[Cite as State v. Smith, 2015-Ohio-3305.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2015-T-0001
        - vs -                                  :

CHRISTOPHER SMITH,                              :

                 Defendant-Appellant.           :




Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2014 CR
00267.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Appellant, Christopher Smith, appeals from the December 10, 2014

judgment of the Trumbull County Court of Common Pleas, sentencing him for

harassment with a bodily substance following a jury trial.       Appellant, an indigent

defendant, waived his right to counsel and proceeded pro se at his jury trial. On appeal,
appellant asserts the trial court erred by not assigning stand-by counsel to assist him.

The assignment of stand-by counsel may be a best practice and has a strong potential

to eliminate potential reversible or plain error when a defendant elects to proceed pro

se. However, based on the facts presented in this case and for the reasons stated, we

affirm.

          {¶2}   On April 3, 2014, appellant was indicted by the Trumbull County Grand

Jury on one count of harassment with a bodily substance, a felony of the fifth degree, in

violation of R.C. 2921.38(A) and (D). Appellant was represented by David T. Rouzzo,

an attorney with the Trumbull County Branch Office of the Ohio Public Defender’s

Commission. Appellant entered a not guilty plea at his arraignment.

          {¶3}   On November 12, 2014, appellant appeared in open court and filed a

written “Waiver of Counsel” pursuant to Crim.R. 44. The trial court advised appellant of

the nature of the charge against him as well as advised him of his rights and of those

with which he was waiving.        The court was satisfied that appellant understood the

foregoing and accepted his waiver of counsel.

          {¶4}   Appellant represented himself pro se at his jury trial which commenced on

November 17, 2014. Corrections Officer Olivia Jennings testified for the state. She

indicated that on December 27, 2013, while appellant was incarcerated on another

matter, he was disruptive and deliberately spit on her when she ordered him, more than

three times, back to his cell. Appellant’s position, however, was that he merely sneezed

on Corrections Officer Jennings while another officer was attempting to escort him to

solitary confinement.




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        {¶5}    Following trial, the jury returned a verdict finding appellant guilty of

harassment with a bodily substance, as charged in the indictment. On November 19,

2014, the trial court entered judgment on the verdict. On December 10, 2014, the court

sentenced appellant to 12 months incarceration.                 Appellant filed a timely notice of

appeal and asserts the following assignment of error:1

        {¶6}    “The trial court erred, as a matter of law, by refusing to permit the

appellant to have stand-by counsel.”

        {¶7}    At the outset, we note again that appellant waived his right to counsel and

proceeded pro se at his jury trial after assuring the trial court that his decision was

voluntary, knowing, and intelligent. On appeal, appellant now argues the trial court

abused its discretion by not providing him with stand-by counsel during his pro se

representation. Although the assignment of stand-by counsel may be a best practice,

the record establishes, however, that appellant did not request “stand-by counsel” or

object to proceeding without “stand-by counsel.” Therefore, we consider this matter

under a plain-error analysis.

        {¶8}    “It is well established that ‘the failure to object [at the trial court level]

constitutes a waiver of any claim of error relative thereto, unless, but for the error, the

outcome of the trial clearly would have been otherwise.’ (Emphasis added.) State v.

Underwood (1983), 3 Ohio St.3d 12, * * *, syllabus, citing State v. Long (1978), 53 Ohio

St.2d 91, * * *; Crim.R. 52(B). Furthermore, ‘“notice of plain error under Crim.R. 52(B) is

to be taken with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.”’ State v. Gordon (Mar. 22, 1996), 11th Dist.


1. The trial court appointed Attorney Michael A. Partlow to represent appellant on appeal.



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No. 92-A-1696, 1996 Ohio App. LEXIS 1078, at 3-4, quoting Long, supra, paragraph

three of the syllabus.” (Parallel citations omitted.) State v. Schlee, 11th Dist. Lake No.

2004-L-070, 2005-Ohio-5117, ¶28.

       {¶9}    Criminal defendants have many guaranteed rights under the United States

Constitution, including the following rights under the Sixth Amendment:

       {¶10} Rights of the accused.

       {¶11} “In all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and district wherein the crime shall have

been committed, which district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defense.”

       {¶12} At issue in this case is the right to counsel. However, the waiver of one

right, i.e., the waiver of the right to counsel, does not exist in a vacuum.          Stated

differently, when a defendant waives his right to counsel, does he waive all of his rights?

The answer is simply “no.”         Thus, even though a defendant waives one right, a

cascading set of rights still follow.

       {¶13} The trial court, as an impartial arbiter, must ensure that all rights are

guaranteed so that a defendant has a fair trial. See State v. Kelly, 8th Dist. Cuyahoga

Nos. 91875 and 91876, 2010-Ohio-432, ¶17, citing State v. Byrd, 63 Ohio St.2d 288,

292 (1980).     The trial judge, as the impartial arbiter, cannot allow all of the other

constitutional rights to be compromised simply because a defendant waives his right to

counsel. When the right to counsel is waived this puts an added pressure or burden on




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the trial court to ensure all of the other rights independently granted to the defendant

have not been waived or forfeited due to the defendant’s self-representation. As most

pro se defendants do not have the technical savvy and/or legal expertise in knowing

which rights to raise, they must be provided an adequate platform.

       {¶14} Regarding the right to counsel, the Sixth and Fourteenth Amendments

under the United States Constitution guarantee that a person brought to trial in any

state or federal court must be afforded the right to the assistance of counsel before he

can be validly convicted and punished by imprisonment. See, e.g., Powell v. Alabama,

287 U.S. 45 (1932).

       {¶15} The United States Supreme Court later held in Faretta v. California, 422

U.S. 806 (1975), that a criminal defendant also has a constitutional right to proceed

without counsel at trial, where the defendant voluntarily and intelligently elects to do so.

See also State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, ¶18, citing Faretta,

supra.2

       {¶16} “To establish an effective waiver of the right to counsel, the trial court must

make a sufficient inquiry to determine whether the defendant fully understands and

intelligently relinquishes that right. State v. Gibson, 45 Ohio St.2d 366, * * * (1976),

paragraph two of the syllabus. Crim.R. 44(A) also provides that a defendant is entitled

to counsel ‘unless the defendant, after being fully advised of his right to assigned

counsel, knowingly, intelligently, and voluntarily waives his right to counsel.’ The United

2. As an aside, we note, however, that unlike the right to proceed without counsel at trial, there is no
“constitutional right to self-representation on direct appeal from a criminal conviction.” Martinez v.
California, 528 U.S. 152 (2000) (denying the appellant’s pro se motion to represent himself and to waive
the appointment of counsel on appeal). See also State v. Ferguson, 108 Ohio St.3d 451, 2006-Ohio-
1502, ¶97, citing Martinez, supra (holding that the appellant had no constitutional right to represent
himself on appeal and no right to a “hybrid” form of representation in which he would be represented by
counsel while also acting simultaneously as his own counsel).



                                                   5
States Supreme Court, however, has not prescribed a precise formula or script that

must be read to defendants who indicate that they desire to proceed without counsel.

State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, * * * ¶101. Instead, to be valid,

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.’ State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, * * *, ¶40.” (Parallel

citations omitted.) State v. Thigpen, 8th Dist. Cuyahoga No. 99841, 2014-Ohio-207,

¶28.

       {¶17} “[A] State may – even over objection by the accused – appoint a ‘standby

counsel’ to aid the accused if and when the accused requests help, and to be available

to represent the accused in the event that termination of the defendant’s self-

representation is necessary.” Faretta, supra, at 834, citing United States v. Dougherty,

473 F.2d 1113, 1124-1126 (1972).         Thus, the appointment of stand-by counsel is

discretionary, not mandatory. Id.; see also State v. Watson, 132 Ohio App.3d 57, 65

(8th Dist.1998) (holding “[a] trial court may – but is not required to – appoint stand-by

counsel.”

