[Cite as Garfield Hts. v. Williams, 2016-Ohio-381.]


                      Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 102279



                                    CITY OF GARFIELD HEIGHTS

                                                            PLAINTIFF-APPELLEE

                                                      vs.

                                         ROBERT S. WILLIAMS

                                                            DEFENDANT-APPELLANT



                                             JUDGMENT:
                                        AFFIRMED IN PART AND
                                          REVERSED IN PART



                                        Criminal Appeal from the
                                     Garfield Heights Municipal Court
                                         Case No. CRB-1402187

        BEFORE: E.A. Gallagher, P.J., Kilbane, J., and McCormack, J.

        RELEASED AND JOURNALIZED:                     February 4, 2016
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: Sarah E. Gatti
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE

Patrick J. Cooney
Garfield Heights Prosecutor
5407 Turney Road
Garfield Heights, Ohio 44125




EILEEN A. GALLAGHER, P.J.:
       {¶1} Defendant-appellant Robert Williams appeals his misdemeanor conviction from

Garfield Heights Municipal Court for violating that city’s ordinance against harboring pit bull

dogs. Williams argues that the trial court violated his Sixth Amendment right to counsel and that

the city failed to present sufficient evidence to support his conviction. For the following reasons,

we reverse in part and affirm in part.

       Facts and Procedural Background

       {¶2} Williams was cited with one count of violating Garfield Heights Municipal

Ordinances 505.215(A) that states that “[n]o person shall own, keep, harbor or have on public or

private property a pit bull dog” as defined by the ordinance. A violation of the ordinance is a

third-degree misdemeanor.

       {¶3} Williams entered a plea of not guilty and signed an “Entry of plea and

acknowledgment of rights” form wherein he acknowledged that he had been advised in open court

of various rights including his right to be represented by a lawyer, his right to a reasonable

continuance to obtain a lawyer and his right to have a lawyer appointed for him if he was unable

to afford one. The record contains no further mention of Williams’ right to counsel and the case

proceeded to a bench trial where the following facts were elicited.

       {¶4} On August 13, 2014, two pit bulls entered Aisha Crawford’s backyard from Christine

Yancey’s yard through a hole in a fence separating the two properties.   The pit bulls attacked and

injured Crawford’s dog before they were restrained and recovered by Williams.         The evidence

revealed that the pit bulls were owned by Yancey’s partner who frequently stays at Yancey’s

home and brings her pit bulls to the home.    Williams is Yancey’s uncle. He resides in Yancey’s

home and he assists in caring for Yancey’s children.
       {¶5} Crawford testified that the pit bulls are at Yancey’s home “all the time” and she has

observed Williams as their “primary caretaker” who takes them outside.       Williams conceded that

he is asked to take the pit bulls outside.   At the time of the incident, Yancey and her partner had

earlier left the home leaving Yancey’s two children and the pit bulls in Williams’ care.     Williams

responded to retrieve the pit bulls when one of Yancey’s children informed him they had escaped.

 Following the incident, Yancey’s partner removed the pit bulls from the home.

       {¶6} The trial court found Williams guilty of violating Garfield Heights Ordinances

505.215(A) and imposed a 60-day jail term with all 60 days suspended. The trial court ordered

Williams to pay Crawford restitution in the amount of $1,354.16, imposed one year of community

control sanctions requiring “active reporting” and prohibited Williams from harboring pit bulls or

other dangerous animals within the city.

       Law and Analysis

       Right to Counsel

       {¶7} In his first assignment of error, Williams argues that the trial court violated his Sixth

Amendment right to counsel by failing to obtain a valid waiver of counsel.

       {¶8} Included in the trial court’s record for this case is a document, not identified by a case

caption or case number, dated August 27, 2014, and ostensibly signed by Williams.                 This

document is captioned “ENTRY OF PLEA AND ACKNOWLEDGMENT OF RIGHTS” and

includes the following language:

       The undersigned further acknowledges that he/she has been advised in open court
       of the following:

       1. My right to a trial, including my right to trial by jury if the offense(s) charged is
       (are) more serious than a minor misdemeanor;

       2. My right to be represented by a lawyer;
       3. My right to have a reasonable continuance to obtain a lawyer;

       4. My right to have a lawyer appointed for me if I am unable to afford a lawyer; * *

       *.

