State v. Wamsley , 2016 Ohio 2885 ( 2016 )

[Cite as State v. Wamsley, 2016-Ohio-2885.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. Sheila G. Farmer, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 15-COA-030
STEPHEN WAMSLEY :
:
Defendant-Appellant : O P I N I ON
CHARACTER OF PROCEEDING: Criminal appeal from the Ashland Municipal
Court, Case No. 15-CR-B-446
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: May 5, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAVID M. HUNTER WARNER MENDENHALL
Prosecuting Attorney 190 North Union Street, Ste. 201
244 West Main Street Akron, OH 44304
Loudonville, OH 44842
[Cite as State v. Wamsley, 2016-Ohio-2885.]
Gwin, J.,
{¶1} Appellant Stephen M. Wamsley [“Wamsley”] appeals his conviction and
sentence after a jury trial in the Ashland Municipal Court.
Facts and Procedural History
{¶2} On April 28, 2015, Wamsley was arraigned in the Ashland Municipal Court
on one count of assault, in violation of R.C. 290113(A) for allegedly spraying Ramona
Lee [“Lee”] with Febreeze on March 24, 2015, causing her to seek medical attention. The
Court explained the charge and the maximum possible penalties to Wamsley. The Court
then inquired whether he spoke to an attorney. Wamsley indicated that he had, but would
proceed without an attorney. He then entered a not guilty plea on the record. Before
setting future court dates, the Court explained Wamsley's speedy trial rights to him.
{¶3} A pretrial was held on May 12, 2015. The Court asked Wamsley if he was
represented by an attorney, to which he replied that he was not. The Court then stated
that it did not want to discourage Wamsley from representing himself, but then proceeded
to advise him regarding the potential adverse use of any statements about the case that
Wamsley may make in Court on the record. The Court then had a dialogue with Wamsley
concerning Wamsley’s denial of the charge. The Court then set a trial date and instructed
Wamsley how to obtain discovery and make a jury demand.
{¶4} A jury trial commenced on June 11, 2015. Wamsley was not represented
by counsel during the trial. Wamsley testified on his own behalf at trial. After the
presentation of evidence, the jury deliberated and returned a verdict of guilty on the sole
charge of assault. Wamsley was then sentenced by the Court to a period of incarceration
of 90 days and suspended the sentence on the condition that he complete 2 years of
Ashland County, Case No. 15-COA-030 3
community control, 80 hours of community service, pay restitution, and return Lee's
property.
Assignments of Error
{¶5} “I. THE TRIAL COURT ERRED IN FAILING TO ADVISE APPELLANT OF
THE CONSEQUENCES OF DECLINING COUNSEL AND ELECTING TO REPRESENT
HIMSELF, FAILING TO ENSURE THAT APPELLANT'S WAIVER OF COUNSEL WAS
KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY MADE. SIXTH AND FOURTEEN
AMENDMENTS OF THE UNITED STATES CONSTITUTION, SECTION 10, ARTICLE I
OF THE OHIO CONSTITUTION.
{¶6} “II. THE MISCONDUCT OF THE PROSECUTOR VIOLATED
APPELLANT'S RIGHTS TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS
PROVISIONS OF ARTICLE 1, SECTION 16 OF THE OHIO CONSTITUTION AND THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.”
I.
{¶7} In his first assignment of error, Wamsley contends he did not voluntarily,
knowingly, and intelligently waive the right to counsel, and therefore, his conviction must
be vacated.
{¶8} In the case at bar, the following exchange occurred during Wamsley’s
arraignment,
THE COURT: All right, thank you Mr. Stimpert. Mr. Wamsley, did you
get a copy of this ticket?
MR. WAMSLEY: I did.
THE COURT: Do you understand what you're being accused of?
Ashland County, Case No. 15-COA-030 4
MR. WAMSLEY: Yes.
THE COURT: You're charged with assault, which is knowingly
causing or attempting to cause physical harm to another. That is a first
degree misdemeanor; maximum penalty for that is 180 days in the County
Jail, $1000 fine. Do you understand those possible penalties?
MR. WAMSLEY: Yes, sir, I do.
THE COURT: And were you here, sir, when I explained to everyone
their rights?
MR. WAMSLEY: I was.
THE COURT: Any questions about any of that?
MR. WAMSLEY: No.
THE COURT: Have you talked to a lawyer, sir?
MR. WAMSLEY: Yes, I have.
THE COURT: You've done that already?
MR. WAMSLEY: Yes.
THE COURT: Who, sir?
MR. WAMSLEY: Well, I'm not going to retain counsel; it will be pro se.
THE COURT: Okay. Are you prepared to enter a plea then?
MR. WAMSLEY: I'm going to enter a plea to not guilty.
THE COURT: I'm going to accept your not guilty plea.
T. Apr. 28, 2015 at 4-6. In the case at bar, Wamsley was not given the mandatory
recitation of rights in conformity with Crim.R. 5 and Crim.R. 10. Wamsley had the right to
have an attorney if he so desired to represent him under both the Sixth Amendment to
Ashland County, Case No. 15-COA-030 5
the United States Constitution and Section 10, Article I of the Ohio Constitution. Wamsley
did not admit his guilt in open court without counsel’s advice; rather he contested his guilt
by representing himself at a jury trial.
The right to counsel under the federal and Ohio constitutions.
{¶9} The Sixth Amendment safeguards to an accused who faces incarceration
the right to counsel at all critical stages of the criminal process. Maine v. Moulton, 474
U.S. 159, 170, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); United States v. Wade, 388 U.S.
218, 224, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The right to counsel extends to “any
stage of the prosecution, formal or informal, in court or out, where counsel's absence
might derogate from the accused's right to a fair trial.” United States v. Wade, 388 U.S.
218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Undoubtedly, a jury trial ranks as a
“critical stage” at which the right to counsel adheres. “Waiver of the right to counsel, as
of constitutional rights in the criminal process generally, must be a “knowing, intelligent
ac[t] done with sufficient awareness of the relevant circumstances.” Iowa v. Tovar, 541
U.S. 77, 81, 124 S.Ct. 1379, 158 L.Ed.2d 209(2004), quoting Brady v. United States, 397
U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In order to waive counsel at trial,
the Supreme Court has observed,
[R]ecognizing the enormous importance and role that an attorney plays at
a criminal trial, we have imposed the most rigorous restrictions on the
information that must be conveyed to a defendant, and the procedures that
must be observed, before permitting him to waive his right to counsel at trial.
See Faretta v. California, 422 U.S. 806, 835–836, 95 S.Ct. 2525, 2541–
Ashland County, Case No. 15-COA-030 6
2542, 45 L.Ed.2d 562 (1975); cf. Von Moltke v. Gillies, 332 U.S. 708, 723–
724, 68 S.Ct. 316, 323–324, 92 L.Ed. 309 (1948).
Patterson v. Illinois, 487 U.S. 285, 298, 108 S.Ct. 2389, 101 L.Ed.2d 261(1988)(emphasis
added). In the case at bar, Wamsley represented himself at a jury trial.
{¶10} The right to counsel being a constitutional right, strict compliance with the
advisement and waiver requirements is mandatory. Cf. State v. Griggs, 103 Ohio St.3d
85, 2004-Ohio-4415, 814 N.E.2d 51(“[F]ailure to adequately inform a defendant of his
constitutional rights would invalidate a guilty plea under a presumption that it was entered
involuntarily and unknowingly…”); State ex rel. Jackson v. Dallman, 70 Ohio St.3d
261,262 1994-Ohio-235, 638 N.E.2d 563 (Requirement that strict compliance with R.C.
2945.05 be shown in order to waive the right to a jury trial applies to petty cases).
{¶11} “There is a presumption against the waiver of constitutional rights, see, e.g.,
Glasser v. United States, 315 U.S. 60, 70-71, 62 S.Ct. 457, 86 L.Ed. 680, and for a waiver
to be effective it must be clearly established that there was ‘an intentional relinquishment
or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58
S.Ct. 1019, 82 L.Ed. 1461.
The constitutional right of an accused to be represented by counsel invokes,
of itself, the protection of a trial court, in which the accused-whose life or
liberty is at stake-is without counsel. This protecting duty imposes the
serious and weighty responsibility upon the trial judge of determining
whether there is an intelligent and competent waiver by the accused. While
an accused may waive the right to counsel, whether there is a proper waiver
Ashland County, Case No. 15-COA-030 7
should be clearly determined by the trial court, and it would be fitting and
appropriate for that determination to appear upon the record.
Johnson at 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). “Presuming waiver from a
silent record is impermissible. The record must show, or there must be an allegation and
evidence which show, that an accused was offered counsel but intelligently and
understandingly rejected the offer. Anything less is not waiver.” Carnley v. Cochran, 369
U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962).
{¶12} In all cases where the right to counsel is waived, the court “must make
sufficient inquiry to determine whether 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. “For a petty offense, voluntary and knowing waiver may
be shown through the court’s colloquy with the defendant.” State v. Brooke, 113 Ohio
St.3d 199, 2007–Ohio–1533, 863 N.E.2d 1024 ¶ 54.
The constitutional right to self-representation.
{¶13} The Ohio Supreme Court has concluded that “a defendant in a state criminal
trial has an independent constitutional right of self-representation and * * * may proceed
to defend himself without counsel when he voluntarily, and knowingly and intelligently
elects to do so.” State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399(1976), paragraph
one of the syllabus, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d
562(1975).
{¶14} However, because a jury trial requires skill and expertise that can be
daunting, the courts have required that, in addition to a valid waiver of the right to counsel,
Ashland County, Case No. 15-COA-030 8
the defendant must be strongly advised of the dangers and disadvantages of self-
representation.
{¶15} In Gibson supra, the Ohio Supreme Court held a trial court must provide
sufficient warning to the defendant of the seriousness of the trial and the possible results
it could have for his liberty and life. The Court stated:
This protecting duty imposes the serious and weighty responsibility upon
the trial judge of determining whether there is an intelligent and competent
waiver by the accused. To discharge this duty properly in light of the strong
presumption against waiver of the constitutional right to counsel, a judge
must investigate as long and as thoroughly as the circumstances of the case
before him demand. The fact that an accused may tell him that he is
informed of his right to counsel and desires to waive this right does not
automatically end the judge’s responsibility. 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.
Gibson, supra, at 376–377, citing Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316,
323(1948). In Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988),
the Court elaborated on “the dangers and disadvantages of self-representation” to which
Faretta referred,
Ashland County, Case No. 15-COA-030 9
“[A]t trial,” we observed, “counsel is required to help even the most gifted
layman adhere to the rules of procedure and evidence, comprehend the
subtleties of voir dire, examine and cross-examine witnesses effectively ...,
object to improper prosecution questions, and much more.” 487 U.S., at
299, n. 13, 108 S.Ct. 2389. Warnings of the pitfalls of proceeding to trial
without counsel, we therefore said, must be “rigorous[ly]” conveyed.
Id., at 298, 108 S.Ct. 2389 (emphasis added). Because the dangers and disadvantages
of self-representation during trial are so substantial, an accused will not be deemed to
have validly waived his Sixth Amendment right to counsel unless the court has made
“searching or formal inquiry” to ensure that his waiver is knowing, intelligent, and
voluntary. Patterson, 487 U.S. at, 292 & n. 4, 298–300, 108 S.Ct. 2389, 101 L.Ed.2d 261(1988). In State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, the
Ohio Supreme Court agreed that a defendant must be adequately advised of the perils of
self-representation. Id. at ¶41-42.
{¶16} In the case at bar, the trial court did read the charges to Wamsley and inform
him of the maximum penalties. However, the trial court did not inform Wamsley of the
statutory offenses included within them, the range of allowable punishments, possible
defenses, mitigation, the dangers and disadvantages of representing himself at a jury
trial, or other facts essential to a broad understanding of the whole matter.
{¶17} Wamsley was charged with a misdemeanor of the first degree. He was
facing a maximum of six months incarnation. He was given a 90-day suspended jail
Ashland County, Case No. 15-COA-030 10
sentence by the trial court.1 Not only did Wamsley represent himself at his jury trial, he
testified in his own defense. Had the trial judge rigorously conveyed the dangers and
disadvantages of self-representation at a jury trial Wamsley may well have made a
different choice. Without this information, Wamsley could not make an intelligent
decision. Wamsley had a constitutional right to make a knowing, intelligent and voluntarily
decision on whether to have an attorney represent him at a jury trial or proceed to
represent himself at a jury trial to determine his guilt.
Vacating Wamsley’s conviction and sentence is the appropriate remedy
because the Ohio constitution provides greater protection than the federal
constitution concerning the right to counsel.
{¶18} Courts have suggested that, in a misdemeanor case, an appellate court can
remedy a trial court’s failure to comply with the mandatory recitation of rights in conformity
with Crim.R. 5 and Crim.R. 10 or the trial court’s failure to obtain a knowing, intelligent
and voluntary waiver by a defendant of his right to have an attorney to contest his guilt at
a jury trial by vacating a sentence of confinement, leaving his conviction intact. This flows
from the assumption that a defendant is not entitled to an attorney to represent him if he
is not given a sentence of confinement. See, Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct.
1158, 59 L.Ed.2d 3832. See, also, State v. Haag, 49 Ohio App.2d 268, 360 N.E.2d
756(9th Dist. 1976); State v. Williams, Cuyahoga App. No. 102279, 2016-Ohio-381.
1 In Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888(2002), the United States
Supreme Court did find that a “suspended sentence that may end up in actual deprivation of a person’s
liberty may not be imposed unless the defendant was accorded the guiding hand of counsel.” Id., syllabus.
2 In Scott, the court stated that “actual imprisonment is a penalty different in kind from fines or the
mere threat of imprisonment * * * and warrants adoption of actual imprisonment as the line defining the
constitutional right to appointment of counsel. * * * 440 U.S. at 373-374, 99 S.Ct. 1161-1162.
Ashland County, Case No. 15-COA-030 11
{¶19} The difficulty with this approach is that by not imposing a jail sentence, or
by an appellate court’s vacation of a sentence of confinement on appeal, a trial court can
forgo any explanation of constitutional rights, and force an unwilling and unprepared
defendant to represent him or herself in front of a jury. This could have a chilling effect
upon a person’s exercise of his or her constitutional right to a jury trial.
{¶20} The Ohio Supreme Court recently fortified the importance of the right to
counsel in misdemeanor cases. In a recent decision, the Ohio Supreme Court has
signaled a shift from decisions limiting the right to counsel under the federal constitution
only to misdemeanor cases in which actual incarceration was imposed. In State v. Bode,
144 Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156, the Court utilized the Ohio
Constitution to suggest that an accused has a right to counsel whenever an accused is
facing the possibility of confinement.
{¶21} In State v. Bode, the defendant was convicted of two counts of operating a
motor vehicle while intoxicated (OVI), each with a specification that he had previously
been convicted of or pleaded guilty to five or more equivalent offenses. 144 Ohio St.3d
155, 2015-Ohio-1519, 41 N.E.3d 1156, ¶5. On appeal, the issue presented was whether
the state may use an uncounseled juvenile adjudication to enhance penalties for an adult
conviction for operating a motor vehicle while intoxicated (“OVI”) under R.C.
4511.19(G)(1)(d). We affirmed Bode’s conviction and sentence on appeal. In reversing
our decision the Supreme Court noted,
Nevertheless, the state wishes to limit the right to counsel to cases in which
an offender has received a sentence of custody or confinement. It attempts
to characterize Bode’s 1992 juvenile disposition as one that did not involve
Ashland County, Case No. 15-COA-030 12
custody or confinement by emphasizing that he did not receive a suspended
sentence and was not notified of any consequences of failing to successfully
complete the program or follow-up. His disposition was a referral to a
treatment program primarily intended to “educate, counsel, and assess”
attendees by offering educational films and lectures and conducting
individual and group counseling. The program did not fingerprint or
photograph attendees or require them to change out of their street clothes.
