State v. Terrell ( 2012 )

[Cite as State v. Terrell, 2012-Ohio-3361.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97458
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
HARRY TERRELL
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-521919
BEFORE: Boyle, J., Blackmon, A.J., and Keough, J.
RELEASED AND JOURNALIZED: July 26, 2011
ATTORNEY FOR APPELLANT
Aaron T. Baker
Aaron T. Baker Co., L.P.A.
38109 Euclid Avenue
Willoughby, Ohio 44094
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Jeffrey S. Schnatter
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Harry Terrell, was indicted on one count of drug
trafficking and one count of possessing criminal tools. The counts also included two
forfeiture specifications, namely, for a large sum of money and a vehicle. He pleaded no
contest to the indictment. The trial court sentenced him to a total of 12 months in prison
and ordered that he forfeit the money and the vehicle.
{¶2} In his sole assignment of error, Terrell argues that the trial court violated
Crim.R. 44(A) and (C) when it failed to engage in any meaningful colloquy with him
regarding his waiver of counsel. The state concedes this error, asserting
[t]he record shows that the trial court granted Mr. Terrell’s written motion
to proceed pro se with no meaningful inquiry into Mr. Terrell’s
understanding of the rights that he was waiving, and therefore it could not
have made a determination as to whether Mr. Terrell was making a
knowing, voluntary and intelligent waiver of those rights.
{¶3} In criminal prosecutions, the right to counsel is guaranteed by both the Sixth
Amendment to the United States Constitution and the Ohio Constitution, Article I,
Section 10. The defendant may dispense with this right, however, and represent himself
if he “‘knowingly, intelligently, and voluntarily waives his right to counsel.’” State v.
Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 26, quoting Crim.R. 44.
{¶4} To effect a valid waiver of the right to counsel, it is necessary that the trial
court “make sufficient inquiry to determine whether defendant fully understands and
intelligently relinquishes that right.” Id. at paragraph two of the syllabus. Before
concluding there has been a waiver, the court must be satisfied that the defendant made an
intelligent and voluntary waiver with the knowledge that he will have to represent himself
and that there are dangers in self-representation. State v. Ebersole, 107 Ohio App.3d
288, 293, 668 N.E.2d 934 (3d Dist.1995).
{¶5} The trial court judge originally assigned to Terrell’s case recused herself
after Terrell filed an affidavit to disqualify her. A second judge was assigned to the
case.
{¶6} At a pretrial hearing, the second judge stated to Terrell, “I haven’t reviewed
the docket in full. Has any judge determined on the record whether you’re capable of
representing yourself?” Terrell responded that the first judge had. The judge then
proceeded to permit Terrell to proceed pro se with standby counsel. Although the
docket indicates that the first judge granted Terrell’s motion to proceed pro se, there is
nothing in the record to show that the first judge made the proper inquiry to determine
whether Terrell was making a knowing, voluntary, and intelligent waiver of his right to
counsel.
{¶7} Thus, after reviewing the record, we agree with Terrell and the state that the
second judge (who took over Terrell’s case when the first judge recused herself) did not
properly conduct a colloquy to determine whether Terrell was making a knowing,
voluntary, and intelligent waiver of his right to counsel.
{¶8} Accordingly, Terrell’s sole assignment of error is sustained.
{¶9} Judgment reversed and remanded to the lower court for further proceedings
consistent with this opinion.
It is ordered that appellant recover of appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas 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.
MARY J. BOYLE, JUDGE
PATRICIA ANN BLACKMON, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR