State v. Ross , 2017 Ohio 709 ( 2017 )

[Cite as State v. Ross, 2017-Ohio-709.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2016-T-0016
- vs - :
DENNIS R. ROSS, :
Defendant-Appellant. :
Criminal Appeal from the Girard Municipal Court, Case No. 2015 CRB 00226.
Judgment: Affirmed.
Michael E. Bloom, Girard City Prosecutor, Girard Municipal Court, 100 North Main
Street, Girard, OH 44420 (For Plaintiff-Appellee).
Rhys Brendan Cartwright-Jones, 42 North Phelps Street, Youngstown, OH 44503 (For
Defendant-Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Appellant, Dennis R. Ross, appeals his conviction for passing bad checks,
R.C. 2913.11(B), a misdemeanor of the first degree. Mr. Ross’ conviction followed a
bench trial in the Girard Municipal Court on September 3, 2015. Mr. Ross did not retain
counsel and prior to trial the court had the following conversation with Ross.
{¶2} “The Court: Mr. Ross, I understand you’re prepared to go forward with the
trial at this time.
{¶3} “Ross: Yes, sir.
{¶4} “The Court: All right. The prosecutor is prepared to go forward at this
time?
{¶5} “Mr. Bloom: We are, your Honor.
{¶6} “The Court: All right. We’re going to go ahead and go forward with the
trial. Since you do not have an attorney, just so you understand the procedure, the
prosecutor is going to go a head and go first. He’s going to present his case. When
he’s done presenting his case, you’ll have an opportunity to present yours. Do you
have any questions?
{¶7} “Ross: No, sir.”
{¶8} The first witness to testify at trial was Rhonda Kohn, the office manager for
Vienna Auto Repair. Ms. Kohn testified that Ross was a customer on January 14, 2015
when Vienna Auto Repair repaired and replaced the right front wheel bearing and axle
joint on Ross’ 2004 Dodge 250 pickup truck. According to Ms. Kohn, Ross paid the
$404.44 bill for the repair with a personal check. When Ms. Kohn presented the check
to the bank a few weeks later it was returned for non-sufficient funds.
{¶9} Ms. Kohn testified that she informed Ross about the non-sufficient funds
and that he (Ross) stated that he would be in to take care of it. Ms. Kohn also identified
a copy of Ross’ bill that shows a notation stating: Called 2/10/15 will stop in to pay on
2/11/15. A copy of the check showing that it had been returned for non-sufficient funds
was also identified by Ms. Kohn. These exhibits were entered into evidence without
objection. Mr. Ross did not cross examine Ms. Kohn.
{¶10} Mr. Ross then took the stand to testify in his own defense. Ross stated
that two days after he had his truck repaired at Vienna Auto Repair the right front wheel
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of his truck came off while he was driving, causing an accident that damaged his truck
and another vehicle. Ross testified that the mechanic who looked at his truck after the
wheel fell off told Ross that whoever had made the repair had failed to put the cotter pin
in the bolt that holds the wheel hub onto the truck.
{¶11} Mr. Ross then testified that he called Vienna Auto Repair on January 18,
2015, and told the mechanic that he was issuing a stop payment on the check due to
the alleged defective repair. Ross also stated he told the mechanic that this matter
would proceed through a civil matter in court due to the accident. Ross also testified
that he had never spoken to Ms. Kohn on the phone regarding his check being returned
for non-sufficient funds.
{¶12} During cross examination the prosecutor asked the court to take judicial
notice that January 18, 2015 was a Sunday. On cross-examination Ross admitted that
he did not bring a copy of the crash report caused by the alleged defective repair. Ross
also admitted that he did not have a copy of the stop-payment order with him at court.
{¶13} The prosecutor then called Sergeant Michael Sheehy of the Vienna
Township Police Department. Sergeant Sheehy testified that he spoke to Ross on the
phone regarding the dishonored check on February 26, 2015. The prosecutor then
asked Sergeant Sheehy if, hearing Ross’ voice in court, he had any reason to believe
that his phone call was not with Ross: Sergeant Sheehy answered “no.”
