State v. Davis , 2020 Ohio 3237 ( 2020 )

[Cite as State v. Davis, 2020-Ohio-3237.]
N THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2020-A-0002
- vs - :
MATTHEW DAVIS, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula Municipal Court, Case No. 2018 CRB 01755.
Judgment: Affirmed.
Michael Franklin, Ashtabula City Solicitor, 110 West 4th Street, Ashtabula, Ohio 44004
(For Plaintiff-Appellee).
Matthew Davis, pro se, 3702 Station Avenue, Ashtabula, Ohio 44004 (For Defendant-
Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Matthew Davis (“Mr. Davis”), appeals the judgment of the
Ashtabula Municipal Court, which denied his “motion for relief after judgment under Civ.R.
60(B),” after he was convicted of menacing by stalking.
{¶2} Mr. Davis raises three assignments of error on appeal, contending the trial
court erred in denying his motion for relief from judgment because it (1) failed to address
his waiver of his right to a jury trial, (2) failed to ensure he waived his right to counsel
knowingly, voluntarily, and intelligently, and, lastly, (3) should have stopped the trial and
engaged him in a colloquy to show that his guilty plea was knowingly, voluntarily, and
intelligently entered.
{¶3} Mr. Davis’ assignments of error are without merit. Firstly, a review of the
record reveals that at his arraignment, the trial court informed Mr. Davis, and Mr. Davis
signed a written acknowledgement, that if he wished to have his case tried before a jury,
he was required to file a written jury trial demand. Secondly, the record reveals that Mr.
Davis validly waived his right to counsel after the trial court informed him of his rights and
that he signed a written waiver in open court that was attested to by the court. Lastly, the
trial court was not required to engage Mr. Davis in a Crim.R. 11(C) colloquy because he
never pleaded guilty. He was found guilty after a bench trial.
{¶4} The judgment of the Ashtabula Municipal Court is affirmed.
Substantive and Procedural Facts
{¶5} In November of 2018, Mr. Davis was arraigned on one count of menacing
by stalking, a first-degree misdemeanor in violation of R.C. 2903.211(A)(1), after several
violent altercations with his former girlfriend and the victim of his offenses, Jennifer Wells
(“Ms. Wells”). The underlying case was the companion case to two other cases, no. 18
CRB 01754 and no. 18 CRB 01727, wherein Mr. Davis was charged with assault and
menacing by stalking of Ms. Wells.
{¶6} After the trial court informed Mr. Davis of his rights in open court at his
arraignment, Mr. Davis signed an acknowledgement of his rights and a waiver of counsel.
The written waiver was also attested to by the trial court, with the judge’s signature
appearing below the signature of Mr. Davis. He acknowledged he was waiving his right
to an attorney and that he had a right to a jury trial if he demanded one in writing. He
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entered a plea of not guilty, and a bond was set with the condition that he abide by the
criminal protection order (“CPO”) that the court had granted upon motion of the
prosecutor. The CPO provided that he have no contact with Ms. Wells.
{¶7} Prior to beginning the bench trial, the trial court inquired, and Mr. Davis
affirmed that he still wanted to proceed pro se. Ms. Wells and an officer from the
Ashtabula Police Department testified, as did Mr. Davis. Mr. Davis testified that if he had
pleaded guilty, he would have a criminal record, which would hurt his business. He
admitted that he grabbed Ms. Wells’ arm at a gas station and then followed her to the
police station, and that he sent her cards and left a gift basket by her door. The state
entered into evidence pictures of a card, a letter, the gift basket with a card, as well as
recordings of phone messages from Mr. Davis to Ms. Wells.
{¶8} Several days later, the trial court found Mr. Davis guilty of menacing by
stalking, and the matter was set for sentencing. While awaiting sentencing, Ms. Wells
wrote a letter to the court stating that Mr. Davis had contacted her and violated the CPO
twice in the last three months. She asked the court to extend the CPO.
