[Cite as State v. Black, 2012-Ohio-110.]




          IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

STATE OF OHIO                                              :

        Plaintiff-Appellee                                 :        C.A. CASE NO.        2011 CA 6

v.                                                         :        T.C. NO.   10CRB1350

JOSEPH S. BLACK                              :                 (Criminal appeal from
                                                                      Municipal Court)
        Defendant-Appellant                                :

                                                           :

                                           ..........

                                           OPINION
                                                      th
                          Rendered on the        13             day of     January   , 2012.

                                           ..........

CATHY J. WEITHMAN, Atty. Reg. No. 0020889, Assistant City Prosecutor, 201
West Court Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

JEREMIAH J. DENSLOW, Atty. Reg. No. 0074784, First National Plaza, 130 W.
Second Street, Suite 1600, Dayton, Ohio 45402
     Attorney for Defendant-Appellant

                                           ..........

DONOVAN, J.

        {¶ 1} Defendant-appellant Joseph S. Black appeals the trial court’s

revocation of his “pretrial probation” in Case No. 2010 CRB 1350. Black filed a

timely notice of appeal with this Court on January 31, 2011.
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                                           I

         {¶ 2} On December 7, 2010, Black pled guilty to one count of domestic

violence, in violation of R.C. 2919.25(A), a misdemeanor of the first degree. As a

result, the trial court placed Black on “pretrial probation,” a diversionary style

program utilized by the Champaign County Municipal Court.           The conditions of

Black’s “pretrial probation” were as follows:

         {¶ 3} 1) Black was ordered to not have any contact with the victim for thirty

days; and 2) Black was ordered to attend anger management counseling and follow

any recommendations arising therefrom.

         {¶ 4} On December 26, 2010, Officer Collins of the St. Paris Police

Department observed Black drive by the apartment complex in which the victim

allegedly lived. Officer Collins initiated a traffic stop of Black in order to question

him regarding his presence near the victim’s residence. Ultimately, Officer Collins

cited Black for violation of a protection order but did not arrest him. As a result, on

December 28, 2010, Black was charged by complaint with one count of violation of

a protection order in Case No. 2010 CRB 1450 in Champaign County Municipal

Court.

         {¶ 5} Black appeared before the trial court on January 4, 2011, without

counsel. On that date, the trial court revoked Black’s “pretrial probation” in Case

No. 2010 CRB 1350 and sentenced him to 180 days in jail. The trial court ordered

him to pay a fine of $150.00 as well. The trial court reasoned that Black had

violated the “no contact” term of his “pretrial probation” in Case No. 2010 CRB 1350

when he drove by the victim’s residence. We note that no evidence was adduced
                                                                                      3

at the revocation hearing which established that Black observed or had any contact

with the victim on December 26, 2010. In fact, the minimal evidence adduced

supported a finding that the victim was not present when Black drove by her

residence. Black pled not guilty to the count for violation of a protection order in

Case No. 2010 CRB 1450, and the court set the trial date on that charge for

January 10, 2011.

       {¶ 6} Black was subsequently brought before the court on January 18,

2011, at which time the count for violation of a protection order was dismissed

without a hearing in Case No. 2010 CRB 1450.                Additionally, after serving

approximately fourteen days of his 180-day sentence, Black was released from jail,

but placed on a five year probationary term.

       {¶ 7} In the instant appeal, Black argues that the trial court erred when it

revoked his “pretrial probation” in Case No. 2010 CRB 1350.            Accordingly, the

actions taken by the trial court in Case No. 2010 CRB 1450 regarding the dismissed

count for violation of a protection order are not at issue in this appeal.

                                            II

       {¶ 8} Black’s first assignment of error is as follows:

       {¶ 9} “THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT THE

RIGHT TO COUNSEL AT THE SENTENCING HEARING, WITHOUT A

KNOWING, INTELLIGENT AND VOLUNTARY WAIVER OF HIS RIGHT TO

COUNSEL.”

       {¶ 10} In his first assignment, Black contends that the trial court erred when it

failed to advise him of his right to counsel before it sentenced him on January 4,
                                                                                    4

2011, in Case No. 2010 CRB 1350 for violating the terms of his “pretrial probation.”

      {¶ 11} In State v. Byrd, Montgomery App. No. 23154, 2010-Ohio-491, we

addressed the failure of the trial court to advise a defendant of his right to counsel

before being sentenced at a revocation hearing, wherein we stated the following:

      {¶ 12} “Pursuant to the Sixth and Fourteenth Amendments to the United

States Constitution and Section 10, Article I of the Ohio Constitution, a criminal

defendant has the right to assistance of counsel for her defense.          Gideon v.

Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 779; State v. Martin, 103

Ohio St.3d 385, 2004-Ohio-5471, ¶22.

      {¶ 13} “The right to counsel applies in misdemeanor cases, including cases

involving petty offenses, that result in imprisonment. Argersinger v. Hamlin (1972),

407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530; Scott v. Illinois (1979), 440 U.S. 367,

99 S.Ct. 1158, 59 L.Ed.2d 383; State v. Downie, 183 Ohio App.3d 665,

2009-Ohio-4643, ¶17, citing State v. Caynor (2001), 142 Ohio App.3d 424. The

rule extends to cases involving a suspended sentence, capable of subsequent

revocation, resulting in incarceration. Alabama v. Shelton (2002), 535 U.S. 654,

122 S.Ct. 1764, 152 L.Ed.2d 888; State v. Davis, Montgomery App. No. 23248,

2009-Ohio-4786, ¶32.

      {¶ 14} “Crim.R. 2(D) defines a ‘petty offense’ as ‘a misdemeanor other than

a serious offense.’ Under Crim.R. 2(C), a ‘serious offense’ is ‘any felony, and any

misdemeanor for which the penalty prescribed by law includes confinement for

more than six months.’     Where, as here, a defendant is charged with a ‘petty

offense,’ Crim.R. 44(B) governs the appointment of counsel. That Rule provides:
                                                                                    5

      {¶ 15} “‘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.’

Crim.R. 44(B).

      {¶ 16} “Under Crim.R. 44(B), the prohibition against confining a defendant

who lacks counsel and has not validly waived his or her right to counsel applies

regardless of whether the defendant is indigent. See State v. Albert, Montgomery

App. No. 23148, 2010-Ohio-110, ¶9; State v. Hill, Champaign App. No. 2008 CA 9,

2008-Ohio-6040, ¶22. ‘At the core of Crim.R. 44(B) is the offender’s inability to

obtain counsel. In [State v.] Tymcio [(1975)], [42 Ohio St.2d 39,] the Supreme

Court of Ohio held that the trial court in a criminal case must inquire fully into the

circumstances surrounding an accused’s inability to obtain counsel and,

consequently, the accused’s need for assistance in employing counsel or for

receiving court-appointed counsel. [Tymcio,] 42 Ohio St.2d at paragraph three of

the syllabus. “In its reasoning the Supreme Court made no distinction between

indigents and non-indigents, basing the holding on the inability of defendant to

obtain legal counsel for whatever reason, financial or otherwise.       Similarly, the

Supreme Court made no distinction between serious and petty offenses.” [State

v.] Kleve, 2 Ohio App.3d [407,] 409, 442 N.E.2d 483.’ Springfield v. Morgan, Clark

App. No. 07CA61, 2008-Ohio-2084, ¶7.

      {¶ 17} “Crim.R. 32.3(C), captioned ‘Confinement in petty offense cases,’
                                                                                    6

further provides: ‘If confinement after conviction was precluded by Crim.R. 44(B) ,

revocation of probation shall not result in confinement.        If confinement after

conviction was not precluded by Crim.R. 44(B), revocation of probation shall not

result in confinement unless, at the revocation hearing, there is compliance with

Crim.R. 44(B).’

      {¶ 18} ”We conduct an independent review to determine whether a

defendant voluntarily, knowingly, and intelligently waived her right to counsel based

on the totality of the circumstances. State v. Gatewood, Clark App. No. 2008 CA

64, 2009-Ohio-5610, ¶33.”

      {¶ 19} It is undisputed that Black was not represented by counsel at the

revocation hearing, nor did the trial court make any attempt to advise Black of his

right to counsel at that time before it sentenced him to a 180 day jail term. In fact,

the only mention made of counsel occurred when the trial court asked Black if he

wanted the court to appoint counsel to represent him at his trial on January 10,

2011, for violation of a protection order in Case No. 2010 CRB 1450. We note that

Black merely stated that he did not require legal representation for his January 10,

2011, trial because there was no protection order filed against him when he

allegedly drove by the victim’s residence.

      {¶ 20} Since the record does not establish that Black knowingly, intelligently,

and voluntarily waived his right to counsel prior to the revocation of his “pretrial

probation” and the imposition of the jail sentence and fine in Case No. 2010 CRB

1350, we must reverse. In such a case, the court cannot infer a waiver of counsel.

Under Crim.R. 32.3, the trial court was not permitted to impose the 180-day
                                                                                  7

sentence due to a purported violation of the terms of Black’s “pretrial probation.”

Because Black did not knowingly, intelligently, and voluntarily waive his right to

counsel at the revocation hearing, the court could not lawfully impose a jail

sentence at that time. Crim.R. 32.3(C).

      {¶ 21} Black’s first assignment of error is sustained.

                                          III

      {¶ 22} Black’s second assignment of error is as follows:

      {¶ 23} “THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED

APPELLANT’S DUE PROCESS RIGHTS WHEN IT REVOKED APPELLANT

FROM THE PRETRIAL DIVERSION PROGRAM, DID NOT PROVIDE A HEARING

ON THE MATTER, AND THE VIOLATION WAS NOT SUPPORTED BY A

PREPONDERANCE OF THE EVIDENCE.”

      {¶ 24} In light of our disposition with respect to Black’s first assignment of

error, his second assignment is rendered moot.

                                          IV

      {¶ 25} Black’s first assignment of error having been sustained, his sentence

is reversed and vacated.      This matter is remanded for a revocation hearing

wherein Black should be afforded counsel.

                                    ..........

FAIN, J. and FROELICH, J., concur.

Copies mailed to:

Cathy J. Weithman
Jeremiah J. Denslow
Hon. Susan J. Fornof-Lippencott
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