[Cite as State v. Smith, 2012-Ohio-5420.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98093




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                CHRISTOPHER SMITH
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-557167

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

        RELEASED AND JOURNALIZED: November 21, 2012
ATTORNEY FOR APPELLANT

Ruth Fischbein-Cohen
3552 Severn Road
Suite 613
Cleveland Heights, OH 44118

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Mary H. McGrath
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




KATHLEEN ANN KEOUGH, J.:

      {¶1} In 2011, defendant-appellant Christopher Smith was indicted on one count

of receiving stolen property in violation of R.C. 2913.51(A), two counts of failure to

comply in violation of R.C. 2921.331(B), and one count of driving under the influence in

violation of R.C. 4511.19(A)(1)(a).     The charges stemmed from Smith’s theft of a

vehicle and the subsequent police pursuit.
       {¶2} The trial court appointed counsel to represent Smith. However, on January

27, 2012, at a hearing regarding plea negotiations, defense counsel informed the court

that Smith had told her he wanted to represent himself. The trial court then engaged in

an extensive colloquy with Smith regarding his wish to proceed pro se. The court

advised Smith that he had an excellent lawyer and there were significant perils to

proceeding pro se, but Smith told the trial judge that he “fe[lt] more safe representing

myself.”   Smith told the court that he had represented himself in a 2004 case in

Oklahoma and although he was found guilty, he “came out with less time” than what a

lawyer would have been able to get for him.

       {¶3} The trial court then reviewed the charges and possible penalties with Smith

and discussed Smith’s possible defenses to the charges.         In response to further

questioning, Smith advised the court that he was aware of the evidentiary rules and

confident he could get the necessary evidence admitted at trial by asking appropriate

questions. The trial judge then advised Smith to consult with his lawyer again before

deciding to represent himself.

       {¶4} On February 6, 2012, before trial commenced, Smith told the trial court that

he wanted to proceed pro se because “I feel more confident representing myself.” The

court again had extensive discussions with Smith regarding his desire to proceed pro se.

The court advised Smith of the charges, any defenses to the charges, and the maximum

possible sentence.    The court also explained various trial procedures to him, and

questioned him regarding his understanding of those procedures.       Finally, the court
advised Smith of the significant dangers of self-representation and again urged him to let

his court-appointed lawyer represent him. Smith told the judge that he had no questions,

there was nothing the judge had told him that he did not understand, and no further

explanations about anything were needed. The trial judge then reviewed the waiver of

right to counsel and expression of intent to proceed pro se form with Smith, reading it to

him and questioning him to make sure that he understood what he had signed.

       {¶5} Smith proceeded pro se at trial; the jury subsequently convicted him of all

charges. The trial court sentenced him to an aggregate prison term of 36 months and

advised him that he could be subject to up to three years postrelease control.

       {¶6} Smith now appeals. In his single assignment of error, he argues that the trial

court erred in granting his request to represent himself because his waiver of his

constitutional right to counsel was not made knowingly and intelligently.

       {¶7} “Although a defendant may eloquently express a desire to represent himself,

a trial court must still satisfy certain parameters to ensure that the defendant’s waiver of

the constitutional right to counsel is made knowingly, intelligently, and voluntarily.”

State v. Moore, 8th Dist. No. 95106, 2012-Ohio-1958, 970 N.E.2d 1098, ¶ 43.

       {¶8} In State v. Buchanan, 8th Dist. No. 80098, 2003-Ohio-6851, ¶ 15-18, this

court discussed the trial court’s duty of ensuring that the defendant’s waiver of counsel is

knowingly, intelligently, and voluntarily made:

       “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 236, 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.
      * * * “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. [State v.] Martin, [8th Dist. No.
      80198, 2003-Ohio-1499], supra, citing State v. Jackson (2001), 145 Ohio
      App.3d 223, 227, 762 N.E.2d 438 [8th Dist.]. 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.

      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.”

      {¶9} In this case, Smith told the court on two separate occasions that he wished

to represent himself. On each occasion, the trial court engaged in a lengthy colloquy

with him. The trial court repeatedly advised him of the dangers of self-representation

and encouraged him to proceed with his court-appointed counsel.            The court also

reviewed the elements of the charges, any defenses to the charges, and the maximum

possible penalties with Smith. The court explained trial procedures to him, questioned
him regarding his understanding of those procedures, and advised him that he would be

held to the same standards as an attorney. The court also carefully reviewed the written

waiver of counsel and intent to proceed pro se form with Smith, reading it aloud and

ensuring that he understood it. Throughout these colloquys, Smith was adamant that he

wanted to represent himself and repeatedly told the judge that he understood the

ramifications of his decision.

       {¶10} Smith’s assertion that his many blunders at trial are “proof that he did not go

into this with open eyes” is belied by his repeated assertions to the trial judge that he

could best represent himself because he had done so in the past. As the state contends, it

would be difficult under these circumstances to imagine a court taking more time or

greater precaution to ensure that Smith’s decision to represent himself was made

knowingly, voluntarily, and intelligently.

       {¶11} Appellant’s assignment of error is therefore overruled.

       {¶12} Affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE

MELODY J. STEWART, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
