[Cite as State v. Taylor, 2013-Ohio-1300.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                            CASE NO. 13-12-35

        v.

LEWIS M. TAYLOR,                                       OPINION

        DEFENDANT-APPELLANT.




                           Appeal from Tiffin Municipal Court
                             Trial Court No. CRB 1200685

                       Judgment Reversed and Cause Remanded

                              Date of Decision: April 1, 2013




APPEARANCES:

        Kent D. Nord for Appellant

        Richard A. Palau and Drew E. Wood for Appellee
Case No. 13-12-35


WILLAMOWSKI, J.

       {¶1} Although originally placed on our accelerated calendar, we elect,

pursuant to Local Rule 12(5), to issue a full opinion in lieu of a judgment entry.

       {¶2} Defendant-Appellant, Lewis M. Taylor (“Taylor”), appeals the

judgment of the Municipal Court of Tiffin, Seneca County, finding him guilty of

domestic violence after a bench trial. On appeal, Taylor contends that the trial

court erred when it failed to find him indigent and appoint counsel as requested;

when it ordered him held without bond; that the conviction should be reversed

because there was insufficient evidence to support the conviction; and, the

decision was against the manifest weight of the evidence. For the reasons set forth

below, the judgment is reversed and remanded.

       {¶3} Taylor was charged with one count of domestic violence in violation

of R.C. 2919.25(A), a misdemeanor of the first degree. The charge was the result

of an altercation on August 4, 2012, between Taylor and his girlfriend, Neely

Phillips (“Phillips”), who is the mother of his child. Taylor and Phillips got in an

argument involving a cell phone. Phillips claimed that Taylor put his arm around

her neck to try to get the phone away from her.             (Trial Tr. 7-10)     She

acknowledged that she bit him to try to get him to let her go, but then she claimed

that Taylor hit her in the face. (Id.) Taylor alleged that Phillips was the aggressor

and that she took his cell phone and that she bit him when he tried to get it back.


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(Ex. B, Vol. Stmt. to Police) The police were called and the responding officers

took statements from both parties. The police reports and photos indicated that

Taylor had a bite mark on his inside forearm and that the left side of Phillip’s face

was swollen and red.

        {¶4} The officers took Taylor to the police station, where they learned that

he had active warrants from another county for felony theft.1 (Tr. 26) Taylor was

then placed under arrest.

        {¶5} The arraignment was held on August 6, 2012, via a group video-

conference with four defendants at the Seneca County Jail. (Arraignment Tr. 2)

The trial court addressed the group all together, explaining the basic procedures

that would occur during the arraignment. The trial court explained that when a

defendant’s name is called, the defendant will be asked how he/she wishes to

proceed, and explained the various plea options available (guilty, not guilty, no

contest) and what they meant. The court explained that if a defendant pleads

guilty or no contest, the trial court would dispose of the case immediately; if a

defendant pleads not guilty, his/her case “will be scheduled for a trial at a later

date which is convenient for both you and for the prosecutor.” (Id. at 4)

        {¶6} The trial court further told the entire group:

        Now, before you enter a plea you should be informed you have a
        right to hire an attorney, even if you intend to plead guilty or no
1
  The pending charges were for theft in Butler County; Taylor claimed he did not know anything about
them. (Tr. 39) There was no other information concerning these warrants.

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       contest at a later time. And you have a right to a reasonable
       continuance of this arraignment here today in order to speak with
       and hire an attorney.

       In any case in which you could be imprisoned, you have a right to
       have an attorney assigned to represent you if you can demonstrate
       that you cannot afford to hire one.

(Id.) The trial court also informed the defendants that they had the right to remain

silent; they had the right to a trial by a jury; and, if convicted of a traffic violation,

the conviction would be sent to the Ohio Bureau of Motor Vehicles.

       {¶7} Taylor was the first defendant to be arraigned. The city prosecutor

read the charge in the complaint and stated that the violation of R.C. 2919.25(A),

domestic violence, was a misdemeanor of the first degree, which carried with it a

maximum penalty of up to six months incarceration, a fine of up to $1,000, a

permanent mandatory weapons disability, and that a subsequent conviction for

domestic violence is enhanceable to the felony level. Taylor indicated that he had

received a copy of the complaint and understood the charges, penalties, and plea

options. (Tr. 7)

       THE COURT: What would you like to do? Do you wish to enter a
       plea or do you wish for a short continuance in order to speak with an
       attorney?

