State v. Belt , 2020 Ohio 1302 ( 2020 )

[Cite as State v. Belt, 2020-Ohio-1302.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2019-CA-0082
MARK BELT
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of
Common Pleas, Case No. 2019-CR-0362
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 31, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP WILLIAM T. CRAMER
Prosecuting Attorney 470 Old Worthington Road
Richland County, Ohio Suite #200
Westerville, Ohio 43082
JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2019-CA-0082 2
Hoffman, P.J.
{¶1} Defendant-appellant Mark Belt appeals his convictions and sentence
entered by the Richland County Court of Common Pleas, on one count of aiding and
abetting the illegal assembly or possession of chemicals for the manufacture of
methamphetamine and one count of possession of criminal tools, following a jury trial.
Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Officer David Rowland of the Ontario Police Department was on routine
patrol during the midnight shift on April 26, 2019, when he initiated a stop of Appellant’s
vehicle after observing Appellant driving erratically. The officer ran Appellant’s license
and learned he had twelve open driver’s license suspensions. Officer Rowland advised
Appellant he was not permitted to drive, he would be cited, and his vehicle would be
towed. During an inventory search of the vehicle, Officer Rowland found a number of
items which, when taken together, appeared to be a functional methamphetamine lab.
Appellant was arrested and transported to the Ontario Police Department for booking.
{¶3} On May 24, 2019, the Richland County Grand Jury indicted Appellant on
one count of aiding and abetting the illegal assembly or possession of chemicals for the
manufacture of methamphetamine, in violation of R.C. 2925.041(A), a felony of the third
degree; and one count of possession of criminal tools, in violation of R.C. 2923.24(A), a
felony of the fifth degree. Appellant appeared before the trial court for arraignment on
June 6, 2019, and entered pleas of not guilty to the charges. The trial court appointed
Attorney Randall Fry to represent Appellant. The matter proceeded to jury trial on July
22, 2019.
Richland County, Case No. 2019-CA-0082 3
{¶4} At the start of the second day of trial, the trial court, outside the presence of
the jury, stated it had been advised Appellant wanted a new attorney. The trial court
addressed Appellant, explaining Attorney Fry was appointed and Appellant could not fire
appointed counsel. The trial court added, as the trial had already started, it was too late
for Appellant to fire Attorney Fry and “Attorney Fry is representing you.” Tr. Vol. II at 187.
The trial court discussed the role of Attorney Fry as defense counsel, and the role of the
prosecutor. The trial court also explained the manner in which a trial is conducted. The
trial court stated it was in Appellant’s best interests to proceed with Attorney Fry
representing him. After a protracted discussion, the jury was brought in and testimony
continued. Appellant conferred with Attorney Fry throughout the remainder of the trial.
{¶5} After hearing all the evidence and deliberating, the jury found Appellant
guilty as charged. Appellant appeared before the trial court for sentencing on July 25,
2019. The trial court imposed an aggregate prison term of 48 months. The trial court
memorialized Appellant’s convictions and sentence via Sentencing Entry filed July 29,
2019.
{¶6} It is from this entry Appellant appeals, raising the following assignment of
error:
THE TRIAL COURT VIOLATED APPELLANT’S SIXTH
AMENDMENT RIGHT TO WAIVE COUNSEL AND REPRESENT
HIMSELF.
Richland County, Case No. 2019-CA-0082 4
{¶7} A criminal defendant has a constitutional right to represent himself at trial.
State v. Johnson, 112 Ohio St.3d 210, 858 N.E.2d 1144, 2006–Ohio–6404, ¶ 89, citing
Faretta v. Cal. (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. A defendant may
proceed without counsel if the defendant has made a knowing, voluntary, and intelligent
waiver of the right to counsel. State v. Martin, 103 Ohio St.3d 385, 816 N.E.2d 227, 2004–
Ohio–5471, ¶24. See, also, Crim.R. 44(A) (defendant may forgo counsel after being fully
advised, knowingly, intelligently, and voluntarily waives right to counsel). A criminal
defendant must “unequivocally and explicitly invoke” the right to self-representation.
State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 38. Requiring
that a request for self-representation be both unequivocal and explicit helps to ensure a
defendant will not “tak[e] advantage of and manipulat[e] the mutual exclusivity of the rights
to counsel and self-representation.” United States v. Frazier–El, 204 F.3d 553, 559 (4th
Cir.2000). For this reason, courts must “indulge in every reasonable presumption against
waiver” of the right to counsel. Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51
L.Ed.2d 424 (1977).
{¶8} To establish an effective waiver of the right to counsel, the trial court must
make a sufficient inquiry to determine whether the defendant fully understands and
intelligently relinquishes that right. Johnson, supra at ¶ 89, quoting State v. Gibson, 45
Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph two of the syllabus; Martin at ¶ 39.
However, the United States Supreme Court has not prescribed a precise formula or script
to be read to a defendant who indicates he desires to proceed without counsel. Johnson,
supra at ¶ 101. To be valid, a waiver of the right to counsel must be made with an
apprehension of the nature of the charges, the statutory offenses included within them,
Richland County, Case No. 2019-CA-0082 5
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. Martin, supra at ¶ 40, quoting Von Moltke v. Gillies, 332 U.S. 708,
723, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948); State v. Suber, 154 Ohio App.3d 681, 798
N.E.2d 684, 2003–Ohio–5210, ¶ 15. A trial court must make a defendant 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’.” State v. Montgomery,
10th Dist. No. 02AP–927, 2003–Ohio–2888, ¶ 14, quoting Faretta, 422 U.S. at 835, 95
S.Ct. at 2541.
{¶9} At the start of the second day of trial, the trial court, outside the presence of
the jury, stated it had been advised Appellant wanted a new attorney. The trial court
addressed Appellant, explaining Attorney Fry was appointed and Appellant could not fire
appointed counsel. The trial court added, as the trial had already started, it was too late
for Appellant to fire Attorney Fry and “Attorney Fry is representing you.” Tr. Vol. II at 187.
{¶10} Appellant responded:
* * * what I would like to say, you know, on the record is that, you
know, Fry is a good lawyer. I’m just very well spoken, very well spoken.
I’ve done my homework and research, and my attorney kind of stutters and
fumbles with his words. I think since my freedom is on the line, I may be
the best person to represent myself. I do know the law quite a bit. * * * That
being said, I did write up a very detailed explanation, and my lawyer was
going to approach and speak to you about it. And I have no idea what he
Richland County, Case No. 2019-CA-0082 6
says when he is up there with you. You know what I mean? I feel kind of
left out. Tr. Vol. II at 188.
{¶11} The trial court replied, “I think you do understand, I think, the law, but he
knows it better. He knows the language. He’s going to be able to discuss the elements
of the offense easier than you are. But I also think he can have you testify and the jury is
going to get to hear the information that you want them to know.” Tr. Vol. II at 189.
{¶12} Appellant continued:
I have no personal animosity with anyone. In fact, I’m a big supporter
of justice. That being said, I do have – you know, you know, I’m a very
powerful reader. I know I can write. I can read very powerfully. You know,
this here is a joke. It’s a travesty. And it does go quite well with my defense.
Everything that is being used against me will spoil my defense * * * You
know, if my lawyer doesn’t want to represent me properly or he’s afraid or,
you know, something like that, you know, this is my life. And I also have a
thing on my list that if I – I want you to know that I feel I am being railroaded,
and I will speak and I will not be stopped. I don’t want to make a mockery
of the courtroom. Tr. Vol. II at 190-191.
{¶13} When the trial court asked Appellant if he had any issues with Attorney Fry,
Appellant indicated he did not. Appellant simply expressed his opinion he could do a
Richland County, Case No. 2019-CA-0082 7
better job. After allowing Appellant to speak his mind, the trial court resumed the
proceedings.
{¶14} Upon review of the record, including reading the transcript portions relative
hereto, we find Appellant did not waive his right to counsel or unequivocally invoke his
right to self-representation. Although Appellant certainly made statements to the effect
he would like to actively participate in his defense, he never unequivocally stated he
wished to waive his right to counsel. Accordingly, we find the trial court did not violate
Appellant’s Sixth Amendment right to waive counsel and represent himself.
{¶15} Appellant’s sole assignment of error is overruled.
{¶16} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur