State v. Blackshear , 2019 Ohio 655 ( 2019 )

[Cite as State v. Blackshear, 2019-Ohio-655.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals No. L-18-1103
Appellee Trial Court No. TRC-17-18903
CRB-17-10759
v.
Ishmial A. Blackshear DECISION AND JUDGMENT
Appellant Decided: February 22, 2019
*****
David Toska, Chief Prosecutor, and Henry Schaefer,
Assistant Prosecutor, for appellee.
Tyler Naud Jechrua, for appellant.
*****
MAYLE, P.J.
Introduction
{¶ 1} Defendant-appellant, Ishmael Blackshear Bey, appeals his conviction in the
Toledo Municipal Court following a bench trial in which the trial court found him guilty
of operating a vehicle while impaired. Bey represented himself at trial. On appeal, Bey
contends that the trial court failed to advise him adequately of the disadvantages of
proceeding pro se at trial, and therefore, that his waiver of counsel was invalid. Bey also
challenges the sufficiency and manifest weight of the evidence against him. After a
thorough review of the record, we find that the trial court failed to make a sufficient
inquiry to determine whether Bey knowingly, intelligently, and voluntarily relinquished
his right to counsel. Accordingly, the judgment of the trial court is reversed, and the case
is remanded for a new trial.
Facts and Procedural History
{¶ 2} On August 27, 2017, Toledo Police Officers George Stauch and Richard
Miller were traveling westward on Dorr Street when they received a 911 dispatch of a
possibly impaired driver. The call had originated with Brandon Rizzo, a civilian driver,
who called 911 after witnessing a truck driving “recklessly” near the intersection of Dorr
Street and Secor Road. Rizzo told the 911 operator that the driver was “swerving all over
the place, hitting the curbs. He almost took out like four girls crossing the street.”
{¶ 3} The two officers located a truck that matched the description that had been
provided by the 911 dispatcher. They began following it, and pulled the truck over after
they observed what they believed to be a lane violation while turning.
{¶ 4} Officer Miller approached the driver’s side window and spoke with Bey,
who was driving. Officer Stauch approached the passenger-side window, which was
occupied by an unidentified male. On the “dashcam” video of the stop, Officer Miller
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can be heard asking for Bey’s driver’s license and then saying “I hope we’re not drinking
that beer.” After Bey provided his driver’s license, the police officers returned to their
squad car to call in the license information.
{¶ 5} While communicating with police headquarters, Trooper Kevin Doerle, with
the Ohio State Highway Patrol, pulled behind the Toledo Police patrol car. Trooper
Doerle was on a general patrol in Lucas County, and the police officers asked if Trooper
Doerle wanted to take the lead in the investigation. The trooper agreed, and he and
Officer Miller then switched the order of their respective vehicles, such that Trooper
Doerle moved directly behind Bey’s truck, and Office Miller pulled behind the trooper.
Trooper Doerle’s vehicle was also equipped with a dashcam.
{¶ 6} Trooper Doerle, who has received specific training on conducting field
sobriety tests and identifying indicators of impairment, noticed the strong odor of alcohol
coming from the vehicle and observed a blue can in the center console cup holder.
Doerle asked Bey how much alcohol he had consumed. Bey said “some.” Trooper
Doerle requested, and then ordered, Bey to exit the vehicle multiple times. He eventually
exited the vehicle, but refused to allow any type of field sobriety test.
{¶ 7} While talking to Bey away from the vehicle, Doerle “still detected the strong
odor of an alcoholic beverage.” He also noticed that Bey was “swaying slightly;” his
eyes appeared “bloodshot and glassy;” and his voice was “thick-tongued.” Trooper
Doerle placed Bey under arrest for operating a vehicle under the influence of alcohol, and
recited “BMV Form 2255,” which explains the consequences of refusing to undergo field
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sobriety testing, including mandatory license suspension. Later, at the jail, Trooper
Doerle offered to perform a breathalyzer on Bey, but Bey again refused to be tested.
{¶ 8} Bey was charged with violating R.C. 4511.19(A)(1)(a), “Driving while
under the influence of alcohol, drugs;” a misdemeanor of the first degree and R.C.
4511.36, “Rules for turns at Intersections,” a minor misdemeanor. Bey was separately
charged with possessing “less than” 100 grams of marijuana, in violation of R.C.
2925.11(C)(3)(a), a minor misdemeanor. The possession charge was subsequently
consolidated with the traffic citations.
{¶ 9} On August 28, 2017, at the initial hearing, Bey stated that he did not intend
to hire his own attorney. On September 7, 2017, during a pretrial conference, he told the
trial court that it was “possible” that he would represent himself at trial.
{¶ 10} On October 16, 2017, the parties appeared for a pretrial conference. Bey
indicated that he intended to represent himself. The court stated, “you are entitled to
have an attorney throughout this process, and if you cannot afford one and if you
financially qualify, the Court would appoint a public defender to represent you. * * *
[Y]ou can hire your own attorney, and I would suggest that you do so [because] it does
not appear that you have a particularly good grasp of the legal system.” The court also
mentioned that he may wish to have an attorney review the evidence that Bey had just
received from the prosecutor that morning. Bey stated, “I wouldn’t know till [sic] I look
at [the evidence],” and requested a day to consider the issue. The court granted Bey a
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two-day continuance, and stated “take a look at it, and if you want to consider appointed
attorney, I can look at it.”
{¶ 11} On October 18, 2017, Bey told the court that he decided that he would not
be hiring an attorney, and he informed the court that he had filed several motions. He
filed a motion to suppress, arguing that there was no probable cause for the initial stop
and that there was no reasonable suspicion to order him out of his vehicle. He also filed a
motion relating to certain discovery that he had not yet received from the state.
{¶ 12} Regarding Bey’s intention to represent himself, the court stated “I think I
mentioned this to you last time. You have a right to an attorney throughout this process.
If you cannot afford one and you financially qualify, the Court will appoint one for you.
You also have the right to hire your own attorney, but you also have the Constitutional
right to represent yourself. Is it your intention to represent yourself throughout this
criminal matter?” Bey responded “That is.”
{¶ 13} The parties then appeared for a January 3, 2018 pretrial hearing, at which
time the court denied Bey’s motion to suppress and then set a trial date. The court said to
Bey, “[a]gain, I would suggest [that], although you * * * represented yourself well at the
Suppression Hearing * * * jury trials are different. I would again encourage you to hire
an attorney, though you are not required to do so. Any questions?” Bey had no
questions, and the subject of his self-representation was not raised again.
{¶ 14} A bench trial was held on March 13, 2018, and Bey represented himself
throughout the proceeding. The court took the matter under advisement and delivered its
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verdict on April 2, 2018. It found Bey not guilty as to the drug possession and turning
violation offenses. It found Bey guilty as to the OVI charge. The court sentenced him to
serve 90 days in jail, with 87 of the days suspended. In lieu of jail, the court ordered that
Bey participate in a three-day driver intervention program. It also imposed a $375 fine,
six months of inactive probation, and twelve months of a license suspension.
{¶ 15} Bey appealed, and this court, acting sua sponte, appointed him appellate
counsel. Bey asserts two assignments of error for our review.
1. The trial court erred when it convicted Mr. Bey because the
evidence presented by the city both lacked the sufficiency to support the
conviction and the conviction was against the manifest weight of the
evidence presented.
2. The trial court erred when Mr. Bey was never properly informed
of his right to counsel, nor was there an acknowledgment by Mr. Bey on the
record.
Law and Analysis
{¶ 16} We begin with Bey’s second assignment of error in which he claims that
the trial court did not explain the consequences of his decision to represent himself and
that his lack of understanding of those consequences led him to proceed pro se and
ultimately to his conviction. Whether a defendant knowingly, intelligently, and
voluntarily waived the right to counsel is an issue that we review de novo. State v.
Griffin, 10th Dist. Franklin No 10AP-902, 2011-Ohio-4250.
6.