       {¶18} In   this   matter,   appellant   asserts   he   was   not   seeking   “hybrid

representation” but rather contemplated a situation where counsel would be available at

the trial table to assist him with any evidentiary concerns.        Appellant claims the

appointment of stand-by counsel is mandatory and that he was prejudiced due to the

trial court’s misunderstanding of the law.




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       {¶19} In support of his claim, appellant cites to a single case from 2004, State v.

Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, for the proposition that criminal

defendants have the right to stand-by counsel even if they waived legal representation.

Specifically, appellant relies on paragraph one of the syllabus in Martin which states: “In

Ohio, a criminal defendant has the right to representation by counsel or to proceed pro

se with the assistance of standby counsel. However, these two rights are independent

of each other and may not be asserted simultaneously.”3 Upon review of Martin and of

the facts presented in the case at bar, we determine appellant’s reliance on Martin is

misplaced.

       {¶20} Unlike appellant in the case sub judice, the Court in Martin found that the

appellant never actually waived his right to representation but rather wanted to act as

co-counsel and to be part of the defense team. Martin, supra, at ¶30, 42. Also, unlike

appellant in the instant case, the appellant in Martin never signed a Crim.R. 44 written

waiver of counsel and was never made aware of the “dangers and disadvantages” of

self-representation. Id. at ¶18, 44.

       {¶21} Relying only on paragraph one of the Martin syllabus, appellant asserts a

mandate exists regarding a right to stand-by counsel.                 However, as stated, the

appointment of stand-by counsel is discretionary, not mandatory. Faretta, supra, at

834; Watson, supra, at 65. “Once a defendant chooses to represent himself, ‘(a) trial

court may – but is not required to – appoint stand-by counsel to aid a defendant if and

when the defendant requests assistance (* * *).’” Watson at 65. Contrary to appellant’s


3. We note again that Martin was decided in 2004 and has since been distinguished by several cases:
See State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404; State v. Griffin, 10th Dist. Franklin No.
10AP-902, 2011-Ohio-4250; State v. Julian, 6th Dist. Williams No. WM-06-009, 2007-Ohio-3568; State v.
Pruitt, 6th Dist. Lucas No. L-03-1153, 2004-Ohio-7176; Capers v. Bradshaw, N.D.Ohio No. 1:11CV2496,
2013 U.S. Dist. LEXIS 143355 (Oct. 3, 2013).


                                                 7
suggestion, “Martin does not create a right to stand-by counsel, but rather recognizes

that stand-by counsel may be appointed by the court at its discretion to assist a pro se

defendant, ‘even over objection by the accused.’” State v. Colon, 8th Dist. Cuyahoga

No. 87499, 2006-Ohio-5335, ¶13, reversed on other grounds, State v. Colon, 118 Ohio

St.3d 26, 2008-Ohio-1624, citing Martin at ¶28, quoting Faretta at 834.

       {¶22} Paragraph one of the Martin syllabus must be analyzed in the context of

the rest of that opinion. See State v. Bloodworth, 9th Dist. Summit No. 26346, 2013-

Ohio-248, ¶5 (regarding the appellant’s suggestion that the appointment of stand-by

counsel is mandatory renders the Martin Court’s opinion internally inconsistent.)

       {¶23} “In paragraph 28, the Court wrote that ‘(o)nce the right to counsel is

properly waived, trial courts are permitted to appoint standby counsel to assist the

otherwise pro se defendant.’ Martin * * * at ¶28 * * *. If a court is required to appoint

standby counsel whenever a defendant waives his right to counsel, it would make no

sense for the Court to write that a trial court is ‘permitted’ to appoint standby counsel in

such instances. Id. * * * ‘[A] pro se defendant does not enjoy an absolute right to

standby counsel.’ State v. Gatewood, 2d Dist. No. 2008 CA 64, 2009-Ohio-5610, ¶46;

State v. Washington, 8th Dist. Cuyahoga Nos. 96565, 96568, 2012-Ohio-1531, ¶9-10.”

(Emphasis added.) Bloodworth, supra, at ¶5.

       {¶24} The defendant raises issues of stand-by counsel and hybrid counsel. In

order to determine the existence of error in allowing defendant to proceed without

counsel, we must discuss the difference between the two.




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      {¶25} In 2010, the Fifth District, in State v. Spung, 5th Dist. Delaware Nos.

09CAC060059 and 09CAC060060, 2010-Ohio-3294, ¶17-22, addressed the distinction

between stand-by counsel and hybrid counsel:

      {¶26} “In State v. Martin, [supra], ¶24, 31-34, * * *, the Supreme Court of Ohio

discussed the distinction between standby counsel and hybrid counsel as follows:

      {¶27} “‘This court, too, has concluded that “a defendant in a state criminal trial

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, [supra], * * * paragraph one of the syllabus, citing

Faretta.

      {¶28} “‘This court has held that “(n)either the United States Constitution, the

Ohio Constitution nor case law mandates (***) hybrid representation. See McKaskle v.

Wiggins (1984), 465 U.S. 168 * * *. Although appellant has the right either to appear

pro se or to have counsel, he has no corresponding right to act as cocounsel on his own

behalf.” State v. Thompson (1987), 33 Ohio St.3d 1, 6-7, * * *.

      {¶29} “‘Today we reaffirm and hold that in Ohio, a criminal defendant has the

right to representation by counsel or to proceed pro se with the assistance of standby

counsel. However, these two rights are independent of each other and may not be

asserted simultaneously. Parren v. State (1987), 309 Md. 260, 269, * * *.

      {¶30} “‘Hybrid representation raises several troubling issues. First, situations

may arise in a hybrid representation environment where the accused and his “co-

counsel” disagree on strategy, which witnesses to call, and other key trial issues. Who

is the ultimate decision maker? Hybrid representation poses difficult ethical issues for




                                           9
counsel and management issues for the trial judge when the defendant and his counsel

disagree as to how the trial should proceed.

       {¶31} “‘Even more troubling is the issue of waiver. As the Maryland high court

stated in Parren v. State: “The problems arising from such a concept of hybrid

representation are apparent. It could not be ascertained by anyone, including the trial

court itself, until after the trial whether the defendant had enjoyed representation by

counsel, self-representation or hybrid representation, for ‘(t)he question is one of

degree.’ (Bright v. State (1986), 68 Md.App. 41) at 47, * * *. Neither the court, nor the

defendant, nor counsel, nor the prosecutor would know until the record of the trial was

examined who was actually responsible for the conduct of the defense and in control of

deciding questions and resolving problems as they arose.”’” (Parallel citations omitted.)

       {¶32} Here, appellant does not dispute that he waived his right to counsel in

open court and in writing, pursuant to Crim.R. 44, on November 12, 2014.            Also,

appellant does not dispute that he was thoroughly advised of his right to counsel and

that he voluntarily, knowingly, and intelligently waived that right.

       {¶33} The record establishes appellant did not accept the state’s plea offer.

Although appellant was represented by Attorney Rouzzo, appellant advised the court he

wanted to represent himself. Appellant informed the court that he had represented

himself in other criminal matters in the past.

       {¶34} At the November 12, 2014 hearing, an exchange took place between the

trial judge and appellant regarding the waiver of counsel. Appellant acknowledged that

he would be required to comply with the Rules of Criminal Procedure, indicated he knew

the Rules of Evidence, and said he knew how to lay a proper foundation. The trial judge




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told appellant he would not be allowed a “hybrid representation” and that Attorney

Rouzzo would not be able to assist him “in any fashion.”

       {¶35} It appears appellant contemplated a situation where counsel would be

available at the trial table to assist him. However, appellant did not use the words

“stand-by counsel,” did not request “stand-by counsel,” and did not object to the solo

arrangement. Appellant represented himself pro se at his jury trial which commenced

on November 17, 2014.