{¶9} Mr. Davis appeared at his sentencing without counsel, and the trial court
imposed a sentence of 90 days in jail, with 60 days suspended, a fine, and court costs.
The CPO was dissolved, and the trial court issued a no contact order regarding Ms. Wells.
{¶10} Upon Mr. Davis’ motion, the audio file of the hearing was emailed to Mr.
Davis. Mr. Davis also filed a motion to suspend his jail sentence, which the court denied.
The court issued another judgment entry stating Mr. Davis had violated the no contact
order prior to reporting to jail and that he was subsequently charged with felony menacing
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by stalking. The court found his jail sentence should be imposed immediately instead of
his original reporting date of October 1, 2019.
{¶11} Mr. Davis then filed a motion for relief after judgment under Civ.R. 60(B),
the denial of which is the subject of the instant appeal. In his motion, Mr. Davis requested
that the court reconsider its decision finding that he entered a guilty plea and waived his
rights to a jury trial and counsel. He alleged that he had newly discovered evidence to
support his claims.
{¶12} Mr. Davis claimed that the trial docket and the audio recordings of the
proceedings were newly discovered evidence. When he reviewed this new evidence, he
discovered that he had pleaded guilty. He argued that because he had pleaded guilty,
the trial court should have conducted a Crim.R. 11 plea colloquy to ensure his plea was
knowingly, voluntarily, and intelligently given. He also claimed that he did not waive his
right to a jury trial or to counsel and that the record did not contain a written jury trial
waiver.
{¶13} The trial court denied Mr. Davis’ motion, finding that Mr. Davis did not plead
guilty, but rather he was found guilty after a trial. Further, Mr. Davis waived his right to
counsel in writing and in open court. Lastly, Mr. Davis was charged with a petty offense
and did not demand a jury trial as required by Crim.R. 23.
{¶14} Mr. Davis now raises three assignments of error on appeal:
{¶15} “[1.] The trial court erred in denying defendant’s motion [for] relief after
judgment where it committed errors and omissions in failing to address defendant’s
waiver of right to trial by jury.
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{¶16} “[2.] Trial court committed errors and omissions in failing to secure a waiver
showing that defendant’s right to counsel was knowingly, voluntarily and intelligently
entered.
{¶17} “[3.] The trial court committed errors and omissions in failing to stop the trial
and hold a colloquy to show that the defendant’s guilty plea was knowingly, voluntarily
and intelligently entered.”
Motion for Relief from Judgment
{¶18} In all three of Mr. Davis’ assignments of error, he attacks the judgment of
the trial court denying his motion for relief from judgment pursuant to Civ.R. 60(B).
{¶19} Ohio's postconviction proceedings are civil in nature, and a Civ.R. 60(B)
motion is a proper vehicle to challenge the trial court's findings. State v. Jackson, 11th
Dist. Trumbull No. 2008-T-0024, 2010-Ohio-1270, ¶13, see State v. Jones, 11th Dist.
Ashtabula No. 2001-A-0072, 2002-Ohio-6914, ¶10.
{¶20} “A reviewing court reviews a trial court's decision on a motion for relief from
judgment to determine if the trial court abused its discretion.” (Citations omitted.) Id. at
¶14, citing Bank One, NA v. SKRL Tool & Die, Inc., 11th Dist. Lake No. 2003-L-048, 2004-
Ohio-2602, ¶15; see also GTE Automatic Elect. v. ARC Industries, 47 Ohio St.2d 146,
150 (1976). “An ‘abuse of discretion’ is one of art, connoting judgment exercised by a
court, which does not comport with reason or the record. State v. Underwood, 11th Dist.
Lake No. 2008-L-113, 2009-Ohio-2089, ¶30, citing State v. Ferranto, 112 Ohio St. 667,
676-678 (1925).” State v. Raia, 11th Dist. Portage No. 2013-P-0020, 2014-Ohio-2707,
¶9. Stated differently, an abuse of discretion is “the trial court's ‘failure to exercise sound,
reasonable, and legal decision-making.’” Id., quoting State v. Beechler, 2d Dist. Clark
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No. 09-CA-54, 2010-Ohio-1900, ¶62, quoting Black's Law Dictionary 11 (8th
Ed.Rev.2004).
{¶21} Relief from judgment may be granted pursuant to Civ.R. 60(B), which
states, in part:
{¶22} “On motion and upon such terms as are just, the court may relieve a party
or his legal representative from a final judgment, order or proceeding for the following
reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in time to move for a
new trial under Civ.R. 59(B); (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment
has been satisfied, released or discharged, or a prior judgment upon which it is based
has been reversed or otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (5) any other reason justifying relief from the
judgment.”
{¶23} A party must comply with the following requirements when filing a motion
for relief from judgment:
{¶24} “To prevail on a motion brought under Civ.R. 60(B), the movant must
demonstrate that: (1) the party has a meritorious defense or claim to present if relief is
granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)
through (5); and (3) the motion is made within a reasonable time, and, where the grounds
of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order
or proceeding was entered or taken.” GTE Automatic Elec. at paragraph two of the
syllabus.
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Newly Discovered Evidence
{¶25} At the outset, we note that Mr. Davis’ assignments of error are without merit
since he has failed to present any “newly discovered evidence which by due diligence
could not have been discovered in time to move for a new trial under Civ.R. 59(B).” The
docket and an audio recording of a hearing are simply part of the record of the case, not
evidence. Nonetheless, we will briefly address the merits of his arguments.
Waiver of Right to a Jury Trial
{¶26} In his first assignment of error, Mr. Davis contends he did not waive his right
to a jury trial and that he timely filed a written demand for one.
{¶27} Pursuant to Crim.R. 23(A), “[i]n petty offense cases, where there is a right
of jury trial, the defendant shall be tried by the court unless he demands a jury trial. Such
demand must be in writing and filed with the clerk of court not less than ten days prior to
the date set for trial, or on or before the third day following receipt of notice of the date
set for trial, whichever is later. Failure to demand a jury trial as provided in this subdivision
is a complete waiver of the right thereto.”
{¶28} A review of the record and audio recording of Mr. Davis’ arraignment reveals
that the trial court informed Mr. Davis of his right to a jury trial and that he must file a
timely written demand if he wanted to try his case before a jury. Mr. Davis then signed
an acknowledgement of his rights and waiver of counsel, which the court also signed.
The acknowledgement and waiver stated that Mr. Davis “was entitled to a trial, which may
be a jury trial provided [Mr. Davis] demand a jury trial in writing * * *.” There is no written
demand for a jury trial in the record.
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{¶29} Quite simply, the record does not support Mr. Davis’ assertion that he filed
a written demand for a jury, timely or otherwise, or his assertion that he “silently
acquiesced” to a bench trial.
{¶30} Mr. Davis’ first assignment of error is without merit.
Waiver of Right to Counsel
{¶31} In his second assignment of error, Mr. Davis contends he did not knowingly,
voluntarily, and intelligently waive his right to counsel.
{¶32} “The Sixth Amendment, as made applicable to the states by the Fourteenth
Amendment, guarantees that a defendant in a state criminal trial has an independent
constitutional right of self-representation and that he 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 (1976), paragraph one of the syllabus, citing Faretta
v. California, 422 U.S. 806 (1975). “Absent a knowing and intelligent waiver, no person
may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony,
unless he was represented by counsel at his trial.” (Emphasis deleted.) State v. Karnofel,
11th Dist. Trumbull No. 2015-T-0070, 2017-Ohio-428, ¶8, quoting State v. McCrory, 11th
Dist. Portage No. 2006-P-0017, 2006-Ohio-6348, ¶22, quoting State v. Wellman, 37 Ohio
St.2d 162 (1974), paragraph one of the syllabus, citing Argersinger v. Hamlin, 407 U.S.
25 (1972).
{¶33} Mr. Davis’ conviction constitutes a petty offense because the maximum term
of confinement for each offense is six months. See Crim.R. 2(D) and (C); R.C.
2929.24(A)(1).
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{¶34} Crim.R. 44(B), titled “Counsel in Petty Offenses,” states “[w]hen 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.” Further, Crim.R. 44(C), titled
“Waiver of Counsel,” requires that all waivers of counsel in petty offense cases “shall be
in open court and the advice and waiver shall be recorded” via “shorthand, or stenotype,
or by any other adequate mechanical, electronic or video recording device” pursuant to
Crim.R. 22.
{¶35} There is a presumption against finding that a criminal defendant has waived
his or her right to counsel. (Citations omitted.) Karnofel at ¶11. And no individual may
be imprisoned for any offense without sufficient inquiry by the trial court to assess whether
the defendant fully understands the impact of the waiver of the right to counsel. Id., citing
State v. Gabel, 11th Dist. Ashtabula No. 2008-A-0076, 2009-Ohio-3792, ¶15-16, citing
Wellman at paragraph one of the syllabus. Moreover, the state bears the burden of
overcoming the presumption against a valid waiver. (Citation omitted.) Id.{¶36} This court has recognized that “a trial court is obligated to engage in a dialog
with the defendant which will inform her of the nature of the charged offenses, any
‘included’ offenses, the range of possible punishments, any possible defenses, and any
other facts which are essential for a total understanding of the situation.” State v. Ross,
11th Dist. Trumbull No. 2016-T-0016, 2017-Ohio-709, ¶23, citing State v. Mogul, 11th
Dist. Trumbull No. 2003-T-0178, 2006-Ohio-1873, ¶20.
{¶37} A review of the record and the audio recordings of Mr. Davis’ arraignment
and trial reveals the trial court informed Mr. Davis of his right to counsel, that he could
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elect to proceed pro se or obtain representation, and that if he could not afford an attorney,
the court would appoint him one. The trial court explained the nature of the charges, the
possible sentences, as well as Mr. Davis’ rights to confront, cross-examine, subpoena
witnesses, and remain silent.
{¶38} Mr. Davis elected to proceed pro se, twice stating in open court and once
before the start of trial that he was waiving his right to counsel. At his arraignment, he
told the court he would probably speak with an attorney after leaving the courthouse and
that he would defend himself. He signed an acknowledgement and waiver of counsel, to
which the court attested with its signature below his. The waiver specifically stated:
{¶39} “2. That I have a right to an attorney, and a right to a postponement to
secure the services of an attorney;
{¶40} “3. That if I am without funds to secure the services of an attorney and the
Court finds this to be a fact, the Court will appoint an attorney to represent me without
charge[.]”
{¶41} Mr. Davis’ second assignment of error is without merit.
Guilty Plea
{¶42} In his last assignment of error, Mr. Davis contends the trial court should
have engaged in a Crim.R. 11(C) colloquy when he pleaded guilty in the middle of trial.
{¶43} A review of the record and audio recording of the trial reveals Mr. Davis’
argument is wholly without merit. Mr. Davis never pleaded guilty; rather, he was found
guilty by the trial court at the conclusion of his bench trial. Mr. Davis did discuss why he
did not plead guilty when he took the stand and testified on his own behalf. He also
admitted to grabbing Ms. Wells’ arm, as well as sending her cards and a gift basket.
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Simply because Mr. Davis admitted to these actions does not equate to a plea of guilty.
Thus, the trial court was never required to engage him in a Crim.R. 11 colloquy. He was
afforded the benefit of a full trial.
{¶44} Mr. Davis’ third assignment of error is without merit.
{¶45} The judgment of the Ashtabula Municipal Court is affirmed.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.
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