleading no contest to the amended
                                                                                  -8-


charge. I believe that is correct is it not Mr. Simkins?

       [Simkins]: That sounds pretty close to the [sic]

       Mr. Grove: Is there anything which I have not stated which you

believe is part of this discussion?

       [Simkins]: No I’m just trying to get this whole thing behind me and get

my self (inaudible).

       ***

       The court: * * * We just want to make sure that you want to waive

the jury and you understand your rights?

       [Simkins]: I do want to waive the jury and I want to waive whatever I

have to waive to get this behind me.

       The court: Ok there’s two forms. Has he executed them yet Mr.

Grove?

       Mr. Grove: No he has not. This is the waiver of your jury which you

have to execute first in order to take care of this matter and you have to sign

over here where it says defendant.

       The court: Ok

       Mr. Grove: And that is your signature sir?

       [Simkins]: That is. Would you like to see my I.D.?

       Mr. Grove: No—and this is a plea form Mr. Simkins. This indicates

that you have the right to an attorney if you are unable to afford one. That

has not yet been provided to you. Thus far you have operated on your own

in a pro se manner. You have a right to know the nature of the charges
                                                                                   -9-


against you. You have already been told of those and the possible

penalties.

       [Simkins]: Yes sir.

       Mr. Grove: You have a right to bail. That’s m[oot] because you are

outside now of a jail. You have a right to have it tried by a judge or jury. You

know that because you executed that right.

       [Simkins]: I waived that right.

       Mr. Grove: Right. You have the right to present witnesses and

(inaudible)

       [Simkins]: (inaudible)

       Mr. Grove: You have a right to question witnesses who testify against

you. You have the right not to testify if a mistake cannot make you do so

[sic]. The state must prove all the elements of the offense and a plea of no

contest, which is number 11, is not an admission of guilt but is an admission

of the truth of the facts alleged against me in the complaint and permits the

court to make a finding of guilty or not guilty. This plea cannot be used

against you in any future civil or criminal proceedings. Do you understand

those right?

       [Simkins]: I do understand that sir.

       ***

       Mr. Grove: Then you need to execute that if you are going to go

forward with a no contest plea.

       [Simkins]: I am sir.
                                                                                            -10-


               The court: Ok then let the record reflect that the jury waiver has been

       executed as well as a waiver of rights form and then Mr. Simkins it’s my

       understanding at this time to the charge has been amended by the

       prosecutor with the dismissal of three other charges you would like to enter

       a plea of no contest to the remaining amended charge of physical control

       correct?

               [Simkins]: That is correct sir.

(Tr. 15-18.)

       {¶ 18} Based on the transcript, the totality of the circumstances in this case leads

us to conclude that Simkins effectively waived his right to counsel. The trial court listened

as Grove informed Simkins of his constitutional right to an attorney if he were unable to

afford one, as well as the rights to require the state to prove all elements of the offense

charged, to a trial by judge or jury, to testify or not testify on his own behalf, and to cross-

examine witnesses. Grove told Simkins that he had a right to know the nature of the

charges against him and noted that Simkins had already been told of the possible

penalties. Simkins agreed with all this. Simkins then signed the plea and waiver-of-rights

form, referred to by Grove and the trial court, enumerating each constitutional right that

Simkins would give up by pleading no-contest, the first being “[t]he right to an attorney

and the right to have an attorney appointed for me if I am unable to afford one.” Below

the list of rights is this sentence: “I UNDERSTAND THE ABOVE RIGHTS AND POINTS

OF LAW, INCLUDING MY RIGHT TO COUNSEL AND THE EFFECT OF MY PLEA.” By

signing the form, Simkins confirmed his understanding of the nature and elements of the

offense charged, the maximum penalty for that offense, his applicable rights as
                                                                                        -11-


enumerated on the form, and his knowing and voluntary waiver of his right to counsel.

Simkins also orally confirmed his understanding of his rights and his intent to waive them

all: “I want to waive whatever I have to waive to get this behind me.” (Tr. 16.)

       {¶ 19} We found an effective waiver of the right to counsel in similar circumstances

in State v. Ruley, 2d Dist. Miami No. 2017-CA-10, 2018-Ohio-3201. In that case, the

defendant pleaded guilty to a first-degree misdemeanor count of drug possession and

was sentenced to 180 days in jail and ordered to pay costs. Based on the transcript of

the plea hearing, we concluded that the defendant waived his right to counsel:

              The trial judge informed [the defendant] of his constitutional rights,

       including not only the rights to an attorney and to have an attorney

       appointed if unable to afford one, but also the rights to require the State to

       prove beyond a reasonable doubt all elements of the offense charged, to a

       speedy trial, to a jury, to testify or not testify on his own behalf, and to

       subpoena and cross-examine witnesses. The judge also accurately advised

       [the defendant] that the misdemeanor possession charge to which he was

       pleading guilty was “punishable by a maximum fine of $1,000.00 and six

       months in jail.” In addition, the [plea form] to which the judge referred, and

       which [the defendant] signed, confirmed [the defendant]’s understanding of

       the nature and elements of the offense charged, the maximum penalty for

       that offense, his applicable rights as enumerated on that document, and his

       knowing and voluntary waiver of his right to counsel. [The defendant] also

       orally confirmed his understanding of his rights and his intent to waive

       counsel.
                                                                                          -12-

Ruley at ¶ 14.

                         Simkins’s mental state and competency

       {¶ 20} Simkins also contends that the trial court failed to inquire into his mental

state and his competency to stand trial. He suggests that the trial court’s failure to sua

sponte order a competency hearing rendered his plea invalid.

       {¶ 21} “A guilty plea that is not knowing, intelligent, and voluntary violates the Ohio

and United States Constitutions. It is the trial court’s duty, therefore, to ensure that a

defendant ‘has a full understanding of what the plea connotes and of its consequence.’ ”

(Citations omitted.) State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71

N.E.3d 180, ¶ 40 (2016), quoting Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709,

23 L.Ed.2d 274 (1969). “A plea may be involuntary if ‘the accused does not understand

the nature of the constitutional protections he is waiving * * * or because he has such an

incomplete understanding of the charge that his plea cannot stand as an intelligent

admission of guilt.’ ” Id. at ¶ 42, quoting Henderson v. Morgan, 426 U.S. 637, 645, 96

S.Ct. 2253, 49 L.Ed.2d 108 (1976), fn. 13. To determine whether a plea colloquy is

sufficient to ensure that a defendant entered a voluntary and knowing plea, we examine

the totality of the circumstances. See id. at ¶ 43.

       {¶ 22} Here, according to Simkins, the record contains considerable evidence

showing that he expressed doubts as to his own competency, displayed evidence of

irrational behavior, and was agitated to the point of making the prosecutor uncomfortable

discussing matters off the record. In addition, there was medical evidence of head trauma

entered into the record by the state. The record shows that on September 13, 2017,

Simkins was involved in a motorcycle accident resulting in head trauma. At the pretrial
                                                                                          -13-


hearing on October 12, Simkins told the court: “I really don’t understand what’s going on.

I’ve had head trauma. In my last hearing, I was very confused for the whole thing.” (Tr.

7.) Simkins states that he appeared to be confused when questioned by the court and in

understanding a simple continuance. At the plea-withdrawal hearing, on November 13,

Simkins told the court that the “friend of the court,” the attorney who helped him plead no

contest, threatened him with jail time if he did not plead. And Simkins said that he had

head trauma and that he did not understand the proceedings: “Whatever happened here

I needed an attorney for it. I do not function mentally. My brain is gone.” (Id. at 27-28.)

       {¶ 23} But during the pretrial hearing, Simkins, using correct legal terms,

expressed clear concern about not waiving any of his rights. Despite his claim that he did

not understand what was transpiring during this pretrial, when he was told that he would

have to sign a continuance in order to allow him the opportunity to speak to an attorney,

Simkins was very concerned about who would be charged for the continuance, saying,

“ok, to be clear it’s the prosecutor requesting the continuance.” (Id. at 7.) And when the

court explained the possible penalties and legal ramifications associated with an OVI

offense, Simkins clearly indicated that he understood, saying, “Yeah I already received

that for a refusal.” (Id. at 8.) Also, Simkins filed pro se a written demand for discovery and

a jury demand. Finally, nothing at the November 8 plea hearing suggests that Simkins did

not enter his no-contest plea knowingly, intelligently, and voluntarily. There is no evidence

that the injury he sustained in the motorcycle accident caused a traumatic brain

injury, and we see no indication that the alleged head trauma affected Simkins’s

judgment. His responses to questions were appropriate. We note that because Simkins’s

statements at the plea-withdrawal hearing occurred after the court had accepted his plea,
                                                                                          -14-


those statements are not relevant to the question of his mental state at the time he

pleaded.

       {¶ 24} The record does not indicate that Simkins failed to understand the

proceedings. During the plea colloquy, he answered the court’s questions appropriately

and exhibited no behavior that was outrageous, irrational, or confused. In short, there is

little evidence in the record showing that Simkins was not in full possession of his faculties

at the plea hearing. Under these circumstances and considering the totality of the

evidence, we conclude that Simkins entered his plea voluntarily and knowingly.

       {¶ 25} The first assignment of error is overruled.

                          B. Withdrawing the no-contest plea

       {¶ 26} The second assignment of error alleges:

              THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED

       CRIMINAL RULE 31.1 WHEN IT FAILED TO ALLOW APPELLANT TO

       WITHDRAW HIS GUILTY PLEA.

       {¶ 27} Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty or no

contest may be made only before sentence is imposed; but to correct manifest injustice

the court after sentence may set aside the judgment of conviction and permit the

defendant to withdraw his or her plea.” “A defendant moving for a postsentence

withdrawal of a guilty plea has the burden of establishing the existence of manifest

injustice.” State v. Yapp, 2015-Ohio-1654, 32 N.E.3d 996, ¶ 8 (8th Dist.), citing State v.

Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. “A

manifest injustice is a clear or openly unjust act; an extraordinary and fundamental flaw

in the plea proceeding. Manifest injustice comprehends a fundamental flaw in the path of
                                                                                          -15-


justice so extraordinary that the defendant could not have sought redress from the

resulting prejudice through another form of application reasonably available to him or her.”

(Citations omitted.) Id.

       {¶ 28} “Appellate courts review trial court decisions on motions to withdraw pleas

for abuse of discretion.” State v. Becraft, 2017-Ohio-1464, 89 N.E.3d 218, ¶ 44 (2d Dist.),

citing Smith at paragraph two of the syllabus. The good faith, credibility, and weight of the

movant’s assertions in support of the motion are matters to be resolved by the trial

court. Id.

       {¶ 29} On appeal, Simkins bases his argument for withdrawal on the reasons given

in the first assignment of error for why it was error for the trial court to accept his no-

contest plea in the first place. But his motion to withdraw is based on alleged coercion by

Grove, the “friend of the court.” Simkins alleges that Grove yelled at him and told him that

he would go to jail if he did not plead. At the plea-withdrawal hearing, Grove told the trial

court that he did nothing improper:

       When I was here with the defendant acting as a friend of the court * * *. I

       simply—for the record I stated on the record that I was not his attorney and

       I was simply communicating an offer that had been extended by the

       prosecution where he would not in all probability go anywhere near a jail if

       he chose to accept the offer. * * * The alternative was simply that I would

       request the judge to appoint a lawyer and that he could come back at a later

       time. When I explained to him his options he elected to exercise the option

       in favor of a no contest plea to the charge of physical control, which as I

       tried to explain to him carries no points, no mandatory jail sentence, and the
                                                                                           -16-


       court in accordance with practice that is pretty much standard here imposed

       a little more than court costs and that was it. Now I don’t know what I have

       done wrong except that I was going to give him his options or if he chose to

       exercise his right to a trial and the matter was already set for a jury trial the

       following week and a day later I would simply ask the court to appoint. That’s

       what I did.

(Tr. 25-26.) Simkins responded:

               [Simkins]: My point is that it was highly improper for him to offer me

       any deal at all. For him to attempt to offer me a deal at that point was wrong.

               The court: It’s my understanding he didn’t offer you [sic]

               [Simkins]: He did. He took me back in that room and threatened me

       with jail time if I didn’t plead out.

               The court: He has no power to offer anything. All he is doing is

       communicating the offer from the prosecution to you.

               [Simkins]: Sir I don’t really understand. I’ve had head trauma and I

       get very confused and I have the hand written motions. If you want to review

       the record he told me I couldn’t have a continuance. My head was ringing

       during the proceedings. I was withdrawing from my pain medication. He

       interrupted me when I—he read something about a continuance and I tried

       to say wait a minute you told me I couldn’t have one. He interrupted me and

       yelled at me. * * *

(Tr. 26-27.)

       {¶ 30} There is no evidence other than the statements at the hearing made by
                                                                                         -17-


Simkins and Grove. Nothing in the record corroborates Simkins’s allegations. We defer

to the trial court’s credibility determinations, and we see no manifest injustice that would

support withdrawal. We conclude that the court did not abuse its discretion by denying

withdrawal of Simkins’s no-contest plea.

       {¶ 31} The second assignment of error is overruled.

                                          III. Conclusion

       {¶ 32} We have overruled both of the assignments of error presented. Therefore

the trial court’s judgment is affirmed.

                                      .............



TUCKER, J., concurs.

FROELICH, J., dissents.

       {¶ 33} As noted by the majority opinion, the right to counsel applies in

misdemeanor cases, including cases involving petty offenses, that result in imprisonment.

Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Scott v. Illinois,

440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). The rule extends to cases involving

a suspended sentence, capable of subsequent revocation, resulting in incarceration.

Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002); State v.

Owens, 2d Dist. Montgomery No. 23150, 2010-Ohio-564, ¶ 18.

       {¶ 34} A criminal defendant has the independent constitutional right of self-

representation. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562

(1975); State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 23.

Thus, a defendant may proceed to defend himself without the benefit of counsel when he
                                                                                          -18-

or she voluntarily, knowingly, and intelligently elects to do so. State v. Youngblood, 2d

Dist. Clark No. 05CA0087, 2006-Ohio-3853, ¶ 10, citing State v. Gibson, 45 Ohio St.2d

366, 345 N.E.2d 399 (1976).

       {¶ 35} However, “[c]ourts are to indulge every reasonable presumption against the

waiver of a fundamental constitutional right, including the right to counsel.” State v. Dyer,

117 Ohio App.3d 92, 95, 689 N.E.2d 1034 (2d Dist.1996); State v. Street, 2d Dist.

Montgomery No. 26501, 2015-Ohio-2789, ¶ 35. The waiver must affirmatively appear in

the record, and the State bears the burden of overcoming presumptions against a valid

waiver. Dyer at 95, Street at ¶ 35. Crim.R. 44(C) requires a waiver of counsel to be “in

open court and the advice and waiver shall be recorded as provided in Rule 22.”

       {¶ 36} In this case, Simkins was arraigned on September 18, 2017. At that time,

the trial court informed him, among other things, that he had a right to an attorney and

that one would be appointed for him if he could not afford one. The court entered a not

guilty plea on Simkins’s behalf and set a pretrial conference.

       {¶ 37} The pretrial conference was held on October 12, 2017. The prosecutor

told the court that he had spoken with Mr. Grove of the Public Defender’s Office, and

Grove had said that Simkins had not been to that office. The prosecutor indicated that

the matter involved “an OVI so it is something that he [Simkins] probably should have an

attorney on.” The trial court asked Simkins if he had money for an attorney, and Simkins

responded that he did not. The court replied, “Ok we need to get you over to the Public

Defender’s Office then.” The court told Simkins where that office was located and asked

if Simkins knew where it was. The court further stated:

       We are going to give you a reset for pretrial and we are going to refer you
                                                                                          -19-


       over to the Public Defender. All you have to do is go over there in person.

       They are going to ask you a few simple financial questions and once you

       get that worked out with them they will probably end up representing you

       and then we will have you back for another pretrial.

       {¶ 38} At that juncture, Simkins asked whether the State was requesting the

continuance. Simkins stated that he “really [didn’t] understand what’s going on. I’ve

had head trauma. In my last hearing I was very confused for the whole thing.” The

court explained the charge and the potential punishment Simkins faced.             The court

continued: “There’s a lot of different legal ramifications that go along with it. That’s why

if you don’t understand all this we are trying to get you over to the Public Defender’s Office

so you can sit down with a licensed practicing attorney who works in this courtroom every

day to try and explain it all to you and what your options are.” Simkins thanked the court

and expressed that he did not want to waive any of his rights. At the conclusion of this

pretrial conference, the court told Simkins to go the Public Defender’s Office “today or

tomorrow” and that it (the court) would set a new court date.

       {¶ 39} Another pretrial conference was held on October 31, 2017.               At the

beginning of the conference, the prosecutor told the court that Simkins had filed two pro

se motions and that Simkins “is representing himself at this point.”          The court and

prosecutor then discussed whether a plea had been offered. The court indicated that it

would set the matter for a jury trial on November 16, 2017. The court acknowledged the

State’s representation that Simkins wanted to represent himself, but Simkins said nothing

regarding a waiver of his right to counsel.

       {¶ 40} Simkins entered a plea on November 8, 2017. The prosecutor began the
                                                                                          -20-


hearing by stating:

       * * * It’s my understanding that Mr. Simkins has come in and had an

       opportunity to speak with Mr. Grove as a friend of the court.           I have

       discussed an offer that I communicated to Mr. Grove and I believe he

       communicated that information to Mr. Simkins and that Mr. Simkins would

       like to avail himself of that offer. I believe that Mr. Grove is helping Mr.

       Simkins execute a waiver of trial. Furthermore, it’s my understanding he

       would like to enter a no contest plea to the amended charge of physical

       control. In exchange for a plea to that amended charge the remaining

       traffic charges would be dismissed and when the court is ready I can go

       ahead and make a statement of facts on the record.

       {¶ 41} Grove then confirmed for the court that he was acting “solely as a friend of

the court in communicating the offer to Mr. Simkins who is representing himself.”

Simkins also stated that he wanted to waive a jury and “to waive whatever I have to waive

to get this behind me.” Grove showed Simkins a waiver of jury trial form and indicated

where Simkins needed to sign it. Grove also showed Simkins the plea form. Grove and

Simkins then had a lengthy exchange, quoted in the majority opinion, during which Grove

reviewed the plea form with Simkins and confirmed that Simkins knew that he had a right

to an attorney, had been told the nature of the charges and the penalties he faced, and

knew that he had a right to bail, to a jury trial, to present witnesses, to question witnesses

against him, and not to testify. Grove told Simkins that the State was required to prove

all of the elements of the offense and the effect of a no contest plea. Simkins expressed

his understanding. Grove told Simkins, “Then you need to execute that if you are going
                                                                                          -21-


to go forward with a no contest plea.” Simkins signed the plea form. The plea included

statements, in all capital letters, that the defendant understood “the above rights and

points of law, including my right to counsel and the effect of my plea. I knowingly,

intelligently, and voluntarily waive my rights and willingly wish to enter a plea of guilty or

no contest.”

       {¶ 42} The trial court confirmed with Simkins that he wished to enter a no contest

plea to the amended charge, and it accepted Simkins’s no contest plea.

       {¶ 43} The State did not meet its burden of overcoming the presumption against a

valid waiver of Simkins’s right to counsel. At his first pretrial conference on October 12,

Simpkins was informed that he should go to the Public Defender’s Office, and Simpkins

told the trial court that he did not want to waive any of his rights.        The prosecutor

expressed at the October 31 pretrial conference that Simkins was representing himself,

but the trial court did not engage in any discussion with Simkins to effectuate a waiver of

Simkins’s right to counsel; Simkins made no affirmative statements that he wished to

proceed without the assistance of counsel.

       {¶ 44} The November 8 hearing, during which Simkins entered his no contest plea,

created a potentially confusing situation in which Simkins was nominally pro se, but both

Simkin and the court were receiving substantial assistance from Mr. Grove, a public

defender. The attorney had conveyed the State’s plea offer to Simkins and, at the

hearing, the attorney directed Simkins to review and sign the waiver of jury form and the

plea form.     It was the attorney, not the trial court, who provided Simkins with the

information typically addressed in a plea colloquy. Simkins acknowledged that he had

“already been told of [the nature of the charges] and the possible penalties,” but neither
                                                                                          -22-


Grove nor the trial court reiterated them orally at the hearing.

       {¶ 45} Grove made clear to the trial court that he was acting as a friend of the court

and not as Simkins’s counsel, but Simkins was never asked whether he understood that

Grove was not his attorney and whether he (Simkins) would be willing to proceed without

an attorney, such as Grove, present. Simkins was informed of his right to counsel, but

never was expressly asked if he wished to waive that right. The trial court never made

Simkins aware of the “dangers and disadvantages of self-representation.” See, e.g.,

State v. Ruley, 2d Dist. Miami No. 2017-CA-10, 2018-Ohio-3201, ¶ 13; State v.

Gatewood, 2d Dist. Clark No. 2008 CA 64, 2009-Ohio-5610, ¶ 36. As the trial court noted

on October 12, there are “a lot of different legal ramifications that go along with” the OVI

charge.

       {¶ 46} In short, I conclude that the totality of the circumstances did not establish

that Simkins knowingly, voluntarily, and intelligently waived his right to counsel at his

arraignment, pretrial conferences, or plea hearing.

       {¶ 47} Alone, the trial court’s failure to obtain a valid waiver of counsel from

Simkins does not warrant the reversal of his conviction.           “Because the right to the

assistance of counsel in a petty offense is discretionary under the Criminal Rules, the fact

that the trial court failed to obtain a valid waiver under Crim.R. 44(C) does not mean that

the judgment itself must be vacated. ‘Where * * * the offense is a petty offense, there is

nothing fatally defective with the judgment in general, but only with the “sentence of

confinement.” ’ ” (Citations omitted.) Owens, 2d Dist. Montgomery No. 23150, 2010-Ohio-

561, at ¶ 30.

       {¶ 48} In the absence of a valid waiver of Simkins’s right to counsel, the trial court
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was prohibited from sentencing him to a period of incarceration, including a suspended

jail sentence. Accordingly, I would modify Simkins’s sentence to remove the suspended

sentence and affirm Simkins’s conviction as modified.




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Stephanie L. Cook
Marcy A. Vonderwell
Hon. Daniel G. Gehres
