[Cite as State v. Wilson, 2018-Ohio-2805.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY




STATE OF OHIO,
                                                          CASE NO. 13-17-41
       PLAINTIFF-APPELLEE,

       v.

BRANDON M. WILSON,                                        OPINION

       DEFENDANT-APPELLANT.



                     Appeal from Tiffin-Fostoria Municipal Court
                            Trial Court No. CRB 1701600

                                      Judgment Affirmed

                              Date of Decision: July 16, 2018



APPEARANCES:

        Emily P. Beckley for Appellant

        Charles R. Hall, Jr. for Appellee
Case No. 13-17-41



WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Brandon M. Wilson (“Wilson”) appeals the

judgment of the Tiffin-Fostoria Municipal Court for (1) not appointing counsel for

him and (2) imposing the maximum sentence. For the reasons set forth below, the

judgment of the trial court is affirmed.

                           Facts and Procedural History

       {¶2} On December 4, 2017, Wilson was charged with one count of

complicity to theft in violation of R.C. 2913.02(A)(3), R.C. 2923.03(A)(2), which

is a misdemeanor of the first degree. Doc. 1. On December 4, 2017, he appeared

before the trial court where the following exchange occurred:

       Mr. Wilson: Yeah. I don’t know why I’m being charged with this
       at all.

       The Court: That’s a question for a bigger day. Like a trial. You
       don’t think you did anything wrong, Mr. Wilson, enter a not
       guilty plea.

       ***

       The Court: So what do you want to do, Mr. Wilson?

       Mr. Wilson: Well, I’d like to get out. And I know if I enter a guilty
       plea or no contest, then I’m agreeing I was doing something.

       ***

       The Court: How do you wish to plead? I don’t want to pitch your
       case.



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       Mr. Wilson: Not guilty.

Tr. 1, 4-6. Several moments later, however, Wilson indicated that he had changed

his mind and wanted to change his plea to guilty. Tr. 6.

       Mr. Wilson: I want to ask if I can change my plea.

       The Court: How do you wish to plead?

       Mr. Wilson: Guilty.

       The Court: You understand by entering a plea of guilty that
       you’re waiving certain fundamental, constitutional rights?

       Mr. Wilson: Yes.

Tr. 6. The trial court then advised Wilson of the constitutional rights that he would

be waiving if he chose to plead guilty, including Wilson’s right to counsel. Tr. 6-7.

       {¶3} After a colloquy about his constitutional rights, Wilson chose to plead

guilty. Tr. 8. While the trial court was making its findings, Wilson interrupted

several times and disputed what the trial judge was stating. Tr. 13. The trial judge

then, based on the facts before him and Wilson’s guilty plea, found Wilson guilty

and sentenced him to a $150.00 fine, 180 days in jail with ninety days suspended,

and two years of probation. In response to this sentence, Wilson said, “I can’t do

probation.” Tr. 21.   After hearing this statement, the trail judge reconsidered

Wilson’s sentence. The trial judge then sentenced Wilson to a $150.00 fine, 180




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Case No. 13-17-41


days in jail with no suspended time, and two years of probation.1 Tr. 17, 21.

Appellant filed his notice of appeal on December 27, 2017. Doc. 4. On appeal,

appellant raises the following assignments of error:

                                 First Assignment of Error

        The trial court erred in not appointing counsel to Appellant in this
        matter.

                                Second Assignment of Error

        The trial court erred in imposing a maximum sentence.

                                   First Assignment of Error

        {¶4} In his first assignment of error, Wilson argues that his waiver of the

right to counsel was not valid and that the trial court should have appointed counsel

for him.

                                         Legal Standard

        {¶5} In cases with misdemeanor charges, a defendant has a right to counsel

under the Sixth Amendment if a conviction may result in incarceration. State v.

Miyamoto, 3d Dist. Union No. 14-05-43, 2006-Ohio-1776, ¶ 13. However, a

criminal defendant also has “an independent constitutional right of self-

representation and * * * may proceed to defend himself without counsel when he

voluntarily, and knowingly and intelligently elects to do so.” State v. Gibson, 45


1
 Wilson received the maximum sentence of 180 days in jail and has no suspended time with his sentence.
At this time, his probation carries no threat of suspended time, but the circumstances surrounding his
probation may change, creating a scenario in which probation can be invoked in the future.

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Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph one of the syllabus. These Sixth

Amendment rights are embodied in Crim.R. 44, which reads in its relevant part as

follows:

       (B) Counsel in Petty Offenses. Where a defendant charged with a
       petty offense is unable to obtain counsel, the court may assign
       counsel to represent him. When a defendant charged with a petty
       offense is unable to obtain counsel, no sentence of confinement
       may be imposed upon him, unless after being fully advised by the
       court, he knowingly, intelligently, and voluntarily waives
       assignment of counsel.

       (C) Waiver of Counsel. Waiver of counsel shall be in open court
       and the advice and waiver shall be recorded * * *.

Crim.R. 44(B), (C). Thus, waiver of the right to counsel “cannot be presumed from

a silent record.” Miyamoto at ¶ 14.

       {¶6} “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 at paragraph two of

the syllabus.

       [A] waiver of the right to counsel 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. In order for the defendant to
       competently and intelligently choose self-representation, he
       should be made aware of the dangers and disadvantages of self-
       representation so that the record will establish that ‘he knows
       what he is doing and his choice is made with eyes open.’



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Case No. 13-17-41


(Citations omitted.) State v. Taylor, 3d Dist. Seneca No. 13-12-35, 2013-Ohio-

1300, ¶ 18. “[C]ourts are to indulge every reasonable presumption against the

waiver of a fundamental constitutional right including the right to be represented by

counsel. The state bears the burden of overcoming presumptions against a valid

waiver.” Taylor at ¶ 20, citing State v. Dyer, 117 Ohio App.3d 92, 95-96, 689

N.E.2d 1034 (2d Dist.1996).

                                  Legal Analysis

       {¶7} In this case, Wilson appeared before the trial court and engaged in the

following colloquy at the beginning of his hearing:

       The Court: Mr. Wilson, I have in front of me this complaint. Did
       you get a copy of it?

       Mr. Wilson: No, I did not.

       The Court: Well, what have you been charged with? You tell me.

       Mr. Wilson: Complicity to theft.

       The Court: Do you understand what the maximum possible
       penalty complicity for theft is?

       Mr. Wilson: Yes.

       The Court: What is it?

       Mr. Wilson: Six months in jail, thousand dollar fine.

       The Court: Yeah. It’s a Misdemeanor of the First Degree. You
       should be made aware there’s no mandatory minimum penalty.
       Any questions about what you’ve been charge with or what the
       maximum possible penalties are?


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       Mr. Wilson: No.

Tr. 2-3. In this exchange, Wilson revealed that he had knowledge of the statutory

offense charged against him and potential penalties accompanying this charge.

       {¶8} At the beginning of this hearing, Wilson also stated that he understood

the implications of entering a guilty plea: “I know if I enter a guilty plea or no

contest, then I’m agreeing I was doing something.” Tr. 4. After Wilson decided he

wanted to plead guilty, the trial court then read through the list of the constitutional

rights that Wilson would be waiving if he pled guilty. Tr. 4-7. During this colloquy,

the following exchange occurred:

       Mr. Wilson: I want to ask if I can change my plea.

       The Court: How do you wish to plead?

       Mr. Wilson: Guilty.

       The Court: You understand by entering a plea of guilty that
       you’re waiving certain fundamental, constitutional rights?

       Mr. Wilson: Yes.

       The Court: We’re going to go over them. First of all, do you
       understand you have a right to an attorney, and if you cannot
       afford an attorney, one could be appointed to represent you. But
       by entering a plea of guilty, you waive that right. Do you
       understand that?

       Mr. Wilson: Yes, I do.




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Tr. 6-7. In this exchange, the trial court informed Wilson of his right to counsel and

offered him appointed counsel. Thus, Wilson can argue that his decision may not

have been intelligent, but he cannot complain that his waiver was not intelligent.

       {¶9} After Wilson affirmatively waived his other constitutional rights, the

following exchange occurred:

       The Court: Do you still wish for the Court to accept your plea of
       guilty?

       Mr. Wilson: Yes.

Tr. 7-8. This exchange demonstrates that the trial court did not accept a guilty plea

from Wilson until after Wilson had be informed of his right to counsel. After the

trial court accepted Wilson’s guilty plea, Wilson proceeded to argue before the trial

court during the sentencing phase of this hearing.

       {¶10} Wilson’s statements in the record indicate that he was aware of the

charges against him, the gravity of his legal situation, the significance of pleading

guilty, and the constitutional rights he would be waiving. The record before us

contains an express waiver of Wilson’s right to counsel that was made in open court.

Based on Wilson’s statements in the record, we find that the appellant made a

voluntary, knowing, and intelligent waiver of his right to counsel. For this reason,

Wilson’s first assignment of error is overruled.




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                             Second Assignment of Error

       {¶11} In his second assignment of error, Wilson argues that the trial court

abused its discretion in ordering that he serve the maximum sentence.

                                   Legal Standard

       {¶12} The overriding principles of misdemeanor sentencing are to guide a

trial court as it imposes a sentence for a misdemeanor offense. R.C. 2929.21(A).

The overriding purposes of misdemeanor sentencing are to protect the public from

future crime by the offender and others and to punish the offender.                R.C.

2929.21(A). R.C. 2929.22(B) contains a list of factors that a trial court is to consider

in determining what sentence would be appropriate. R.C. 2929.22(B). Further, R.C.

2929.22(C) also directs a trial court as follows:

       Before imposing a jail term as a sentence for a misdemeanor, a
       court shall consider the appropriateness of imposing a community
       control sanction * * *. A court may impose the longest jail term
       authorized under section 2929.24 of the Revised Code only upon
       offenders who commit the worst forms of the offense or upon
       offenders whose conduct and response to prior sanctions for prior
       offenses demonstrate that the imposition of the longest jail term
       is necessary to deter the offender from committing a future crime.

R.C. 2929.22(C).

       {¶13} In following the provisions of R.C. 2929.22, a trial court is not

required to state its specific reasons for imposing a sentence for a misdemeanor

conviction. State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶

34. “As such, this court will presume the trial court considered the criteria set forth


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in R.C. 2929.22 when: the sentence at issue is within the statutory limits; and there

is no affirmative showing that the trial court failed to consider the applicable

statutory factors.” State v. Urban, 3d Dist. Seneca Nos. 13-06-43 and 13-06-44,

2007-Ohio-4237, ¶ 13.

       {¶14} Appellate courts review a misdemeanor sentence under an abuse of

discretion standard. State v. Rexroad, 3d Dist. Wyandot No. 16-08-21, 2009-Ohio-

1657, ¶ 18. An abuse of discretion is not merely an error of judgment. State v.

Sullivan, 2017-Ohio-8937, --- N.E.3d ---, ¶ 20 (3d Dist.). Rather, an abuse of

discretion is present where the trial court’s decision was arbitrary, unreasonable, or

capricious. State v. Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 23.

When the abuse of discretion standard applies, an appellate court is not to substitute

its judgment for that of the trial court. State v. Thompson, 2017-Ohio-792, 85

N.E.3d 1108, ¶ 11 (3d Dist.).

                                    Legal Analysis

       {¶15} In this case, the sentence at issue is within the statutory limits as

prescribed by R.C. 2929.24(A)(1) and R.C. 2929.25(A). Further, Wilson, in his

appeal, has not made an affirmative showing that the trial court failed to consider

the applicable statutory factors. Rather, Wilson merely alleges that the trial court

abused its discretion.    For this reason, the presumption—that the trial court

considered the applicable statutory factors—applies to this case. After reviewing

the record, we do not find evidence that indicates the trial court abused its discretion

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in imposing a maximum sentence against Wilson.           Thus, Wilson’s second

assignment of error is overruled.

                                    Conclusion

       {¶16} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Tiffin-Fostoria Municipal Court is

affirmed.

                                                              Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/hls




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