Uniformed officers were not present, the program had an “open door” policy,
there were no locked cells, and attendees were never kept behind locked
doors. They could, and in some cases did, choose to leave the program
early. In short, the state says that this was not a sentence of confinement
that would give rise to a right to counsel.
But whether jail or prison was actually imposed as a disposition is
irrelevant. It is the potential sanction that matters here.
We recognize that the United States Supreme Court, construing the
federal Constitution, does limit the right to counsel to cases in which actual
incarceration was imposed. Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct.
1158, 59 L.Ed.2d 383; Nichols v. United States, 511 U.S. at 743, 114 S.Ct.
1921, 128 L.Ed.2d 745. But states have the ability under their own
constitutions to grant greater rights than those provided by the federal
Constitution. In Nichols, the court acknowledged that a state may give
greater protections concerning the right to counsel:
Ashland County, Case No. 15-COA-030 13
Of course States may decide, based on their own
constitutions or public policy that counsel should be available for all
indigent defendants charged with misdemeanors. Indeed, many, if
not a majority, of States guarantee the right to counsel whenever
imprisonment is authorized by statute, rather than actually imposed.
Nichols at 748, 114 S.Ct. 1921, fn. 12. The dissent instead would have us
confined by federal cases alone.
But in Ohio, we have already looked to the possibility of confinement
as the factor that determines whether counsel is necessary in a particular
case. In State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, 21 N.E.3d
1033, we considered whether a defendant is entitled to counsel at a
resentencing hearing conducted solely for the purpose of properly imposing
statutorily mandated post-release control in a felony case. Id. at ¶ 12–17.
We determined that a right to counsel exists in critical stages of a criminal
proceeding to ensure that the court complies with statutes, the defendant
understands proceedings, and issues are preserved for appeal. Id. at ¶ 16.
In this case, although Bode would have committed what would have been
a misdemeanor had he been an adult at the time, he still faced the possible
penalty of confinement. See R.C. 2152.21(A)(6) and former 2151.356(A)(6)
as effective in 1992, 143 Ohio Laws, Part I, 620 (providing for commitment).
He was entitled to an attorney “at all stages of the proceedings,” pursuant
to former R.C. 2151.352. 136 Ohio Laws, Part I, 1891. And while the
dissent attempts to minimize misdemeanors, saying that defendants should
Ashland County, Case No. 15-COA-030 14
have a right to counsel only when actual prison is imposed, it is difficult to
see any logic or purpose in the felony/misdemeanor distinction. An attorney
is crucial whenever there is the possibility of custody—that is what an
attorney will protect against. There is no evidence here that Bode was
counseled before he was adjudicated delinquent in 1992 or that he
voluntarily chose to give up the right to an attorney. Ohio law provided that
Bode was entitled to an attorney, and his uncounseled adjudication
amounted to an unconstitutional violation of his due-process rights. See
Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, paragraph
one of the syllabus.
Bode, 114 Ohio St.3d 155, 2015-Ohio-1519, 41 N.E.3d 1156, ¶22-24 (emphasis added).
{¶22} It was the possibility of confinement that required a knowing and intelligent
waiver to be shown in Bode. The fact that the trial court in Bode did not impose a sentence
of confinement was considered irrelevant. In other words, Bode’s conviction could not be
used in a subsequent case because his constitutional rights had been violated. If the trial
court must obtain a knowing, voluntary and intelligent waiver of the right to counsel in
order to use Bode’s conviction in a subsequent case, or in a case where the court merely
re-sentences a defendant to properly impose post release controls, then most certainly a
trial court must obtain a knowing, intelligent and voluntary waiver before permitting a
defendant to represent himself at a jury trial even if the defendant is not given a sentence
of confinement.
