[Cite as Mayfield Hts. v. Brown, 2012-Ohio-167.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 96062




                    CITY OF MAYFIELD HEIGHTS
                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                  BETTY J. BROWN
                                                         DEFENDANT-APPELLANT




                                 JUDGMENT:
                           REVERSED AND REMANDED



                                    Criminal Appeal from the
                                   Lyndhurst Municipal Court
                                     Case No. 08-CRB-01100

        BEFORE: Celebrezze, J., Stewart, P.J., and Keough, J.

        RELEASED AND JOURNALIZED:                           January 19, 2012
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: David M. King
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Dominic J. Vitantonio
City of Mayfield Heights Prosecutor
Argie, D’Amico & Vitantonio
6449 Wilson Mills Road
Cleveland, Ohio 44143


ALSO LISTED:

Betty J. Brown
262 Shelton Boulevard
Eastlake, Ohio 44095
FRANK D. CELEBREZZE, JR., J.:

      {¶ 1} Appellant, Betty J. Brown, appeals her conviction for obstructing

official business. After careful review of the record and relevant case law, we

reverse and remand this matter for further proceedings consistent with this

opinion.

      {¶ 2} On November 10, 2008, appellant was indicted on one count of

obstructing official business in violation of Mayfield Heights Codified

Ordinances 505.14.    Before proceeding with trial, the trial court referred
appellant for a competency evaluation based on the court’s concern that she

did not understand the serious nature of trial. Following the competency

evaluation, appellant was found to be competent to stand trial, and a jury

trial commenced on September 29, 2010. Prior to selecting the jury, the trial

court determined that appellant would be representing herself with the

assistance of stand-by counsel.      On October 1, 2010, the jury returned a

verdict of guilty on the charge of obstructing official business. On October

26, 2010, the trial court sentenced appellant to 90 days in jail and a $750 fine,

plus court costs. The 90 days and $250 of the fine were suspended.

      {¶ 3} Appellant appeals her conviction, raising eight assignments of

error through her counsel and two assignments of error pro se.1

                                Law and Analysis

                         I.   Waiver of Right to Counsel

      {¶ 4} In her first assignment of error, appellant argues that the trial

court erred by accepting her request to proceed pro se without first engaging

in a colloquy to ensure that her decision to waive her constitutional right to

counsel was made knowingly, voluntarily, and intelligently.

      {¶ 5} Although a defendant may eloquently express a desire to

represent himself, a trial court must still satisfy certain parameters to ensure


      1    Appellant’s assignments of error are contained in the appendix to this
opinion.
that the defendant’s waiver of the constitutional right to counsel is made

knowingly, intelligently, and voluntarily. See State v. Thompson, 8th Dist.

No. 85483, 2005-Ohio-6126, 2005 WL 3081533.

      {¶ 6} In State v. Buchanan, 8th Dist. No. 80098, 2003-Ohio-6851, 2003

WL 22966226, this court reiterated the well-established parameters and the

significance of a defendant’s decision to waive his constitutional right to

counsel and represent himself as follows:

      “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 (1976), 45 Ohio
      St.2d 366, 345 N.E.2d 399, paragraph one of the syllabus, citing
      Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45
      L.Ed.2d 562.       However, “courts are to indulge in every
      reasonable presumption against the waiver of a fundamental
      constitutional right, including the right to be represented by
      counsel.” State v. Dyer (1996), 117 Ohio App.3d 92, 95, 689
      N.E.2d 1034. As a result, “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, Cuyahoga App. No. 80198, 2003-Ohio-1499. “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. Martin, supra, citing State v. Jackson (2001),
      145 Ohio App.3d 223, 227, 762 N.E.2d 438.              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, at 835.

      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.”

Buchanan at ¶15-18.       See also State v. Perry, 8th Dist. No. 81825,

2003-Ohio-1175, 2003 WL 1090713; Martin, supra; State v. Buckwald, 8th

Dist. No. 80336, 2002-Ohio-2721, 2002 WL 1265587; State v. Richards, 8th

Dist. No. 78457, 2001 WL 1134880 (Sept. 20, 2001); State v. Jackson, supra;

State v. Melton, 8th Dist. No. 75792, 2000 WL 546005 (May 4, 2000).

      {¶ 7} Lack of compliance with these standards is reversible error and

not subject to harmless error review. Id.