       {¶9} The Sixth and Fourteenth Amendments to the United States Constitution guarantee

that persons brought to trial in any state or federal court must be afforded the right to the

assistance of counsel before they can be validly convicted and punished by imprisonment. See

Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Gideon v. Wainwright, 372

U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In some cases, defendants choose to forgo that right

and represent their own interests before a criminal tribunal. That is also their right under the

constitutions of this state and this nation. State v. Reed, 74 Ohio St.3d 534, 535, 660 N.E.2d 456

(1996), citing Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). “If

a trial court denies the right to self-representation, when properly invoked, the denial is per se

reversible error.” State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 32,

citing Reed.

       {¶10} When defendants manage their own defense, however, they relinquish, “as a purely

factual matter, many of the traditional benefits associated with the right to counsel.” Faretta at

834. For this reason, in order to represent themselves, defendants must “knowingly and

intelligently” forgo those relinquished benefits. Id. at 835. Although defendants do not need to

have the skill and experience of a lawyer to competently and intelligently choose

self-representation, they should be made aware of the dangers and disadvantages of

self-representation, so that the record establishes that they know what they are doing and their

“choice is made with eyes open.” Id.
       {¶11} 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, 345 N.E.2d 399 (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.” 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, 816 N.E.2d 227, ¶ 40.

       {¶12} In the context of petty offenses, Crim.R. 44 provides in relevant part:

       (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 as provided in Rule 22. In addition, in serious offense
       cases the waiver shall be in writing.

       {¶13} Therefore, pursuant to Crim.R. 44 and 22, the waiver of counsel must take place in

open court, must be recorded, and in cases of serious offenses, the waiver must be in writing. See

State v. Mascaro, 81 Ohio App.3d 214, 216, 610 N.E.2d 1031 (9th Dist.1991); Garfield Hts. v.

Brewer, 17 Ohio App.3d 216, 217, 479 N.E.2d 309 (8th Dist.1984).
       {¶14} A petty offense is defined as “a misdemeanor other than a serious offense.” Crim.R.

2(D). A serious offense “means any felony, and any misdemeanor for which the penalty

prescribed by law includes confinement for more than six months.” Crim.R. 2(C).           Pursuant to

R.C. 2929.24(A)(3), the maximum term of imprisonment for a misdemeanor of the third degree is

“not more than sixty days.” Therefore, the charge against Williams was a petty offense governed

by Crim.R. 44(B) and (C).

       {¶15} In this instance no waiver of counsel was obtained from Williams. The city argues

that Williams waived his right to counsel by signing the above quoted acknowledgment of rights

form and through which he entered a not guilty plea.      However, it is a basic premise of the law

that waivers of constitutional rights are not presumed; in fact, we engage in every reasonable

presumption against the waiver of rights. See State v. Underwood, 124 Ohio St.3d 365,

2010-Ohio-1, 922 N.E.2d 923, ¶ 31. The word “waive” or any derivation thereof does not appear

on the acknowledgment of rights form at all. This court has refused to find a waiver of counsel

under nearly identical circumstances. State v. Coleman, 8th Dist. Cuyahoga. No. 99369,

2013-Ohio-4792, ¶ 7-11. As in Coleman, the acknowledgment of rights form in this instance

was insufficient to constitute a waiver of Williams’ right to counsel.

       {¶16} Despite the lack of a valid waiver the city argues that Williams’ Sixth Amendment

rights were not violated because the trial court did not impose a sentence of imprisonment.       The

United States Supreme Court has held that the right to counsel in misdemeanor cases attaches

only in cases leading to “actual imprisonment.” Alabama v. Shelton, 535 U.S. 654, 661, 122 S.Ct.

1764, 152 L.Ed.2d 888 (2002); Scott v. Illinois, 440 U.S. 367, 373-374, 99 S.Ct. 1158, 59 L.Ed.2d

383 (1979); Argersinger v. Hamlin, 407 U.S. 25, 33, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).

This court has held that a trial court’s failure to obtain a valid waiver of counsel in a petty offense
case prevents the trial court from imposing a sentence on the defendant but does not vacate the

entire conviction.   Parma v. Wiseman, 8th Dist. Cuyahoga No. 102404, 2015-Ohio-4983, ¶ 13,

citing Lyndhurst v. Di Fiore, 8th Dist. Cuyahoga No. 93270, 2010-Ohio-1578.                     This

interpretation is consistent with the wording of Crim.R. 44(B) that states that a trial court “may”

assign counsel where a defendant charged with a petty offense is unable to obtain counsel but is

barred from imposing a sentence of confinement without obtaining a waiver of counsel.