       MR. TAYLOR:          Uhm, how – how long is a short continuance
       exactly?

       THE COURT: A week.

       MR. TAYLOR: I’ll just go ahead and plead not guilty.

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         THE COURT: I’ll accept your plea of not guilty. I’m gonna direct
         that this matter be set for trial within 90 days of today’s date.

(Id. at 8)

         {¶8} The State then presented its position on bond, requesting bond in the

amount of $10,000 and a condition of no contact with the victim. Because of

Taylor’s prior convictions, probation violations, the outstanding warrant, and

because the trial court had a “bad feeling” about the matter, it decided to remand

him to custody with no bond, pending trial.2 (Id. at 10) The trial court then stated,

“Thank you. Good luck. We’ll see you in a few weeks.” (Id.)

         {¶9} The court set the trial date for August 16, 2012, ten days from the

arraignment date.3 On the morning of the trial, the State and all of its witnesses

were present and ready to proceed. When the trial court asked Taylor if he was

ready, the following exchange occurred.

         THE COURT: Mr. Taylor?

         MR. TAYLOR: No, your Honor.

         THE COURT: No? Any reason why not?

         MR. TAYLOR: I guess I misunderstood you last week at my initial
         hearing about counsel. Uhm, I heard – I heard you state
         continuance. I did not understand that meant that, I would like –
2
  The trial court also decided to continue the Crim.R. 4 matter on the outstanding warrants until this case
was resolved. (Tr. 10) The court stated “I don’t want to give him up until we get our case taken care of.”
3
  There is no definitive information in the record as to when, or if, Taylor was informed as to the trial date.
A “Notice of Hearing” setting the trial date was filed on August 6th by the Clerk of Court Assignment
Commissioner. There was no “proof of service” included in the notice, just a “cc” to “Defendant” and
“Prosecutor.” Taylor and Phillip’s home address was on the document.

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          THE COURT: Well, I entered a not guilty plea and we ordered it be
          set for trial and here we are because you’re in custody.

          MR. TAYLOR: Yes, sir. And I wasn’t aware that for – for me to
          get counsel. I realized I didn’t have counsel after I got back.

          THE COURT: Mr. Taylor, I don’t just hand them out. You gotta
          ask me for them.

          MR. TAYLOR: I – I – I –

          THE COURT: If you want an attorney and you don’t have the
          means, which I’m assuming you’re trying to kind of allude to, I
          mean, I don’t know how I’m supposed to figure that out.

          MR. TAYLOR: No, I do not have the means. I --

(Trial Tr. 4-5) The trial court then noted that everyone was present and ready to

proceed and that the police officers were there at taxpayer expense.

          THE COURT: Mr. Taylor, this is what I’m going to do. I’m gonna
          give you a few minutes to talk to the prosecutor. If you come on up
          with something you can agree on, great. Otherwise, I believe that
          we’re going to proceed.

(Tr. 5)

          {¶10} The trial court then continued the trial for a few minutes to allow

Taylor and the prosecutor to try to reach an agreement. Soon thereafter, the trial

court was informed that no agreement had been reached and they proceeded to

trial, with Taylor acting as his own attorney. (Id.)

          {¶11} The State offered the testimony of Phillips and the two police

officers who responded that evening, as well as five photographs of Phillips

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(showing a swollen area on her side jaw) and one of Taylor’s arm (showing a bite

mark on the inside of his forearm). Taylor asked a few questions of the witnesses

on cross-examination. He also called Phillips back to the stand when it was his

turn to present his case, as well as a witness who was present that evening

(although the witness claimed he “did not remember” what happened that night,

and offered no definitive testimony).

       {¶12} The trial court found Taylor guilty and sentenced him to 180 days in

jail, with 120 conditionally suspended.        He was also placed on two years’

probation and ordered to pay a $150 fine, plus costs, and have no contact with

Phillips.

       {¶13} On August 30, 2012, Taylor sent a hand-written letter from the

Seneca County Jail to the Clerk of Courts, stating he would like to appeal his

conviction and he would like to have appointed counsel since he was incarcerated

and indigent. The letter was accepted as his notice of appeal, and Taylor was

subsequently assigned court-appointed counsel. Taylor’s counsel filed a formal

notice of appeal, as well as the other required paperwork, along with a Motion to

Stay Further Execution of Sentence (noting that Taylor had already served forty-

seven days in jail.) This Court denied the motion on October 12, 2012, for failure

to comply with App.R. 8(B) and Loc.R. 16(A) because the motion did not reflect

that it had been first filed in the trial court, and it was not accompanied by copy of


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a trial court judgment denying the request for a stay. Furthermore, Taylor’s 60

days of incarceration would have been completed before this Court had the

opportunity to file its judgment on this motion.

       {¶14} Taylor now appeals his conviction, raising the following three

assignments of error for our review.

                             First Assignment of Error

       The trial court erred when it failed to qualify [Taylor] for
       indigency and to appoint counsel for him.

                            Second Assignment of Error

       The conviction in the trial court should be reversed because it is
       against the manifest weight of the evidence and because the
       evidence supporting it was insufficient as a matter of law.

                            Third Assignment of Error

       The trial court erred when it held [Taylor] without bond.

       {¶15} In the first assignment of error, Taylor claims that the trial court

erred when it forced him to go to trial without being represented by an attorney

and when it denied his request to have counsel appointed because he was indigent.

The State counters that the trial court could “infer” Taylor’s waiver of counsel,

and that a defendant may not take advantage of the trial court by claiming his right

to counsel on the day of trial in order to frustrate or delay the judicial process.

       {¶16} The Sixth Amendment to the United States Constitution, and Section

10, Article 1 of the Ohio Constitution guarantee the right to assistance of counsel

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in all criminal prosecutions that may result in jail sentences. State v. Wellman, 37

Ohio St.2d 162, 171 (1974), citing Argersinger v. Hamlin, 407 U.S. 25 (1972).

“The constitutionally protected right to the assistance of counsel is absolute [and]

absent a knowing and intelligent waiver, no person may be imprisoned for any

offense * * * unless he was represented by counsel at his trial.” State v. Tymcio, 42

Ohio St.2d 39, 43 (1975), citing Argersinger at 37 and Gideon v. Wainwright, 372

U.S. 335 (1963). Although a criminal defendant may waive the right to counsel,

the court must be satisfied that the defendant made an intelligent and voluntary

waiver of the right with the knowledge that he will have to represent himself. State

v. Ebersole, 107 Ohio App.3d 288, 293 (3d Dist. 1995), citing Faretta v.

California, 422 U.S. 806 (1975); State v. Gibson, 45 Ohio St.2d 366 (1976).

        {¶17} Furthermore, Crim.R. 44, which covers the assignment of counsel

and waiver of counsel, provides: “Where 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.”4 Crim.R. 44(B).                          The rule further

provides that “[w]aiver of counsel shall be in open court and the advice and waiver

shall be recorded as provided in Rule 22.” Crim.R. 44(C).


4
  Crim.R. 2(C) defines “serious offense” as “any felony, and any misdemeanor for which the penalty
prescribed by law includes confinement for more than six months,” while Crim.R. 2(D) defines “petty
offense” as “a misdemeanor other than a serious offense.” In the case at bar, the charge against appellant
was a “petty” offense.

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      {¶18} 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, quoting Von Moltke v. Gillies, 332 U.S. 708, 723 (1948);

State v. Suber, 154 Ohio App.3d 681, 2003–Ohio–5210, ¶ 15 (10th Dist.). 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.” State v. Clemons, 3d Dist. No. 4-11-23, 2012-Ohio-2127, ¶

3, quoting Faretta, 422 U.S. at 835.

      {¶19} In Taylor’s case, there was no pre-trial inquiry made to determine

whether he understood the ramifications of proceeding pro se and the possible

consequences thereof. In fact, there was not even a definitive question asked to

verify that Taylor wanted to proceed to represent himself throughout all of the

proceedings and at trial. The trial court only asked if he wanted to have a short

continuance to obtain counsel for the arraignment. The trial court then inferred a

complete waiver of counsel, without verifying Taylor’s intent, or providing him

with any required warning or admonition.


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       {¶20} It is true that wavier of the right to counsel can be express or implied.

State v. Glasure, 132 Ohio App.3d 227, 234 (7th Dist. 1999). However, courts are

to indulge every reasonable presumption against the waiver of a fundamental

constitutional right including the right to be represented by counsel. State v. Dyer,

117 Ohio App.3d 92, 95-96 (2d Dist. 1996), citing Brewer v. Williams, 430 U.S.

387 (1997). The state bears the burden of overcoming presumptions against a

valid waiver. Id.

       {¶21} The trial court’s brief mention of the fact that Taylor was entitled to

have counsel did not constitute a valid waiver. There was nothing in the record to

indicate that Taylor was competently and intelligently choosing self-

representation, or that he was made aware of the dangers and disadvantages of

self-representation.

       {¶22} And, nothing in Taylor’s subsequent behavior after the arraignment

could be construed as a waiver of his right to counsel. The State relies upon the

Tenth District Court of Appeal’s decision in State v. Hook, and a handful of other

cases, to attempt to justify the trial court’s denial of Taylor’s request for a

continuance in order to obtain counsel. See Hook, 33 Ohio App.3d 101, 103 (10th

Dist. 1986). However, Hook and the other cases cited by the State are completely

distinguishable and not on point in that the defendants usually had had a lengthy

period of time to obtain counsel but purposely waited until the last minute to seek


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a continuance; the trial court usually had already granted at least one or more

previous continuances; the defendants repeatedly had been given detailed

warnings about the risks of proceeding without counsel; the defendants usually

were not incarcerated, so they had the ability to obtain counsel unhindered; often

the defendants were not indigent and had the means to hire counsel; and, in many

cases, the defendants had affirmatively waived representation by counsel on the

record, and then they changed their mind at the last minute, often for purposes of

delay.

         {¶23} The defendant in Hook had been found guilty of operating a

gambling house and gambling, but that conviction was overturned and a new trial

granted. Id. On the date of new trial, Hook asked for a continuance to obtain

counsel. The court noted that the defendant was familiar with the justice system,

the matter had previously been tried, and he had had adequate time (two and one-

half months when he was not incarcerated) to obtain counsel, but failed to do so.

         {¶24} In State v. Jackson, 10th Dist. No. 89AP-1344, (Sept. 4, 1990), 1990

WL 129284, the defendant released his court-appointed attorney and said he

would retain private counsel. The court noted that: “Defendant was provided with

appointed counsel, but chose instead to seek private representation. He was given

a reasonable time, two months, to obtain private counsel or request reappointment

of public counsel, yet he failed to do so.” Id. In this case, Taylor was never given


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court-appointed council, he did not voluntarily release his counsel, and he did not

have two-months to try to obtain representation.

      {¶25} The Ninth District Court of Appeals also affirmed a trial court’s

denial of a continuance to obtain counsel, but again, the facts are completely

distinguishable. See State v. Crebs, 42 Ohio App.3d 50 (9th Dist. 1987). In

Crebs, the record indicated that the defendant had more than a month from the

time he was first summoned to court until the scheduled date of trial to secure

counsel; he had the responsibility for retaining counsel of his choice in time to

meet the scheduled trial date; he had already sought and been granted one

continuance for the purpose of seeking counsel; and, he then returned to court

without being represented by counsel. Id.

      {¶26} In another case relied upon by the State, Loudonville v. McClure, 5th

Dist. No. CA-952, (June 8, 1990), 1990 WL 84169, the defendant was also

charged with domestic violence. However, the one paragraph decision concerning

this issue in the twenty-year old, Fifth District case did not provide sufficient

information concerning the facts to determine whether this decision was in any

way relevant. There was no information whatsoever as to what the defendant had

been told concerning his right to counsel, whether he had previously waived his

right to counsel, what opportunity he had had to obtain counsel (although it would

appear that the defendant was not incarcerated, since he received a suspended


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sentence), or why the court might have thought the request for counsel on the day

of the day of trial was for purposes of delay. The Fifth District Court of Appeals

stated that it overruled the assignment of error “[u]pon the authority of Crebs, as

well as State v. Holmes (1987), 36 Ohio App.3d 44 and State v. Unger (1981), 67

Ohio St.2d 65.” However, as noted above, Crebs had already had at least one

other continuance to obtain counsel and the issues concerning the requests for

continuances in Holmes and Unger had nothing to do with representation by

counsel, but merely discussed a trial court’s discretion to grant a continuance.

