[Cite as State v. Ngaka, 2020-Ohio-3106.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 JUDGES:
                                               Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                    Hon. John W. Wise, J.
                                               Hon. Patricia A. Delaney, J.
 -vs-
                                               Case No. 19 CAC 09051
 FREDERIQUE K. NGAKA

        Defendant-Appellant                    O P I N IO N




 CHARACTER OF PROCEEDINGS:                     Appeal from the Delaware County
                                               Municipal Court, Case No.19CRB0178


 JUDGMENT:                                     Reversed and Remanded

 DATE OF JUDGMENT ENTRY:                       May 21, 2020


 APPEARANCES:


 For Plaintiff-Appellee                        For Defendant-Appellant

 NATALIA S. HARRIS                             GLORIA L. SMITH
 Assistant Delaware City Prosecutor            Gloria L. Smith Attorney &
 Delaware City Prosecutor’s Office             Counselor at Law, LLC
 70 N. Union Street                            670 Meridian Way, #188
 Delaware, Ohio 43015                          Westerville, Ohio 43082
Delaware County, Case No. 19 CAC 09051                                                      2


Hoffman, P.J.
           {¶1}    Appellant Frederique Ngaka appeals the judgment entered by the Delaware

Municipal Court convicting her of criminal trespass (R.C. 2911.21) following a bench trial,

and sentencing her to 30 days incarceration. Appellee is the state of Ohio.

                                           STATEMENT OF THE CASE1

           {¶2}    On May 9, 2019, a complaint was filed in the Delaware Municipal Court

charging Appellant with one count of criminal trespass in violation of R.C. 2911.21(A)(1).

The complaint stated Appellant entered premises belonging to her ex-husband, and

walked around the outside of the house looking in windows and taking photographs of the

interior of the home.

           {¶3}    On August 13, 2019, Appellant appeared before the court with counsel,

expecting to proceed to trial. The prosecutor moved to continue the case because the

investigating officer who was expected to testify was on the scene of a serious accident,

and therefore unavailable. Appellant had no objection to the continuance.

           {¶4}    Counsel for Appellant then informed the court Appellant wanted to waive

counsel and proceed pro se. The court allowed Appellant to proceed pro se with standby

counsel, and set a new trial date.

           {¶5}    The case proceeded to trial on August 30, 2019, with Appellant representing

herself. The court noted before trial Appellant was a paralegal, but if she had any

questions she should ask her standby counsel, who was seated with Appellant at counsel

table, because the court could not provide her with legal advice.




1   A full rendition of the facts is unnecessary for our resolution of this appeal.
Delaware County, Case No. 19 CAC 09051                                                    3


       {¶6}   Following trial, Appellant was convicted as charged and sentenced to thirty

days in jail, fined $225, and placed on community control for one year. Her driver’s license

was suspended for 30 days, and she was ordered to stay 500 feet from the former marital

residence.

       {¶7}   It is from the August 30, 2019, judgment of conviction and sentence

Appellant prosecutes this appeal, assigning as error:



              I. THE DEFENDANT WAS DENIED THE RIGHT TO PRESENT A

       DEFENSE       AND    TO    CONFRONT        WITNESSES       AGAINST      HER

       PURSUANT TO THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS

       OF THE US [SIC] CONSTITUTION AND ARTICLE I OF THE OHIO

       CONSTITUTION.

              II.   APPELLANT     WAS     DENIED      THE    RIGHT     TO   EQUAL

       PROTECTION PURSUANT TO THE FIFTH AND FOURTEENTH

       AMENDMENTS OF THE US [SIC] CONSTITUTION AND ARTICLE I,

       SECTION 2 OF THE OHIO CONSTITUTION.

              III. THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL

       PURSUANT TO THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS

       OF THE US [SIC] CONSTITUTION AND ARTICLE I OF THE OHIO

       CONSTITUTION.

              IV. THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE

       ASSISTANCE OF STANDBY COUNSEL PURSUANT TO THE FIFTH,
Delaware County, Case No. 19 CAC 09051                                                      4


       SIXTH AND FOURTEENTH AMENDMENTS                        OF THE       US [SIC]

       CONSTITUTION AND ARTICLE I OF THE OHIO CONSTITUTION.

              V. THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT

       OF THE EVIDENCE.

              VI. THE TRIAL COURT ABUSED ITS DISCRETION BY THE

       SENTENCE IT IMPOSED AGAINST THE DEFENDANT.



                                                 III.

       {¶8}   We address Appellant’s third assignment of error first, as it is dispositive of

the appeal. Appellant argues the record does not demonstrate she made a knowing,

intelligent, and voluntary waiver of counsel. We agree.