{¶ 17} The prosecution of any offense that includes imprisonment as a sentence―
whether such offense is classified as petty, misdemeanor, or felony―triggers a
defendant’s right to counsel. State v. Wellman, 37 Ohio St.2d 162, 309 N.E.2d 915(1974) paragraph one of the syllabus, citing Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct.
2006, 32 L.Ed. 2d 530 (1972).
{¶ 18} A defendant’s right to counsel during critical stages of the prosecution is
guaranteed by the Sixth Amendment of the United States Constitution, made applicable
to the states through the Fourteenth Amendment, and by Article I, Section 10, of the Ohio
Constitution. Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799(1963); State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227. The right
to counsel, however, “implicitly embodies a ‘correlative right to dispense with a lawyer's
help.’” Martin at ¶ 23, quoting Adams v. United States ex rel. McCann, 317 U.S. 269,
279, 63 S.Ct. 236, 87 L.Ed. 268 (1942). The right to represent oneself “is thwarted when
counsel is forced upon an unwilling defendant, who alone bears the risks of a potential
conviction.” State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶
26, citing Faretta v. California, 422 U.S. 806, 819-820, 95 S.Ct. 2525, 45 L.Ed.2d 562(1975). Nonetheless, if the accused “is not represented by counsel and has not
competently and intelligently waived his constitutional right, the Sixth Amendment
stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life
or his liberty.” State v. Gibson, 45 Ohio St.2d 366, 376, 345 N.E.2d 399 (1976), quoting
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
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{¶ 19} For that reason, 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. Gibson at 376, quoting Von
Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309 (1948). “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.” Id. “Although defendant[s] need not [themselves] have the skill
and experience of a lawyer in order competently and intelligently to choose self-
representation, [they] should be made aware of the dangers and disadvantages of self-
representation, so that the record will establish that [they] know what [they are] doing
and [their] choice is made with eyes open.” (Quotation omitted.) Faretta at 835.
{¶ 20} For the waiver of counsel to be valid, a trial court must engage in a
colloquy with the defendant to ensure that he or she “has been ‘made aware of the
dangers and disadvantages of self-representation.’” Obermiller at ¶ 43, quoting Faretta at
835. “The specific nature of the colloquy varies from case to case, depending on the
nature and circumstances of the charged offenses and potential penalties the defendant
faces.” Id.; see also State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d
1144, ¶ 101, quoting Iowa v. Tovar , 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d. 209
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(2004) (Noting that the United States Supreme Court “ha[s] not * * * prescribed any
formula or script to be read to a defendant who states that he elects to proceed without
counsel.”).
{¶ 21} In Gibson, the Supreme Court of Ohio held that a valid waiver of one’s
right to counsel must be made with apprehension to “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 at 377, quoting
Von Moltke at 723. Other Ohio courts have noted that a court “should” also explain that
the defendant “will be required to follow the same rules of procedure and evidence which
normally govern the conduct of a trial.” State v. Furr, 1st Hamilton Dist. No. C-170046,
2018-Ohio-2205, ¶ 9, quoting State v. Doane, 69 Ohio App.3d 638, 646-647, 591 N.E.2d
737 (11th Dist.1990). But, again, “[t]he information a defendant must possess in order to
make an intelligent election* * *will depend on a range of case-specific factors, including
the defendant’s education or sophistication, the complex or easily grasped nature of the
charge, and the stage of the proceeding.”) Johnson at ¶ 101, quoting Tovar at 88; see
also Obermiller at ¶ 43 (“The specific nature of the colloquy varies from case to case.”).
{¶ 22} In addition, Crim.R. 44 governs the procedure through which a defendant
may waive his right to counsel. The rule provides, in relevant part,
(A) Counsel in serious offenses. Where a defendant charged with a
serious offense is unable to obtain counsel, counsel shall be assigned to
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represent him at every stage of the proceedings from his initial appearance
before a court through appeal as of right, unless the defendant, after being
fully advised of his right to assigned counsel, knowingly, intelligently, and
voluntarily waives his right to counsel.
(B) Counsel in petty offenses. Where a defendant charged with a
petty offense is unable to obtain counsel, the court may assign counsel to
represent 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.
(C) Waiver of counsel. Waiver of counsel shall be in open court and
the advice and waiver shall be recorded as provided in Rule 22 [Recording
of Proceedings]. In addition, in serious offense cases the waiver shall be in
writing.
{¶ 23} Pursuant to Crim.R. 44 and 22, the waiver of counsel must take place in
open court, must be recorded, and in cases of serious offenses, the waiver must be in
writing. A serious offense “means any felony, and any misdemeanor for which the
penalty prescribed by law includes confinement for more than six months.” Crim.R.
2(C). A petty offense is defined as “a misdemeanor other than a serious offense.”
Crim.R. 2(D).
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{¶ 24} Here, Bey was charged violating R.C. 4511.19(A)(1)(a), which provides
that “[n]o person shall operate any vehicle * * * within this state, if, at the time of the
operation, any of the following apply: [t]he person is under the influence of alcohol, a
drug of abuse, or a combination of them.” A violation of Section (A)(1)(a) is a
misdemeanor of the first degree. As a first time OVI offender, Bey was subject to the
penalty of not more than six months in prison. R.C. 4511.19(G)(1)(a). Therefore, Bey’s
OVI charge qualifies as a misdemeanor, petty offense and is governed by Crim.R. 44(B)
and (C). Village of Highland Hills v. Nicholson, 8th Dist. Cuyahoga No. 100577, 2014-
Ohio-4671, ¶ 16; see also State v. Victor, 2015-Ohio-5520, 11th Dist. Geauga Nos. 2014-
G-3220 and 2014-G-3241, ¶ 31. And, because the charge was not a “serious offense,”
Bey’s waiver of the right to counsel was not required to be in writing. Id.{¶ 25} Nonetheless, after reviewing the entire record, we must conclude that Bey
did not knowingly, intelligently, and voluntarily waive his right to counsel. Although
Bey clearly and unequivocally asserted his right to represent himself at trial, the trial
court had a corresponding “serious and weighty responsibility” to ensure that Bey was
making that choice “with eyes open.” Gibson, 45 Ohio St. at 377, 345 N.E.2d 399;
Faretta at 835. As discussed above, the law is clear: a pro-se defendant proceeds to trial
“with eyes open” only after he or she is “made aware of the dangers and disadvantages of
self-representation.” Obermiller at ¶43, quoting Faretta at 835. Here, that did not occur.
Although the trial court repeatedly informed Bey of his constitutional right to counsel and
explicitly “encouraged” him to proceed to trial with the assistance of an attorney, the
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court failed to engage in any colloquy to ensure that Bey understood the dangers and
disadvantages of self-representation. For that reason, we must follow the strong
presumption against waiver and conclude that Bey did not knowingly, intelligently, and
voluntarily relinquish his right to counsel. See City of Toledo v. Garmon, 6th Dist. Lucas
No. L-12-1206, 2013-Ohio-4413, ¶24 (Finding that the defendant did not waive her right
to counsel because the court “failed to ensure that [she] understood the nature of the
charges against her or the possible defense to those charges” and the court “failed to
advise [the defendant] of the dangers of self-representation.”).
{¶ 26} We therefore sustain Bey’s second assignment of error, vacate his OVI
conviction, and remand for a new trial where the court must either appoint counsel to
Bey, assuming he qualifies, or have the proper colloquy with him to ensure that he is
voluntarily, knowingly, and intelligently waiving his right to counsel. Vill. of Highland
Hills at ¶ 18. Of course, Bey may not be retried for the offenses for which he was already
acquitted: marijuana possession and turning violation. Id. Finally, in light of our
decision with regard to Bey’s second assignment of error, we find that his first
assignment of error is moot, and we decline to address it. App.R. 12(A)(1)(c).
{¶ 27} Pursuant to App.R. 24, the city is ordered to pay the costs of this appeal.
Judgment reversed.
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L-18-1103
State of Ohio/City of
Toledo v. Bey
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, 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/.
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