State v. Jones , 2020 Ohio 6777 ( 2020 )

[Cite as State v. Jones, 2020-Ohio-6777.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-18-013
Appellee Trial Court Nos. 15-CR-0942
15-CR-1040
v.
Hayward Jones DECISION AND JUDGMENT
Appellant Decided: December 18, 2020
*****
Dave Yost, Ohio Attorney General, and Christopher L.
Kinsler, Assistant Attorney General, for appellee.
Geoffrey L. Oglesby, deceased, for appellant.
*****
SINGER, J.
{¶ 1} This case is before the court on remand from the Supreme Court of Ohio on
the limited issue of whether defendant-appellant, Hayward J. Jones, knowingly,
intelligently, and voluntarily waived his right to trial counsel. State v. Jones, Slip
Opinion No. 2020-Ohio-4031. For the reasons that follow, we find that he did not. We
reverse the March 8, 2018 judgment of the Sandusky County Court of Common Pleas,
convicting Jones of engaging in a pattern of corrupt activity and numerous counts of
conspiracy and trafficking in cocaine.
I. Background
{¶ 2} Following a jury trial, Hayward Jones was convicted of one count of
engaging in a pattern of corrupt activity, nine counts of conspiracy, and 47 counts of
trafficking in cocaine. He had originally been charged with a total of 104 counts—95
counts in Sandusky County case No. 15CR1040 and nine counts in Sandusky County
case No. 15CR942—but the remaining counts were dismissed. Jones was sentenced to
an aggregate prison term of 13 years. The conviction and sentence are memorialized in
an amended sentencing entry journalized on March 8, 2018.
{¶ 3} Jones appealed, assigning six errors for our review:
I. THE COURT ERRED IN FORCING MR. JONES TO USE
INEFFECTIVE STANDBY COUNSEL.
II. THE COURT ERRED IN NAMING SOMEONE AN EXPERT
WHEN THEIR OWN TESTIMONY IS INCONSISTENT.
III. THE COURT ERRED IN ALLOWING A VERDICT THAT IS
AGAINST THE MANIFEST WEIGHT OF EVIDENCE.
IV. MR. JONES’S MOTION FOR ACQUITTAL WAS
IMPROPERLY DENIED.
2.
V. THE COURT ERRED IN GROUPING THE OFFENSES
TOGETHER ON THE VERDICT FORMS.
VI. THE COURT ERRED IN SENTENCING MR. JONES TO
MAXIMUM AND MANDATORY TIME AGAINST THE FACTORS OF
SENTENCING.
State v. Jones, 6th Dist. Sandusky No. S-18-013, 2019-Ohio-301, ¶ 2.
{¶ 4} We found Jones’s second and fifth assignments of error not well-taken. We
found his third and fourth assignments of error well-taken, in part, and not well-taken, in
part; we vacated his convictions on Count Nos. 2, 3, and 8 in Sandusky County case No.
15-CR-942 and Count Nos. 12, 31, 37, 45, and 55 in Sandusky County case No.
15-CR-1040. We also found his sixth assignment of error well-taken, in part, and not
well-taken, in part; we found that the sentence imposed for Count 5 should have merged
with the sentence imposed for Count 4, and the sentence imposed for Count 7 should
have merged with the sentence imposed for Count 6. These conclusions reduced Jones’s
aggregate prison term by two years.
{¶ 5} But it is our disposition of Jones’s first assignment of error that is at issue
here. In that assignment of error, Jones argued that he was deprived of effective
assistance of counsel because the trial court forced him to proceed to trial without counsel
or “a fair chance.” He made three main arguments in support of this assignment of error:
(1) the trial court erred in determining that he knowingly, intelligently, and voluntarily
waived his right to counsel; (2) he received ineffective assistance of counsel because he
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should have been afforded full representation as opposed to standby counsel; and (3) the
trial court improperly deprived him of standby counsel during voir dire and committed
error in disallowing him from participating in voir dire.
{¶ 6} With respect to Jones’s first argument, there was no transcript in the record
of the August 19, 2016 hearing where Jones purportedly waived his right to counsel.
Finding that we were compelled to presume the regularity of the proceedings, we
concluded that the court acted appropriately in accepting appellant’s waiver of counsel
and that Jones knowingly, intelligently, and voluntarily waived his right to counsel under
Crim.R. 44(C). We were also not persuaded by Jones’s second and third arguments. We
found Jones’s first assignment of error not well-taken.
{¶ 7} Jones appealed our decision to the Supreme Court of Ohio. The court
accepted review of Jones’s appeal. While the matter was pending before the Ohio
Supreme Court, Jones filed a motion to supplement the record. He stated in his motion
that the transcript of the August 19, 2016 hearing—where Jones purportedly waived his
right to counsel—was not initially available because the court reporter was not present at
the hearing and the audio recording of the hearing was unavailable due to a ransomware
attack on the court’s computer system. Jones explained that in anticipation of oral
argument in the Ohio Supreme Court, counsel tried once again to obtain the hearing
transcript and was informed that the recording had become available. He attached the
transcript of the hearing.
4.
{¶ 8} The Ohio Supreme Court initially denied Jones’s motion to supplement,
State v. Jones, 158 Ohio St.3d 1416, 2020-Ohio-630, 140 N.E.3d 727, but then
reconsidered. State v. Jones, Slip Onion No. 2020-Ohio-4031. The court vacated its
denial of his motion to supplement, granted the motion to supplement the record with the
transcript of the August 19, 2016 hearing, deemed the record supplemented, and
remanded the case to this court to review the once-missing transcript and to render an
opinion on the issue of whether Jones knowingly, intelligently, and voluntarily waived
his right to counsel.
II. Law and Analysis
{¶ 9} “It is axiomatic that a criminal defendant has a right to counsel pursuant to
the Sixth and Fourteenth Amendments to the United States Constitution and Section 10,
Article I of the Ohio Constitution, as well as a right to act as his own counsel during trial,
if he so chooses.” State v. Harris, 6th Dist. Erie No. E-02-019, 2003-Ohio-5190, ¶ 23,
citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). But
“before a defendant may serve as his own counsel, the defendant must knowingly,
intelligently, and voluntarily waive his right to assistance of counsel.” State v. Weiss, 92
Ohio App.3d 681, 684, 637 N.E.2d 47 (9th Dist.1993). Under Crim.R. 44(C), “[w]aiver
of counsel shall be in open court and the advice and waiver shall be recorded as provided
in Rule 22.” In serious offense cases, the waiver must be in writing. Id.{¶ 10} “Whether a defendant knowingly, intelligently, and voluntarily waived the
right to counsel is an issue that we review de novo.” State v. Reece, 6th Dist. Lucas No.
5.
L-17-1314, 2019-Ohio-2259, ¶ 14. In doing so, we must independently examine the
record to determine “whether the totality of circumstances demonstrates a knowing,
intelligent, and voluntary waiver of the right to counsel.” State v. Guess, 4th Dist.
Hocking No. 11CA33, 2014-Ohio-771, ¶ 9.
A. Jones asks to fire appointed counsel and represent himself.
{¶ 11} Over the life of the case, the trial court appointed three different attorneys
for Jones. The first one withdrew almost immediately upon discovering the complexity
of the case and the amount of time that would be required to properly defend against the
104 counts. The second attorney withdrew because he had been retained to represent a
co-defendant. The third attorney (“assigned counsel”) was permitted to withdraw at
Jones’s request on August 19, 2016.
{¶ 12} Jones appeared in court with assigned counsel for a change of plea hearing
on August 19, 2016—six days before his case was scheduled to be tried. At that hearing,
Jones changed his mind about entering a plea; instead, he told the court that he no longer
wished to be represented by assigned counsel:
The defendant: * * * I don’t want [assigned counsel] representing
me because he hasn’t been representing me well the whole time, like –
The court: Well, he doesn’t tell you what you want to hear, but he’s
a very competent Defense attorney. He’s a former prosecutor.
{¶ 13} Jones told the court that assigned counsel had not been preparing his case,
had only recently provided him with disks that the state planned to offer as exhibits at
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trial, and was pressuring him to accept a plea agreement. The court initially refused to
allow assigned counsel to withdraw:
The court: * * * I see no good reason to take [assigned counsel] off
the case. He was court appointed. You don’t get to select your attorney at
the last minute when we’re talking court appointed lawyers, all right? He’s
competent. I’m not going to take him off the case. Now, are you – were
you going to hire private counsel?
The defendant: I was going to try, because this is not going to work.
Me and him don’t see eye to eye. My life is on the line right here * * *.
The court: I think you have an obligation to yourself, Mr. Jones.
You know what we’re dealing with here, okay?
My guess is you’re familiar with all of the counts, and if you think
that they’re going to magically disappear or are – I think you’re, perhaps,
living in a fantasy land, okay?
You appreciate the – the drug culture in Sandusky County. This is
not your first rodeo, correct?
The defendant: Right.
The court: You’ve been to prison before –
The defendant: Correct.
The court: – on drug charges.
The defendant: Correct.
7.
The court: Okay. I mean, I’m not – I’m not trying to be difficult,
but you came into this court, you pled indigency. I knew that [assigned
counsel] was accomplished in this area.
The defendant: Uh huh.
The court: He got the appointment. You got probably one of the
best Defense attorneys in northern Ohio, and, at the last minute you say, oh,
I – I don’t get along with him, I don’t trust him, it’s not going to fly.
{¶ 14} The court recessed to allow Jones to further consider the state’s plea offer
“or we’re going to trial Thursday, and [assigned counsel] is still your attorney, okay?”
When the court reconvened, assigned counsel told the court that Jones wanted to
terminate assigned counsel’s representation and represent himself:
[Assigned counsel]: * * * [Mr. Jones] would like to fire me and
defend himself, as I understand it, on Thursday. He does not intend to put
up with me. He said he’s had enough of me, and that’s where we’re at.
The court: Mr. Jones. Have you ever heard the expression a person
who represents himself has a fool for a client?
The defendant: No.
***
The court: Well, you might want to think about that.
The defendant: Okay.
***
8.
The court: Certainly, Mr. Jones has the right to represent himself.
We’ve tried to stress to him the importance of having counsel.
If you don’t want to work with your counsel, well, you do have the
Constitutional right to represent yourself; so [assigned counsel], you would
be excused.
{¶ 15} Both assigned counsel and counsel for the state were concerned with the
lack of formality exercised by the trial court in acquiescing to Jones’s request to represent
himself. They encouraged the court to put the waiver in writing:
[Assigned counsel]: Your Honor, shouldn’t this be done in writing
since that would, technically, be a waiver of counsel? Guess I’m just – in
terms of the formalities and coming out right, [assistant attorney general].
[Assistant attorney general]: I – I’m inclined to say – it’s been
awhile since I’ve had one, but I do think it’s prudent to have it in writing,
Your Honor, I mean, it is on the record here, I guess, but – it couldn’t hurt
to have it in writing also. I don’t have such a form, though, handy, Your
Honor. I could see if the Prosecutor’s Office does.
The court: Well, I’ll write one up here. Is your middle initial J.?
The defendant: Yes.
***
9.
The court: All right, I’ve just drafted, “The Defendant this day has
elected to represent himself at jury trial scheduled for 8/26/16, and he
discharge [sic] his appointed counsel * * *.”
“Defendant by his signature below knowingly makes this
Constitutional decision to represent himself.”
Anything more we need?
[Assistant attorney general]: You know, Judge, what date did you
put on it? I think it’s the 25th.
{¶ 16} With that, the court asked assigned counsel to provide Jones with the
discovery received from the state:
The court: And I trust you’ll turn over to Mr. Jones all of the
Discovery that you’ve been –
[Assigned counsel]: Well, he has the – the tapes that they had. He
has those. Mr. Jones –
The defendant: Yes, yes.
[Assigned counsel]: -- so, I guess, I could – and I have provided a
copy of the Bill of Particulars to you.
The defendant: Yes.
[Assigned counsel]: You have those.
(Brief pause.)
10.
[Assigned counsel]: If I could get the Court’s indulgence to get
somebody to make me a copy of the balance of the file, I can turn it over to
him right this – right before he leaves the building, Your Honor.
The court: All right. Anything else?
[Assistant attorney general]: No, Your Honor.
The court: Okay, we’ll see you Thursday morning, 8:30.
{¶ 17} The court ultimately continued the trial to December 1, 2016. In the
meantime, Jones tried to retain an attorney, but was unable to pay for private counsel. In
a November 21, 2016 “motion,” at a pretrial on November 23, 2016, and again, moments
before trial began, Jones told the court that he required the assistance of an attorney and
asked that one (or even two) be appointed. The trial court refused to take any action that
would require another continuance of the trial date.
B. A court must make proper advisements to ensure that the right to
counsel has been waived knowingly, intelligently, and voluntarily.
{¶ 18} In order to obtain a valid waiver of the right to counsel, the trial court must
adequately explain to the defendant “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 well as the dangers and disadvantages of
self-representation. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d
227, ¶ 40, 43-44, citing Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed.
11.
309 (1948). The waiver of the right to counsel must be “unequivocal and explicit.” State
v. Belt, 5th Dist. Richland No. 2019-CA-0082, 2020-Ohio-1302, ¶ 7.
