State v. Wallace , 2024 Ohio 4886 ( 2024 )

[Cite as State v. Wallace, 2024-Ohio-4886.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-220509
C-220510
Plaintiff-Appellee, : TRIAL NOS. B-1902817
B-1906386
vs. :
O P I N I O N.
JOEL WALLACE, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: October 9, 2024
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Ernest W. Lee, Jr.,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Bryan R. Perkins, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Judge.
{¶1} Defendant-appellant Joel Wallace appeals his convictions by a jury in
the Hamilton County Court of Common Pleas in the case numbered B-1902817 for
failing to give notice of an address change in violation of R.C. 2950.05 and in the case
numbered B-1906386 for failing to register as a sex offender in violation of R.C.
2950.04, both felonies of the third degree. The record before us reveals that Wallace
did not knowingly, voluntarily, and intelligently waive his right to counsel before
proceeding to represent himself in these cases. We accordingly reverse Wallace’s
convictions and remand the matter to the trial court for further proceedings consistent
with this opinion.
Factual and Procedural Background
{¶2} Wallace is required to register as a sex offender. See State v. Wallace,
2020-Ohio-3959, ¶ 9 (1st. Dist.). On May 31, 2019, Wallace was indicted in the case
numbered B-1902817 for failing to provide notice of an address change as part of his
sex-offender registration. On October 31, 2019, Wallace was arraigned, and counsel
was appointed to represent him. On November 4, 2019, Wallace was released on his
own recognizance (“OR”) with the condition that he wear an electronic-monitoring
unit (“EMU”).
{¶3} On November 14, 2019, the matter was set for a pretrial hearing. At the
hearing, the State explained that Wallace would be indicted for a separate offense,
because he had failed to complete his sex-offender registration upon his being released
from the Hamilton County Justice Center (“Justice Center”). Both the State and
defense counsel suggested that Wallace struggled with his mental health. Based on
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these concerns, the trial court revoked Wallace’s bond in the case numbered B-
1902817 and ordered that he be held to undergo a mental health evaluation.
{¶4} On November 19, 2019, Wallace was indicted in the case numbered B-
1906386 for violating his duty to register as a sex offender. A few days later, on
November 26, 2019, Wallace’s previous bond of OR plus EMU was reinstated, and
Wallace was released from custody. He then filed the first of several motions in which
he sought to represent himself against the pending indictments.
{¶5} On December 11, 2019, the trial court held a status report in both cases
for the purpose of addressing Wallace’s competency to stand trial. At this point, the
court-ordered mental health evaluation had been completed, and the trial court asked
if Wallace would stipulate to the competency report. Defense counsel not only
declined to do so, but also highlighted that Wallace’s motion to represent himself
remained pending. The trial court later permitted Wallace’s first attorney to withdraw
and appointed new counsel.
{¶6} Months later, Wallace’s second attorney withdrew, and a third one was
appointed. Prior to the new appointment, Wallace filed another motion to represent
himself. Ultimately the third attorney withdrew as well, and Wallace suggested that
he would hire retained counsel.
{¶7} On May 17, 2021, the trial court scheduled a hearing to inquire about
Wallace’s representation. At that hearing, Wallace explained that he had not in fact
hired an attorney and that he believed that the pending charges should be dismissed.
The trial court urged him not to proceed without representation, explaining that it
would be difficult for him to defend himself. But the trial court did not engage in a
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OHIO FIRST DISTRICT COURT OF APPEALS
colloquy to assess Wallace’s understanding of the dangers of self-representation in a
felony criminal case.
{¶8} On September 8, 2021, another hearing was held. At this hearing, the
State asked the trial court to inquire into Wallace’s position with respect to counsel.
In response to the trial court’s questions in this regard, Wallace requested access to
standby counsel—meaning an attorney who would be available to represent him in the
event he changed his mind about representing himself—and inquired whether
accepting an appointed attorney would delay the proceedings. At no point in its
dialogue with Wallace did the trial court probe his understanding of the right to
counsel or whether he was knowingly giving it up. Instead the trial court denied
Wallace’s request for standby counsel and permitted him to move forward by
representing himself.
{¶9} That same day, the matter proceeded to a competency hearing, at which
the State presented evidence in support of its position that Wallace was competent to
stand trial. Wallace represented himself at the hearing. Relying upon the evidence
presented by the State, the trial court found Wallace to be competent.
{¶10} Later, on September 13, 2021, the matter came before the trial court on
the issue of Wallace’s bond. At that hearing, the State asked the trial court to again
inquire about Wallace’s status with obtaining or proceeding with counsel. When it
did, Wallace explained that he would be interested in “advisory counsel” to assist him
in representing himself. The trial court, however, did not inquire further into the
status of Wallace’s representation, nor did it entertain Wallace’s request for an
advisory attorney.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} On January 31, 2022, both of Wallace’s cases were set for a jury trial.
Jury trials had been temporarily suspended at the time, however, due to COVID-19,
and the trial court continued the matter. The State once again asked the trial court to
inquire about whether Wallace wanted an attorney to represent him. In response, the
trial court urged Wallace to accept representation, but engaged in no further colloquy.
{¶12} On April 12, 2022, the trial court ordered a second mental health
evaluation to assess Wallace’s competency to stand trial. It committed Wallace to
Summit Behavioral Healthcare on June 13, 2022, for the evaluation.
{¶13} On August 20, 2022, the trial court held a second competency hearing
at which Wallace acted as his own counsel. The State called two doctors who testified
that, although he had previously suffered a traumatic brain injury, Wallace was
competent to stand trial. On the basis of this evidence, the trial court found Wallace
to be competent.
{¶14} On September 26, 2022, the trial court held yet another hearing.
Apparently confusing his current charges with a previous 2018 legal matter, Wallace
repeatedly argued that the charges in the cases numbered B-1902817 and B-1906386
had already been dismissed.1 Wallace also contended that he was not required to
register as sex offender. After attempting to explain to Wallace why his arguments
were not legally correct, the trial court continued the matter to the next day for a jury
trial.
{¶15} On September 27, 2022, the trial court conducted a jury trial on both of
Wallace’s indictments. Before the trial began, the trial court granted a motion in
limine filed by the State to exclude any mention of Wallace’s 2018 case.
1 Wallace was a party to a 2018 legal matter that has since been sealed and expunged.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} The State called two witnesses at trial, Deputy Josh Taylor and Deputy
Edward Schinkal, both of the Hamilton County Sheriff’s Office (“Sheriff’s Office”).
Taylor testified to his role in the sex-offender notification and verification process on
behalf of the Sheriff’s Office. According to Taylor, the Sheriff’s Office is notified when
a registered sex offender is released from the Hamilton County Justice Center. That
notification triggers the number of days within which the offender must report to the
Sheriff’s Office for address verification.
{¶17} Taylor identified Wallace and testified that he began registering as a
sex-offender in August 2010 following a conviction for rape. He indicated that Wallace
failed to register upon being released from the Justice Center, despite the fact that the
Sheriff’s Office sent a notification to Wallace by mail notifying him of the duty to
register following his release. Taylor further testified that an officer twice attempted
to locate Wallace at the address on file but was unsuccessful. As a result, the Sheriff’s
Office concluded that Wallace was not actually residing at the listed address of his
current registration.
{¶18} Schinkal testified that he was in charge of investigating potential sex-
offender-registration violations for the Sheriff’s Office. Like Taylor, Schinkal
identified Wallace in the courtroom. According to Schinkal, the Sheriff’s Office
received an anonymous tip that Wallace was not living at the address on file with the
Sheriff’s Office and was therefore not abiding by the requirements of his registration.
Following the tip, Schinkal confirmed that Wallace was in fact not living at the
specified address.
{¶19} Schinkal testified that he made several attempts to contact Wallace to
give him a chance to comply with the registration requirement. Schinkal also testified
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OHIO FIRST DISTRICT COURT OF APPEALS
that, in December 2019, during a conversation with Schinkal and Wallace’s attorney,
Wallace admitted that he was not living at the listed address. Schinkal also explained
that when Wallace was released from the Justice Center, he was informed that he was
required to register with the Sheriff’s Office; however, Wallace failed to register after
his release.
{¶20} Wallace also testified. His testimony was cut short by the trial court,
however, because he began discussing the excluded 2018 case. What little the court
did allow Wallace to say surrounded the fact that a 2018 case to which he was a party
had been dismissed, sealed, and expunged. Therefore, he believed that he did not have
to register.
{¶21} The jury found Wallace guilty of both charges. The trial court then
sentenced Wallace to a term of three years of community control on each count, with
the terms to run consecutively.
{¶22} Wallace now appeals.
Analysis
{¶23} Wallace raises four assignments of error on appeal. First, Wallace
argues that he did not knowingly, voluntarily, and intelligently waive his right to
counsel prior to his competency hearing and jury trial. Second, Wallace argues that
his speedy-trial rights were violated. Third, Wallace argues that there was insufficient
evidence to support his convictions. Lastly, Wallace argues that his convictions are
contrary to the manifest weight of the evidence.
Waiver of Counsel
{¶24} In his first assignment of error, Wallace argues that he did not
knowingly, intelligently, and voluntarily waive his right to counsel prior to his
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OHIO FIRST DISTRICT COURT OF APPEALS
competency hearing and jury trial. We review the propriety of a defendant’s waiver of
the right to counsel de novo. State v. Jackson, 2019-Ohio-2933, ¶ 5 (1st Dist.).
{¶25} A defendant’s right to counsel during the critical stages of the
prosecution is guaranteed by the Sixth Amendment to the United States Constitution
and analogous provisions of the Ohio Constitution. State v. Sherman, 2023-Ohio-
2142, ¶ 19 (1st Dist.). This includes the independent constitutional right to dispense
with a lawyer’s help when a defendant knowingly, intelligently, and voluntarily
chooses to waive counsel. Id.{¶26} In felony cases, Crim.R. 44 provides that a defendant must waive the
right to counsel in open court and in writing. See Crim.R. 44(A) and (C); Crim.R. 2(C).
Because a written waiver is not constitutionally required, a trial court must only
substantially comply with the in-court standard in order for a defendant’s waiver of
counsel to be valid. State v. Martin, 103 Ohio St.3d 385, 392 (2004). The failure to
execute a written waiver is therefore harmless error where the trial court engages in a
sufficient colloquy to determine whether the defendant fully understands and
intelligently relinquishes the right to counsel. Id.{¶27} An appropriate Crim.R. 44 colloquy touches on both the nature of the
charges against the defendant, as well as the role of defense counsel. See id. It includes
“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 the other facts essential to a broad
understanding of the whole matter.” Id.{¶28} In addition to covering this basic information, the trial court must also
inform the defendant of the disadvantages of self-representation and explain that the
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OHIO FIRST DISTRICT COURT OF APPEALS
defendant will be required to follow the same rules of procedure and evidence that
normally govern the conduct of a trial. State v. Ott, 2017-Ohio-521, ¶ 5 (9th Dist.). In
the process, a defendant, “should be made aware of the dangers and disadvantages of
self-representation, so that the record will establish that ‘he knows what he is doing
and his choice is made with eyes open.’” Faretta v. California, 422 U.S. 806, 835
(1975). “Whether a defendant’s choice was made with eyes open typically depend[s],
in each case, upon the particular facts and circumstances surrounding that case,
including the background, experience, and conduct of the accused.” (Cleaned up.)
State v. Obermiller, 2016-Ohio-1594, ¶ 30. The failure to advise a defendant of the
nature of the charges, the allowable penalties, and what possible defenses and
mitigation might be available is a factor in determining whether the defendant
sufficiently waived the right to counsel. Ott at ¶ 6.
{¶29} Applying these standards to the proceedings below, Wallace asserts that
he did not knowingly, voluntarily, and intelligently waive his right to counsel. More
specifically, Wallace points to the absence of an inquiry by the trial court to determine
whether he fully understood his right to counsel and to establish that he intelligently
relinquished it. Wallace is correct, in that the record reveals the absence of a colloquy
that substantially complies with Crim.R. 44.
{¶30} While Wallace first filed a motion to represent himself on December 2,
2019, the trial court did not engage in any inquiry with him to assess his understanding
of the right to counsel until May 17, 2021. The trial court did permit Wallace’s counsel
to withdraw and appointed substitute counsel, but it did not address Wallace
individually until the May 17, 2021 hearing, at which the following conversation took
place:
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OHIO FIRST DISTRICT COURT OF APPEALS
Court: We are set for counsel today. Mr. Wallace, did you hire
someone?
Defendant: No, I did not. I prefer to go pro se being that the details of
this case no one seems to want to bring to light. The charges against me
have been expunged, sealed and dismissed; and I have the paperwork
to show and prove that the charges have been expunged, sealed, and
dismissed. And I have been held unlawfully on Title 18 USC. My due
process and constitutional rights are being violated at this time.
Court: Okay. Mr. Wallace, I was under the impression that you were
going to hire someone or we would appoint someone. It’s my
understanding we did try to send someone to you and you wouldn’t
accept them. So at this time, what I am going to do is I am going to try
one more time. I never recommend nor do I like anyone representing
themselves in court because a lawyer who represents themselves has a
fool for a client. That’s how it works.
...
So what I am going to do is I am going to send you back. I am going to
send someone to visit you, and we will see if that works out and we will
try to get this resolved. It’s just not that - - you should be able to get this
resolved easily.
{¶31} The trial court again addressed Wallace on the subject of his
representation at the September 8, 2021 hearing:
Court: Mr. Wallace, are you requesting counsel today?
Defendant: I would love to have advisory counsel, standby counsel - -
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OHIO FIRST DISTRICT COURT OF APPEALS
Court: Mr. Wallace, I have to make this clear to you. There’s no such
thing. Either you have someone represent you or you represent yourself.
You don’t have somebody that stands by. Once you start your case,
you’re the attorney on it. They can’t advise you. They can’t sit at the table
with you. They can’t do any of that. So you need to be aware of that. You
do it or we appoint an attorney and you help that attorney. Okay?
Defendant: Okay
Court: I just want you to be clear, these are serious charges. And in
most cases, these types of charges we’re able to work out. I rarely have
these kind of charges go to trial, although they could, which is the reason
you have an attorney; to help you work out something, if at all possible.
These are failures to register, correct?
State: Yes, Your Honor.
Court: Both of them. So your option is to request counsel of this Court,
and if I give you counsel you’re married to that counsel. They will walk
you through this case and either take it to trial or help you work out a
deal with the prosecutor; or, you know, if they’re able to get the
prosecutor to work the charges down they can do that too. But otherwise
I have to do this competency hearing today to make sure that you’re able
to represent yourself if that’s the route you choose.
Defendant: Okay. I understand what you’re saying. If I did desire
counsel would my other stuff start over? Because I’ve been held in here
27 days in lieu of bond, and that’s a long time to hold somebody
incarcerated or in detainment without giving bond. I don’t want to stay
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OHIO FIRST DISTRICT COURT OF APPEALS
in here and keep this going. I want to see my mom. My dad is real ill. So
this is what I would say. If this would continue out without starting - -
without no delay I would accept counsel.
Court: I’ll tell you what we can do. If you get counsel, your counsel can
come and talk to the Court to try to convince this Court to reduce - -
you’re being held without bond right now because of an EMD violation.
Correct?
...
Court: Mr. Wallace, what I would suggest, because we do have the
Court Clinic person, I do need to go ahead and go forward in spite of - -
State: It depends, Your Honor, because counsel can stipulate - - we can
go ahead and do it, but until he gets counsel he may want to reinvent the
wheel and do it again. So we need to know the threshold question is does
he want counsel or not; if he does, then we would set it for pretrial to see
what that counsel wanted to do after reviewing everything.
Court: Instead whether they will just stipulate to it or whether they
want to have the doctor come back?
State: Correct, but if he declines, we go ahead and proceed with this.
Court: And then we can probably discuss bond at that time.
State: Correct
Court: Okay, with new counsel. All right, Mr. Wallace, are you
requesting counsel at this time, or would you prefer to go forward with
the hearing?
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OHIO FIRST DISTRICT COURT OF APPEALS
Defendant: If I go forward with the hearing when can I go to trial?
When is the soonest I can go to trial?
Court: A while, a while, . . .
...
Defendant: There’s no plea agreement, no signed plea agreement
between me and the State of Ohio, and that’s the whole issue. Now if I
accept an attorney will I get a bond?
Court: I don’t know. I have to discuss that with the attorney. I don’t
know. This case has gotten so old there’s a possibility, yes, but it’s just
been so long since we’ve had that discussion because you keep firing
your attorneys. Every time you get one and we think we’re going to trial
you fire that attorney, and make it difficult to have anything happen.
Defendant: I can’t get an ineffective assistance of counsel?
Court: No. You’re getting amazing attorneys. I know who these people
are. They’re not bad attorneys. They’re very, very good.
...
Court: Let’s go forward. You just need to tell me Mr. Wallace - - I’ve got
other people that have to be heard, and I’ve got people in the back
waiting on me in a conference. So would you like to go forward - - would
you like an attorney or would you like to go forward today with a
competency hearing? And the reason that we have to go forward is
because you don’t have an attorney. You can’t stipulate to your own
competency.
Defendant: I say we go forward.
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{¶32} The trial court also engaged with Wallace at the September 13, 2021
hearing about whether he wanted counsel:
State: Your Honor, I would ask you to inquire one more time, does he
want counsel for this.
Court: Mr. Wallace, I’m still pushing counsel if you’ll take it.
Defendant: I wouldn’t mind advisory counsel, but everybody just is,
how should I say it, not putting up the facts of the case.
Court: Right. All right, Mr. Wallace. Okay. He’ll get a date for you, if
you’re released, then when you need to come back for a report.
{¶33} Even taken together, these colloquies did not substantially comply with
Crim.R. 44. While the trial court did advise Wallace that representing himself was a
fraught proposition, at no point did the trial court ask Wallace about his
understanding of the charges he faced in both cases, the potential punishments
involved, or possible defenses he may be able to raise. See Martin, 103 Ohio St.3d at
392. This information was critical to Wallace’s understanding of his right to counsel,
as it helped elucidate the risks he faced by moving forward without an attorney.
{¶34} Nor did the trial court assess Wallace’s understanding of his right to an
attorney, which was also germane to the voluntariness of his waiver. Id. To be sure,
the trial court did discourage Wallace from representing himself, and the State, to its
credit, kept the issue front and center at every hearing. But at no point did the trial
court ask Wallace to acknowledge on the record that he was entitled to an attorney,
nor did the trial court probe Wallace’s understanding of the possible defenses and
mitigation an attorney might raise on his behalf.
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{¶35} We note that the need for a Crim.R. 44-compliant colloquy was
heightened in this case, given the repeated questions about Wallace’s competency. See
Obermiller, 2016-Ohio-1594, at ¶ 30 (requiring consideration of the defendant’s
background and conduct in assessing the voluntariness of a waiver of the right to
counsel). We find it unusual that Wallace was permitted to represent himself at a
hearing to challenge his competency to stand trial absent a more detailed inquiry into
his understanding of the role of counsel. We also note that Wallace raised repeated
questions about the overlap between the two indictments at issue here and an
unrelated 2018 case that legal counsel may have addressed. A more searching colloquy
about the role of counsel and Wallace’s right to representation would undoubtedly
have benefitted Wallace’s understanding in this regard.
{¶36} Moreover, the record also contains no actual waiver of the right to
counsel. While Wallace did file various motions seeking to represent himself, he at no
time indicated that he wanted to dispense with his constitutional right to an attorney
in a clear and straightforward way. In fact, at various points throughout his
conversations with the trial court, he asked for assistance from attorneys, either in a
standby or advisory capacity or in a way that would not delay his trial.
{¶37} Thus, the trial court failed to substantially comply with the
requirements of Crim.R. 44 in allowing Wallace to proceed without counsel. The trial
court failed to explain the nature of the charges Wallace faced, the range of possible
punishments, and the defenses or mitigation that an attorney could raise on Wallace’s
behalf. The trial court also failed to secure an actual waiver of the right to counsel,
instead permitting Wallace to represent himself after he in essence requested the
assistance of an attorney.
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{¶38} We therefore sustain Wallace’s first assignment of error, reverse
Wallace’s convictions on this basis, and remand the matter for further proceedings.
Speedy Trial
{¶39} In his second assignment of error, Wallace argues that his right to
receive a speedy trial was violated. Because this assignment of error would result in
discharge if granted, we consider it for the purpose of determining the appropriate
remedy in this appeal.
{¶40} We review alleged speedy-trial errors under a blended standard of
review. We defer to the trial court’s factual findings if they are supported by
competent, credible evidence. State v. Cheatham, 2021-Ohio-2495, ¶ 10 (1st Dist.).
We review legal questions in the context of speedy-trial questions de novo. Id.{¶41} The origins of the right to a speedy trial are constitutional. State v.
Long, 163 Ohio St.3d 179, ¶ 13 (2020). Ohio has additionally codified the right to a
speedy trial in R.C. 2945.71. The statute requires that persons charged with felonies
be brought to trial within 270 days. See R.C. 2945.71(C)(2). Each day that a defendant
is held in jail in lieu of bond is counted as three days. See Cheatham at ¶ 11, citing R.C.
2945.71(E). As a result, a defendant who is held pending felony charges must be
brought to trial within 90 days.
{¶42} R.C. 2945.72 sets forth a number of tolling events that extend the time
in which a defendant must be brought to trial. These include the time during which a
defendant’s competency to stand trial is being assessed, any period of delay
necessitated by the accused’s lack of counsel, and any continuance granted by motion
of the accused. See R.C. 2945.72(B), (C) and (H); see also State v. Martin, 2019-Ohio-
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2010, ¶ 15. The time during which jury trials were suspended due to COVID-19 also
tolls statutory speedy-trial time. See State v. Tuttle, 2022-Ohio-303, ¶ 31 (8th Dist.).
In addition, a defendant may expressly waive speedy-trial time in writing. State v.
Ramey, 2012-Ohio-2904, ¶ 18.
{¶43} Here, the record indicates that time was extended to assess Wallace’s
competency twice, and that a number of continuances were granted because Wallace
requested to represent himself rather than to be represented by the series of appointed
attorneys who worked on his case. Time was also tolled due to COVID delays. In
addition, Wallace expressly waived the speedy-trial timelines by seeking continuances
to obtain counsel and by signing written waivers of the right to a speedy trial. Wallace
was also not detained for the entirety of the pretrial period, and only those days he
spent in jail count towards the three-for-one calculation under R.C. 2945.71(E).
{¶44} Because the record shows that either Wallace or COVID caused the
delays in the proceedings about which he now complains and that Wallace expressly
waived his right to a speedy trial in writing on numerous occasions, we overrule his
second assignment of error.
Sufficiency of the Evidence
{¶45} In his third assignment of error, Wallace argues that his convictions are
not supported by sufficient evidence. We consider this assignment of error for the
purpose of determining the correct remedy in Wallace’s appeal.
{¶46} To determine whether a conviction is supported by sufficient evidence,
we inquire “whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574
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(1991), paragraph two of the syllabus. See State v. Curry, 2020-Ohio-1230, ¶ 11 (1st
Dist.).
A. The Case Numbered B-1902817: Notice of Change of Address
{¶47} Pursuant to R.C. 2950.05(A), an offender is required to provide written
notice of an address change to the sheriff of the county of residence at least 20 days
prior to changing the address. Failure to provide this required notice is a violation of
R.C. 2950.05(F).
{¶48} “Change in address includes any circumstance in which the old address
for the sexual offender is no longer valid, regardless of whether the offender has a new
address. In other words, an address changes when one no longer lives at the address
given to the sheriff of the county in which the offender resides.” (Cleaned up.) State
v. Overton, 2024-Ohio-1425, ¶ 23 (5th Dist.).
{¶49} The State presented sufficient evidence at trial that Wallace committed
this offense. Schinkal testified that he could not locate Wallace at the address he
provided to the Sheriff’s Office and that Wallace had not changed his address despite
being notified to do so. Schinkal also testified that Wallace admitted in front of his
attorney that he was no longer living at the provided address.
{¶50} Wallace argues that an unresolved motion to suppress challenged the
admissibility of his statement and that we therefore should not consider it.2 There are
several problems with Wallace’s position. For one, the motion Wallace references is a
one-page, handwritten document that fails to specify the evidence he seeks to
suppress. Because he did not preserve any arguments specific to his statement, he has
2 Wallace is correct that the trial court never ruled on his motion to suppress. A motion not resolved
by the trial court is presumed to be denied. State ex rel. Scott v. Streetsboro, 2016-Ohio-3308, ¶
14.
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waived the ability to challenge it now. State v. Self, 56 Ohio St.3d 73, 81 (1990). And
even if Wallace preserved the issue below, he has presented no substantive legal
arguments as to the basis of suppression that would enable us to exclude the
statement. To this end, he did not present an assignment of error arguing that the
introduction of his statement violated his Fifth Amendment right against self-
incrimination, so the issue also is not properly before us. See App.R. 11(A).
{¶51} But even if we agreed with Wallace that his statement should not have
been admitted, we consider all the evidence, including improperly admitted evidence,
in determining whether a defendant’s conviction is supported by sufficient evidence.
See State v. Kareski, 2013-Ohio-4008, ¶ 24. Wallace’s statement to Schinkal therefore
supports his conviction for failure to notify the sheriff of a change of address,
regardless of whether it was correcty admitted at trial.
{¶52} Wallace further challenges the evidence establishing his identity. He
contends that there was no evidence identifying him as the same Joel Wallace who was
ordered to register as a sex offender. However, both deputies identified him in the
courtroom. The State also submitted an exhibit entitled “Hamilton County Sheriff’s
Office, Cincinnati, Ohio Bureau of Identification Folder Information Sheet,” which
bears a clear picture of Wallace. Wallace’s identity was therefore established by
sufficient evidence.
{¶53} As a result, after considering the evidence in the light most favorable to
the State, we conclude that the State provided sufficient evidence to prove that Wallace
failed to notify the sheriff of an address change. We therefore overrule Wallace’s third
assignment of error as to the case numbered B-1902817.
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B. The Case Numbered B-1906386: Duty to Register
{¶54} R.C. 2950.04 governs the duty to register for convicted sex offenders.
An incarcerated offender must register upon release into the community. See State v.
Wright, 2023-Ohio-2134, ¶ 42 (10th Dist.).
{¶55} In Wallace, 2020-Ohio-3959, we explained the applicability and scope
of Wallace’s duty to register as a sexual predator. This classification imposes a lifetime
duty to register every 90 days on sex offenders in Wallace’s registration category. State
v. Doyle, 2010-Ohio-3339, ¶ 3 (2d Dist.). The evidence presented at trial
demonstrated that Wallace’s 90-day registration period occurred while he was being
held in the Justice Center in the case numbered B-1902817. As a result, he was
required to register upon his release from the Justice Center. See R.C. 2950.07 and
2950.04(A)(2).
{¶56} Schinkal testified that the Sheriff’s Office was notified that Wallace, a
registered sex offender, had been released from the Justice Center. Schinkal explained
that Wallace also received a form detailing his registration requirements at the time of
his release. Schinkal testified that, despite the Sheriff’s Office’s numerous attempts to
locate Wallace after he was released, Wallace failed to register as required by law.
{¶57} Given Schinkal’s testimony, we hold that the evidence was sufficient to
convict Wallace of a violation of his duty to register. We accordingly overrule Wallace’s
third assignment of error as to the case numbered B-1906386.
{¶58} In light of our dispositions of Wallace’s first three assignments of error,
Wallace’s challenge to the manifest weight of the evidence is moot, and we decline to
address it.
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OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶59} The trial court failed to substantially comply with Crim.R. 44, and
Wallace’s waiver of his right to counsel is therefore invalid. As a result, Wallace’s first
assignment of error is sustained, his convictions are reversed, and this cause is
remanded for further proceedings consistent with this opinion. We overrule Wallace’s
second and third assignments of error regarding a speedy trial and the sufficiency of
the evidence respectively. We decline to address Wallace’s manifest-weight challenge
as moot.
Judgment reversed and cause remanded.
ZAYAS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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