       {¶36} Although appellant told the trial judge at the November 12, 2014 hearing

that he had knowledge of the Rules of Criminal Procedure, the Rules of Evidence, and

that he was perfectly capable of admitting his own documents, he now asserts on

appeal that he made procedural missteps.            Specifically, appellant alleges he was

prejudiced because he did not have the assistance of counsel, even though he waived

it, which caused the trial court to disallow the admission of three exhibits, Defense

Exhibits A, B, and C.

       {¶37} As stated, the trial court, as an impartial arbiter, must ensure that all rights

are guaranteed so that a defendant has a fair trial. We find it worth repeating that the

trial judge, as the impartial arbiter, cannot allow all of the other constitutional rights to be

compromised simply because a defendant waives his right to counsel.                Particularly

disturbing in this case is that counsel was required to stand in the back of the courtroom

and not participate during the whole trial. In waiving one’s right to counsel, this puts an

added pressure or burden on the trial court to ensure all of the other rights and that a

defendant is not precluded from raising them. As most pro se defendants do not have




                                              11
the technical savvy and/or legal expertise in knowing which rights to raise, they must be

provided an adequate platform. This was readily available through stand-by counsel.

       {¶38} We note again that the assignment of stand-by counsel may be a best

practice and has a strong potential to eliminate potential reversible or plain error when a

defendant elects to proceed pro se. However, in this instance, we are forced to analyze

the record in light of the trial court’s exclusion of the pro se defense exhibits. We are

called upon to determine whether the exhibits would have been admissible if appellant

had counsel and, if so, whether they would have changed the outcome, thus calling for

reversal.

       {¶39} Defense Exhibit A is a “Conduct” report from Corrections Officer Jennings.

Corrections Officer Jennings is quoted about the spitting incident. The “Conduct” report

is wholly consistent with her trial testimony that appellant was disruptive and spit on her.

Its impeachment value was minimal and, if admitted, it would not have changed the

outcome of this case.

       {¶40}   Exhibit B is a “Use of Force” report from Dennis Lemon, Use of Force

Chairperson of the Ohio Department of Rehabilitation and Correction, to Christopher

LaRose, Warden.      The “Use of Force” report details in an overview how appellant

became disruptive and spit on Corrections Officer Jennings. Neither Mr. Lemon nor Mr.

LaRose testified at trial. Therefore, the admissibility of the “Use of Force” report is

highly improbable.

       {¶41} Exhibit C is an “Investigative” report from Trooper Seth Howard. Trooper

Howard testified at trial regarding the spitting incident. In the “Investigative” report,

Trooper Howard quotes Corrections Officer Griffin, who cuffed appellant and walked




                                            12
him by Corrections Officer Jennings when appellant spit on her. Corrections Officer

Griffin did not testify at trial. Therefore, his statements contained in the “Investigative”

report constitute objectionable hearsay. We note that the state did not object when

appellant cross-examined Trooper Howard about Corrections Officer Griffin’s statement.

Thus, even without the admission of the “Investigative” report, the jury heard

Corrections Officer Griffin’s recollection of the spitting incident.

       {¶42} Upon review, as stated, the trial court, as an impartial arbiter, must ensure

that all rights are guaranteed so that a defendant has a fair trial. Again, although the

assignment of stand-by counsel may be a best practice and has a strong potential to

eliminate potential reversible or plain error when a defendant elects to proceed pro se,

in this case, appellant, who waived counsel, suffered no prejudice. Even if appellant

had stand-by counsel and even if the foregoing documents were admitted, we fail to see

how the outcome would have been different. Thus, any “error” in not assigning stand-by

counsel in this case was harmless, and did not result in reversible error.

       {¶43} For the foregoing reasons, appellant’s sole assignment of error is not well-

taken. The judgment of the Trumbull County Court of Common Pleas is affirmed.




CYNTHIA WESTCOTT RICE, J.,

THOMAS R. WRIGHT, J.,

concur in judgment only.




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