{¶14} Asked what Ross told him during the phone conversation, Sergeant
Sheehy testified that Ross told him that his (Ross’) bank accounts were seized by the
IRS and that was why the check came back indicating non-sufficient funds. Mr. Ross
cross examined Sergeant Sheehy and asked how the sergeant could be sure that it was
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Ross that he spoke to on the phone. Sergeant Sheehy answered that Ross’ voice
sounded the same as it did on the phone. Sergeant Sheehy also added that Ross, in
person, admitted to talking to the sergeant on the phone during a pretrial in the case
with another prosecutor.
{¶15} Other than denying that he had ever made such an admission, Ross had
no further questions of the sergeant. The trial then concluded. The trial court found
Ross guilty of passing a bad check and passed the matter for sentencing. At
sentencing Ross was fined $500 with $500 of the fine suspended; he was sentenced to
30 days in jail with 30 days suspended; and placed on six months non-reporting
probation. Mr. Ross was also ordered to pay $403 in restitution.
{¶16} Mr. Ross timely appeals and raises the following assignments of error:
{¶17} “[1.] The trial court erred in proceeding to trial without a valid counsel
waiver, given that Ross had no attorney.
{¶18} “[2.] The trial court erred in entering a conviction without sufficient
evidence to do so.”
{¶19} Under the first assignment of error Ross argues that the trial court erred
by allowing him to proceed with his defense pro se without first inquiring whether his
waiver of that right was made knowingly and intelligently.
{¶20} “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, paragraph one of the syllabus
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(1976), citing Faretta v. California, 422 U.S. 806 (1975). (emphasis added). “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.” State v. Wellman, 37 Ohio St.2d 162, paragraph one of the syllabus (1974),
citing Argersinger v. Hamlin, 407 U.S. 25 (1972). (emphasis added).
{¶21} “In order to establish an effective waiver of right to counsel, the trial court
must make sufficient inquiry to determine whether defendant fully understands and
intelligently relinquishes that right.” Gibson, 45 Ohio St.2d 366, paragraph two of the
syllabus. “Presuming a waiver of the Sixth Amendment right of an accused to the
assistance of counsel from a silent record is impermissible. The record must show, or
there must be an allegation and evidence which shows, that an accused was offered
counsel but intelligently and understandingly rejected the offer. Anything less is not a
waiver.” Wellman, 37 Ohio St.2d 162, paragraph two of the syllabus, citing Carnley v.
Cochran, 369 U.S. 506 (1962).
{¶22} Pursuant to 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.” Crim.R. 22 provides
that waiver of counsel “may be recorded in shorthand, or stenotype, or by any other
adequate mechanical, electronic or video recording device.”
{¶23} 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.
Mogul, 11th Dist. Trumbull No. 2003-T-0178, 2006-Ohio-1873, ¶20.
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{¶24} In this matter the trial court did not engage in any dialog with Ross
regarding the nature of the charges against him, the possible sentence, or any other
information that would inform Ross “of the inherent difficulties in attempting to represent
[him]self throughout a criminal case.” Id. The trial court’s dialog with Ross was limited
to an acknowledgement that Ross did not have legal representation and an explanation
that the prosecutor presents his case first. This dialog is insufficient to establish that
Ross’ decision to proceed without an attorney was made knowingly and intelligently.
State v. Boughner (Dec. 17, 1999), 11th Dist. No. 98-G-2161, at *8, 1999 WL 1297606(“a waiver of counsel is knowing, intelligent, and voluntary only when the defendant is
made aware of the dangers and disadvantages of self-representation such that the
record establishes that the defendant knowingly made the choice with his eyes wide
open”).
{¶25} Where a defendant has been convicted of a petty offense without counsel,
and absent a valid waiver of counsel, any jail sentence must be vacated although the
conviction itself still stands. Mogul, 2006-Ohio-1873, at ¶26. The reason for this is that
“the right to appointed counsel under the Sixth and Fourteenth Amendments in state
criminal proceedings is limited to cases that lead to actual imprisonment.
Consequently, by vacating any term of confinement imposed on an unrepresented
misdemeanant, any potential violation of the constitutional right to counsel is thereby
eradicated. In other words, if the jail time is thrown out on appeal, then there is no
cognizable violation of the Sixth Amendment right to counsel because, as the Supreme
Court of Ohio has held, ‘uncounseled misdemeanor convictions are constitutionally valid
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if the offender is not actually incarcerated.’” Boughner, *10, 1999 WL 1297606(emphasis sic), citing State v. Brandon, 45 Ohio St.3d 85, 86 (1989).
{¶26} In the present matter Ross was sentenced to 30 days in jail with 30 days
being suspended; he was also placed on six months non-reporting probation that
terminated on July 1, 2016. Inasmuch as Ross was not incarcerated his conviction is
constitutionally valid. Given that Ross’ term of probation has already ended—any
issues regarding his 30 day suspended sentence are moot. State v. Adams, 8th Dist.
Cuyahoga No. 85267, 2005-Ohio-3837, ¶5.
{¶27} Ross’ first assignment of error lacks merit.
{¶28} Ross’ second assignment of error states the trial court erred in entering a
conviction without sufficient evidence to do so.
{¶29} As this court stated in State v. Schlee, 11th Dist. Lake No. 93–L–082,
1994 WL 738452, *4–5 (Dec. 23, 1994):
{¶30} “‘Sufficiency’ challenges whether the prosecution has presented evidence
on each element of the offense to allow the matter to go to the jury, while ‘manifest
weight’ contests the believability of the evidence presented.
{¶31} “‘“(* * *) [T]he test (for sufficiency of the evidence) is whether after viewing
the probative evidence and the inference[s] drawn therefrom in the light most favorable
to the prosecution, any rational trier of fact could have found all of the elements of the
offense beyond a reasonable doubt. The claim of insufficient evidence invokes an
inquiry about due process. It raises a question of law, the resolution of which does not
allow the court to weigh the evidence.’”
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{¶32} “In other words, the standard to be applied on a question concerning
sufficiency is: when viewing the evidence ‘in a light most favorable to the prosecution,’
‘(a) reviewing court (should) not reverse a jury verdict where there is substantial
evidence upon which the jury could reasonably conclude that all of the elements of an
offense have been proven beyond a reasonable doubt.’” (emphasis sic.) (Citations
omitted.)
{¶33} “[A] reviewing court must look to the evidence presented * * * to assess
whether the state offered evidence on each statutory element of the offense, so that a
rational trier of fact may infer that the offense was committed beyond a reasonable
doubt.” State v. March, 11th Dist. Lake No. 98–L–065, 1999 WL 535675, *3 (July 16,
1999). The evidence is to be viewed in a light most favorable to the prosecution when
conducting this inquiry. State v. Jenks, 61 Ohio St.3d 259, paragraph two of the
syllabus (1991). Further, the verdict will not be disturbed on appeal unless the
reviewing court finds that reasonable minds could not have arrived at the conclusion
reached by the trier of fact. State v. Dennis, 79 Ohio St.3d 421, 430 (1997).
{¶34} Here the evidence, viewed in a light most favorable to the prosecution,
was sufficient for the trial court to reasonably conclude that all of the elements of the
offense of passing a bad check were proved beyond a reasonable doubt. There is no
dispute that the check Ross wrote to Vienna Auto Repair was returned for non-sufficient
funds. Ms. Kohn testified that she spoke to Ross on the phone in February, a month
after the repair on his truck, and he stated that he would be in to pay it. Sergeant
Sheehy testified that Ross told him on February 26, 2015 that the check was returned
because the IRS had seized his bank account.
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{¶35} Mr. Ross testified that he called Vienna Auto Repair on January 18, 2015
(a Sunday) and told the mechanic that he was stopping payment on the check because
the wheel was not properly repaired—which led to his being involved in an accident with
another vehicle. Mr. Ross did not provide a copy of the accident report, nor did he
provide any documentation regarding the lawsuit that his insurance company was
allegedly preparing against Vienna Auto Repair related to the improper repair. Mr. Ross
denied speaking on the phone to Ms. Kohn; Ross also denied that he had admitted to
Sergeant Sheehy at the pre-trial that he had spoken to Sheehy on the phone.
{¶36} Sufficient evidence was presented for reasonable minds to arrive at the
conclusion reached by the trial court.
{¶37} Ross’ second assignment of error lacks merit.
{¶38} The judgment of the Girard Municipal Court is affirmed.
CYNTHIA WESTCOTT RICE, P.J.,
TIMOTHY P. CANNON J.,
concur.
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