       {¶17} However, in Shelton, the United States Supreme Court held that a suspended term

of imprisonment, contingent on compliance with probation, constitutes a prison term imposed for

the offense of conviction and must be treated as actual imprisonment. Shelton at 662.             In

Lakewood v. McDonald, 8th Dist. Cuyahoga No. 84465, 2005-Ohio-394, this court held that the

imposition of community control sanctions, the violation of which could lead to the possibility of

jail time, was the functional equivalent of the suspended sentence in Shelton. Id. at ¶ 10.

Because the trial court did not advise McDonald of his right to counsel or properly obtain

McDonald’s waiver of that right, we vacated the community control sanction. Id. at ¶ 11.

Importantly, we held that the remaining sanctions imposed by the court in McDonald remained

unaffected by the violation of the right to counsel. Id. at ¶ 11; see also State v. Boughner, 11th

Dist. Geauga No. 98-G-2161, 1999 Ohio App. LEXIS 6116, *26 (Dec. 17, 1999).

       {¶18} Therefore, we conclude that the trial court’s imposition of the suspended jail term

and corresponding community control sanction where Williams was not represented by counsel

and a valid waiver was not obtained violated Crim.R. 44(B) and Williams’ Sixth Amendment

right to counsel.    Consistent with McDonald and Wiseman, we vacate only these sanctions and

note that the conviction and the trial court’s order of restitution remain valid.

       {¶19} Williams’ first assignment of error is sustained in part, and overruled in part.
       Sufficiency of the Evidence

       {¶20} In his second assignment of error, Williams argues that his conviction was not

supported by sufficient evidence.

       {¶21} This court has said that, in evaluating a sufficiency of the evidence argument, courts

are to assess not whether the state’s evidence is to be believed but whether, if believed, the

evidence against a defendant would support a conviction. State v. Givan, 8th Dist. Cuyahoga No.

94609, 2011-Ohio-100, ¶ 13, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997). The relevant inquiry then is whether, after viewing the evidence in a light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt. Id.

       {¶22} Garfield Heights Municipal Ordinances 505.215(A) provides that: “[n]o person

shall own, keep, harbor or have on public or private property a pit bull dog.” Williams argues

that the city failed to establish the elements of “keep,” “harbor” or “have” and that the state failed

to demonstrate that the dogs involved in this incident were “pit bulls.” We find no merit to the

latter argument.   Williams conceded at trial that at least one of the two dogs was a pit bull and

repeatedly referred to them as such.

       {¶23} We also find that the city presented sufficient evidence to establish that Williams

was a keeper of the pit bulls. This court has previously stated that ‘“[a] keeper of a dog is a

person who has the duty to manage, care or control the dog temporary or otherwise, even though

he or she does not own it.”’           Cleveland Hts. v. Jones, 8th Dist. Cuyahoga No. 86313,

2006-Ohio-454, ¶ 12, quoting Buettner v. Beasley, 8th Dist. Cuyahoga No. 83271,

2004-Ohio-1909, ¶ 14. Here, Crawford’s testimony established that Williams routinely cared for

the pit bulls such that she described him as the “primary caretaker” who would take them outside.
 Williams conceded that he would take the dogs outside. Williams was responsible for the pit

bulls at the time of the incident and retrieved them when they escaped.          When this evidence is

viewed in the light most favorable to the city, the court could find that defendant qualified as a

keeper of the pit bulls. Therefore, we find that the city presented sufficient evidence to support

Williams’ conviction for violating Garfield Heights Municipal Ordinance 505.215(A).

       {¶24} Williams’ second assignment of error is overruled.

       {¶25} The judgment of the trial court is affirmed in part and reversed in part.      Williams’

suspended jail term and community control sanctions are vacated.                 Williams’ restitution

obligation remains in effect.

       It is ordered that appellant and appellee share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issues out of this court directing the municipal court to

carry this judgment into execution.




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

of Appellate Procedure.



_____________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
TIM McCORMACK, J., CONCUR