      {¶ 8} In the instant case, the trial court failed to engage in the

necessary colloquy to ensure that appellant’s waiver of counsel was

knowingly, intelligently, and voluntarily made. The record reflects that on

the day of trial, the trial court advised appellant that she had the option to

allow appointed counsel, attorney John Fatica, to represent her at trial or she
could represent herself and utilize attorney Fatica in an advisory capacity.

The trial court informed appellant that if she chose to utilize attorney Fatica

as stand-by counsel, she would not be permitted to speak on the record. At

that time, appellant informed the court that she wished to represent herself:

      [APPELLANT]: He is not going to put on my case.

      COURT:     Then you are trying the case yourself.

      ***

      [APPELLANT]:      He’s not representing me.

      COURT:     So you’re representing yourself.

      [APPELLANT]: Correct, however —

      ***

      COURT: The Court has already made that decision and you’re
      going to go forward and represent yourself. You can ask him
      whatever questions you need to ask him. You can take breaks.
      You can ask the court for a short recess so that you can be guided.
       But that’s the capacity that we’re going forward today.

      {¶ 9} Based on the foregoing colloquy, it is evident that the trial court

failed to comply with the standard set forth in Von Moltke. Rather than

ensuring that appellant’s decision to waive her constitutional right to counsel

was made with her “eyes open,” the trial court merely accepted her waiver

without further inquiry. See Faretta, supra, at 835. At no time did the trial

court address appellant’s understanding of the charges and possible penalties

she faced; nor did the trial court discuss any potential defenses that might
apply. Furthermore, the trial court neglected to adequately inform appellant

of the perils of self-representation.

      {¶ 10}       While we recognize that the trial court demonstrated great

patience in dealing with appellant throughout the proceedings and 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 appellant was

knowingly, intelligently, and voluntarily waiving her right to counsel.           A

sufficient inquiry is especially necessary where, as here, the trial court has

previously stated on the record that it did not believe the defendant

understood the nature of a trial proceeding and ordered a competency

hearing.

      {¶ 11}       Appellant’s first assignment of error is sustained.      The

matter is reversed and remanded for a new trial.         Appellant’s remaining

assignments of error are rendered moot because they do not challenge the

sufficiency of the evidence in this matter. See Tibbs v. Florida, 457 U.S. 31,

102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

      {¶ 12}       This cause is reversed and remanded to the lower court for

further proceedings consistent with this opinion.

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

      The court finds there were reasonable grounds for this appeal.
     It is ordered that a special mandate issue out of this court directing the

Lyndhurst 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.



FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and

KATHLEEN ANN KEOUGH, J., CONCUR.




                                 APPENDIX

Appellant’s assignments of error through counsel:

“I.   The trial court erred in violation of the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Sections 10 &
16 of the Ohio Constitution when it failed to ensure that Ms. Brown was
adequately represented at trial.”
“II. Ms. Brown was deprived of her right to counsel and due process as
guaranteed by the U.S. Constitution Amendments V, VI and XIV and the
Ohio Constitution Article I, Sections 10 and 16 when the court improperly
precluded pro se defendant from pursuing her defense.”

“III. The trial court erred in violation of the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Sections 10 &
16 of the Ohio Constitution when it barred the defendant from calling and
compelling the testimony of properly subpoenaed witnesses.”

“IV. The court violated Ms. Brown’s constitutional rights under Article I,
Section 10 of the Ohio Constitution, and the Fifth and Sixth Amendment[s] to
the United States Constitution and Ohio hearsay law when it allowed Officer
Lord to testify about what he learned from non-witnesses and when the court
allowed Linda Jones to testify to what she heard about Dean Marinpietri.”

“V. The trial court erred in violation of the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Sections 10 &
16 of the Ohio Constitution when it improperly precluded the defendant from
cross-examining a prosecution witnesses [sic].”

“VI. The trial court erred in violation of the Fifth, Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Sections 10 &
16 of the Ohio Constitution when it improperly precluded the defendant from
presenting relevant and probative evidence.”

“VII. The prosecution violated Ms. Brown’s constitutional rights under
Article I, Section 10 of the Ohio Constitution, the Fifth Amendment to the
United States Constitution and the Due Process Clause of the Fourteenth
Amendment to the United States Constitution when it engaged in improper
argument designed to appeal to the passions of the finder of fact.”

“VIII. The cumulative impact of the errors reflected in this record amounted
to a denial of due process and the right to a fair trial.”

Appellant’s pro se assignments:

I.    “Probable cause.”

II.   “Subject matter jurisdiction.”