       {¶27} In State v. Kitsemble, 3d Dist. No. 10-98-05 (Sept. 30, 1998), 1998

WL 682253, this Court found that a defendant had waived his right to counsel by

failing to obtain counsel, but only after the trial court had granted one continuance

after another, over a period of over eight months. The trial court repeatedly

warned the defendant of the dangers of not having legal representation and urged

him to find an attorney. Id. The defendant first asked for a continuance to obtain

counsel and represented that he could afford to hire his own attorney; then he

showed up for several hearings insisting that he wanted to represent himself; then

he inquired about the paperwork to obtain a court-appointed attorney; then he

claimed he had retained two attorneys, but it turned out that they were not licensed

to practice in Ohio; and then he stated he wanted counsel but couldn’t find any

that would properly protect his rights. The trial court finally indicated that it could


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not delay trial any longer and would not grant another continuance, although it did

grant a recess to give him one more opportunity to call an attorney.       Id. While

this court found that the defendant had waived his right to obtain counsel, it was

only after a lengthy process of being sure that he understood the dangers of not

obtaining counsel, and giving him every opportunity possible to retain counsel.

       {¶28} The facts and circumstances in these cases, where waiver was

implied, bear no resemblance to the facts in this case. Although the trial court did

perfunctorily tell Taylor that he was entitled to have an attorney, it never discussed

the dangers or consequences of failing to obtain representation with him, nor did

the trial court follow any of the procedures required by Crim.R. 44 and Crim.R.

22. The trial court never obtained a waiver of counsel from Taylor, either written

or oral.

       {¶29} In fact, the trial court never specifically asked Taylor if he intended

to seek representation for trial. Taylor was asked whether he wished to enter a

plea, or, if he wanted to have “a short continuance in order to speak with an

attorney.”    Taylor did have prior criminal convictions, so it might be

understandable that he felt he could enter a “not guilty” plea without the need for a

continuance or representation by counsel. The transcript establishes that this is all

he did at that time. There was nothing in the record that would alert Taylor to the

fact that if he decided to enter a plea without requesting a continuance for the


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arraignment, that he would be waiving his only opportunity to be represented by

counsel at trial. When he made that decision, Taylor did not know that the trial

would be held within ten days, and he did not know that he would be held without

bond, impeding his ability to try to make arrangements to obtain counsel.

       {¶30} On the morning of the trial, Taylor tried to explain to the trial court

that he had “misunderstood” at the initial hearing about counsel. (Tr. 4) This was

the first continuance requested, it had only been ten days since the arraignment,

and there was no evidence or indication in the record that Taylor made his request

for counsel for purposes of delay. The State had the burden to prove that Taylor

had affirmatively waived counsel and it did not meet that burden. The trial court’s

own journal entry form asks the trial court to indicate whether the defendant

appeared at the arraignment (1) “with an attorney,” or if (2) defendant had

“waived counsel,” and, if so, whether it was “in writing” and/or “following

discussion.” (Aug. 16, 2012 J.E.) None of the choices were checked for Taylor

because he did not appear with an attorney, and he did not waive counsel, either in

writing or following discussion with the trial court. (Id.)

       {¶31} The State also argues that it is within a trial court’s “discretion” to

determine its schedule and to decide whether or not to grant continuances. While

that is true, a trial court’s discretion to control its docket does not usurp a

defendant’s fundamental constitutional right to be represented by counsel, where


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the defendant is entitled by law to representation by counsel. See Crim.R. 44.

Because the trial court denied Taylor this constitutional right, the first assignment

of error is sustained. Having sustained the first assignment of error, the second

and third assignments of error are moot and are therefore overruled.

       {¶32} Having found error prejudicial to the Appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                           Judgment Reversed and
                                                                Cause Remanded

ROGERS and SHAW, J.J., concur.

/jlr




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