{¶23} A defendant has a constitutional right to decide if he would prefer to have
an attorney to contest his guilt at trial. Wamsley could not make an intelligent and
Ashland County, Case No. 15-COA-030 15
voluntary decision to represent himself at a jury trial because he was not properly advised
of his constitutional rights by the trial court. Because both the right to counsel at trial and
the right to self-representation are constitutional rights, strict compliance with the
advisement and the waiver requirements is mandatory; Wamsley is not required to show
prejudice, it is presumed. Otherwise, a trial court can dispense with all advisement of
constitutional rights and with all requirements for a valid waiver of those rights by simply
not imposing a sentence of confinement in the event the defendant is found guilty. If a
defendant insists on exercising his or her constitutional right to a jury trial, the court can
inform the defendant that the court will not provide an attorney to represent him or her at
trial, and the defendant will be required to represent himself or herself in front of a jury
and conduct the jury trial. This can have a chilling effect upon a person’s desire to contest,
not the sentence, but his or her guilt of the charged offense.
{¶24} Wamsley was convicted and given a sentence of confinement in the case
at bar. Under Bode, the state would not be permitted to use his conviction in a subsequent
case because a valid wavier was not obtained. If the conviction is unconstitutional for
elevation purposes, it cannot be allowed to stand as constitutional for conviction
purposes. Again, this is not a case where the defendant admits his guilt by entering a
plea without the assistance of counsel; rather Wamsley exercised his right to have a jury
make that determination. He was charged with a first-degree misdemeanor facing the
possibility of up to and including 180-days of confinement. Wamsley could not voluntary,
intelligently and knowingly waive his right to counsel and exercise his right to self-
representation because the trial court did not properly advise him as it is required to do.
Ashland County, Case No. 15-COA-030 16
{¶25} There was no valid waiver of Wamsley’s constitutional rights obtained by
the trial court before Wamsley represented himself at a jury trial. Therefore, Wamsely’s
conviction is unconstitutional.
{¶26} Accordingly, Wamsley’s first assignment of error is sustained.
II.
{¶27} In light of our disposition of Wamsley’s first assignment of error, we find
Wamsley’s second assignment of error to be moot.
{¶28} Accordingly, the judgment of the Ashland Municipal Court is reversed, the
conviction and sentence are vacated, and this case is remanded to the Ashland Municipal
Court for proceedings in accordance with our opinion and the law.
By Gwin, J.,
Farmer, P.J., concur;
Delaney, J., concurs in part;
dissents in part
Ashland County, Case No. 15-COA-030 17
Delaney, J., concurring in part & dissenting in part
{¶29} I concur in the majority’s conclusion that Wamsley did not voluntarily,
knowingly, and intelligently waive the right to counsel. However, I disagree with the
majority’s conclusion that the appropriate remedy is to vacate Wamsely’s conviction.
Therefore, I dissent from the majority’s disposition of Wamsley’s first assignment of error
in this regard.
{¶30} In this case, Wamsley was charged with a petty offense. Crim.R. 44
provides in relevant part:
{¶31} (B) Counsel in petty offenses. Where a defendant charged with a petty
offense is unable to obtain counsel, the court may assign counsel to present 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.
{¶32} In accordance with the plain wording of Crim. R. 44(B) and the holdings of
our colleagues in the Second and Eighth Appellate Districts in State v. Owens, 2nd Dist.
Montgomery No. 23150, 2010-Ohio-564, and State v. Williams, 8th Dist. Cuyahoga No.
102279, 2016-Ohio-381, I would affirm Wamsley’s conviction but vacate the portion of the
trial court’s judgment entry imposing a jail sentence, including the suspended portion of
that jail sentence. Furthermore, I disagree with the majority’s interpretation of the Ohio
Supreme Court’s holding in State v. Bode as support for vacating Wamsley’s conviction.
{¶33} Lastly, I would overrule Wamsley’s second assignment of error. I would find
the comments of the prosecutor in closing arguments to be based on the testimony
Ashland County, Case No. 15-COA-030 18
presented at trial and therefore not improper nor did they prejudicially affect Wamsley’s
substantial rights under a plain error analysis.
{¶34} For these reasons, I concur in part and dissent in part from the majority
Opinion.