       {¶9}   The Sixth Amendment to the United States Constitution and Section 10,

Article I of the Ohio Constitution provide a criminal defendant has a right to counsel.

However, a criminal defendant also has the constitutional right to waive counsel and to

represent himself or herself at trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45

L.Ed.2d 562 (1975). In such a situation, “the Constitution * * * require[s] that any waiver

of the right to counsel be knowing, voluntary, and intelligent * * *.” Iowa v. Tovar, 541 U.S.

77, 87-88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), Crim.R. 44(A). “In order to establish

an effective waiver of [the] right to counsel, the trial court must make 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. The defendant must make an intelligent and voluntary waiver with the

knowledge he will have to represent himself, and the dangers inherent in self-
Delaware County, Case No. 19 CAC 09051                                                    5


representation. State v. Ebersole, 107 Ohio App.3d 288, 293, 668 N.E.2d 934 (3rd Dist.

Hancock 1995), citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562

(1975).

      {¶10} Because courts indulge every reasonable presumption against a waiver of

fundamental constitutional rights, waiver of counsel must affirmatively appear on the

record. City of Garfield Hts. v. Brewer, 17 Ohio App.3d 216, 217, 479 N.E.2d 309, 311–

12 (8th Dist. Cuyahoga 1984). A knowing and intelligent waiver will not be presumed from

a silent record. Id., citing Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8

L.Ed.2d 70 (1962).

      {¶11} This Court has previously discussed what must appear in the record to

demonstrate a valid waiver of counsel:



             In Gibson, supra, the Ohio Supreme Court applied the test set forth

      in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948),

      which established the requirements for a sufficient pretrial inquiry by the trial

      court into a waiver of counsel:

             To be valid such waiver 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. A judge can make certain that an

      accused's professed waiver of counsel is understandingly and wisely made
Delaware County, Case No. 19 CAC 09051                                                  6


         only from a penetrating and comprehensive examination of all the

         circumstances under which such a plea is tendered.

                State v. Gibson, 45 Ohio St.2d 366, 377, 345 N.E.2d 399 (1976).




         {¶12} State v. Newman, 5th Dist. Stark No. 2017CA00219, 2018-Ohio-3253, ¶¶

17-18.

         {¶13} The following colloquy is the only discussion on the record concerning

Appellant’s decision to waive counsel:



                THE COURT: Now, is there another issue we need to take up, Mr.

         Cramer?

                MR. CRAMER: There is, Your Honor. My client has informed me

         she would like to waive counsel and proceed pro se. I know at the bench

         you mentioned me staying on as standby counsel, and I mentioned that to

         my client as well, and she seems to be okay with that.

                THE COURT: Okay.

                MR. CRAMER: And I don’t have any problem with it either.

                THE COURT: Okay. Miss Ngaka, is that what you want to do?

                MS. NGAKA: Yes, Your Honor.

                THE COURT: Okay. You know, certainly, you know, you’re an adult,

         this is a decision you can make on your own. But, you know, sometimes

         people think they understand rules of criminal procedure, rules of evidence.

         Are you still working at a law firm?
Delaware County, Case No. 19 CAC 09051                                                   7


              MS. NGAKA: I am, Your Honor.

              THE COURT: Okay. So I know you have some knowledge. But it’s

       different when you’re the client.



       {¶14} Tr. (8/13/19) 4-5.

       {¶15} We find this colloquy does not sufficiently demonstrate Appellant’s decision

to waive counsel was made with “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” as required by the United States

Supreme Court in Von Moltke, supra, and the Ohio Supreme Court in Gibson, supra.

While the record suggests a discussion may have been held with counsel and the court

off the record, a valid waiver of counsel must be on the record, and cannot be presumed

from a silent record.

       {¶16} While the State relies heavily on Appellant’s employment as a paralegal at

a law firm to demonstrate the validity of the waiver, the record does not affirmatively

demonstrate her employment in and of itself gave her the understanding required for her

waiver of counsel to be knowing and intelligent. We find the nature of her employment

does not relieve the trial court of its constitutional duty to undertake a “penetrating and

comprehensive examination of all the circumstances” under which the decision to waive

counsel was made.

       {¶17} The third assignment of error is sustained.
Delaware County, Case No. 19 CAC 09051                                                8


      {¶18} Appellant’s remaining assignments of error are rendered moot by our

decision on her third assignment of error.

      {¶19} The judgment of the Delaware Municipal Court is reversed and this case is

remanded for further proceedings according to law and consistent with this opinion.




By: Hoffman, P.J.
Wise, John, J. and
Delaney, J. concur