{¶ 19} Whether there has been an intelligent waiver of the right to counsel
depends on the particular facts and circumstances of each case and “the background,
experience, and conduct of the accused.” State v. Suber, 154 Ohio App.3d 681, 2003-
Ohio-5210, 798 N.E.2d 684, ¶ 15 (10th Dist.), quoting Johnson v. Zerbst, 304 U.S. 458,
464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). And while “[t]here is no formula or script that
a trial court must follow in every case in order to comport with the requirements of the
Sixth Amendment,” State v. Tucker, 2016-Ohio-1353, 62 N.E.3d 903, ¶ 11 (9th Dist.),
“[a] sketchy or minimal inquiry touching upon only some of the above-enumerated
factors will not adequately establish an effective waiver of counsel.” Suber at ¶ 15, citing
State v. McQueen, 124 Ohio App.3d 444, 447, 706 N.E.2d 423 (10th Dist.1997).
{¶ 20} Under Crim.R. 44(C), waiver of counsel must occur in open court and be
recorded, and where a “serious offense” is involved, as defined by Crim.R. 2(C), a waiver
of counsel must be in writing. The failure to obtain a written waiver may constitute
harmless error if the trial court substantially complies with Crim.R. 44(A) by making “a
sufficient inquiry to determine whether the defendant fully understood and intelligently
relinquished his or her right to counsel.” Martin at ¶ 39. However, “a written waiver of
counsel is not a substitute for compliance with Crim.R. 44(C), which requires an oral
waiver in open court before the judge, recorded in accordance with Crim.R. 22.” State v.
Owens, 9th Dist. Summit No. 29098, 2019-Ohio-2206, ¶ 9.
12.
{¶ 21} “There is a presumption against finding that a defendant has waived his or
her right to counsel, and a trial court has a ‘serious and weighty responsibility’ to
determine whether the accused is knowingly, intelligently, and voluntarily waiving the
constitutional right to counsel.” Reece, 6th Dist. Lucas No. L-17-1314, 2019-Ohio-2259,
at ¶ 9. “Because self-representation entails the waiver of the Sixth Amendment right
to counsel, a trial court’s evaluation of a defendant’s request for self-representation ‘is
fraught with the possibility of error.’” State v. Patterson, 3d Dist. Hancock No. 5-19-34,
2020-Ohio-1437, ¶ 17, Cross v. United States, 893 F.2d 1287, 1290 (11th Cir.1990).
C. The trial court failed to ensure that Jones’s waiver of the
right to counsel was knowing, intelligent, and voluntary.
{¶ 22} Simply stated, the trial court made none of the required advisements here
before accepting Jones’s waiver of the right to counsel. At no point did the court advise
Jones of the nature of the charges, the statutory offenses included within them, the range
of allowable punishments thereunder—which was indeed considerable—possible
defenses to the charges and circumstances in mitigation thereof, or any other facts
essential to a broad understanding of the whole matter. And beyond telling Jones that “a
person who represents himself has a fool for a client,” the court did not advise Jones of
the dangers and disadvantages of self-representation.
{¶ 23} The written waiver was similarly deficient. It stated only that Jones had
elected to represent himself and was “knowingly making this constitutional decision to
represent himself.” So even if a written waiver could cure the complete failure to orally
13.
provide the required advisements—which it cannot—the waiver here contained none of
the required advisements.
{¶ 24} Accordingly, we find that Jones did not knowingly, intelligently, and
voluntarily waive the right to counsel. We find Jones’s first assignment of error well-
taken. We vacate his convictions and remand this matter to the trial court for a new trial.
See, e.g., Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, at ¶ 43-45
(remanding the matter for new trial where trial court “did not adequately explain the
nature of the charges, the statutory offenses included within them, the range of allowable
punishments, possible defenses, mitigation, or other facts essential to a broad
understanding of the whole matter * * *, and did not make defendant aware of dangers of
self-representation”).
III. Conclusion
{¶ 25} We find Jones’s first assignment of error well-taken. The trial court failed
to ensure that Jones’s waiver of the right to counsel was knowing, intelligent, and
voluntary. We reverse the March 8, 2018 judgment of the Sandusky County Court of
Common Pleas, vacate Jones’s convictions, and remand to the trial court for a new trial.
The state is responsible for the costs of this appeal under App.R. 24.
{¶ 26} To the clerk:
{¶ 27} The clerk is ordered to serve a copy of this decision upon appellant
Hayward Jones; Attorney Patrick J. Milligan, 18615 Detroit Avenue, Suite 201,
14.
Lakewood, Ohio, 44017; and Attorney James E. Kocka, 1000 W. Wallings Road,
Suite A, Broadview Heights, Ohio, 44147.
Judgment reversed
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
15.