State v. White

[Cite as State v. White, 2022-Ohio-665.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 21AP-337
v. : (M.C. No. 2018 CRB 023590)
Larry J. White, Jr., : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on March 8, 2022
On brief: Zachary M. Klein, City Attorney, Melanie R.
Tobias-Hunter, and Orly Ahroni, for appellee. Argued: Orly
Ahroni.
On brief: Anzelmo Law, and James A. Anzelmo, for
appellant. Argued: James A. Anzelmo.
APPEAL from the Franklin County Municipal Court
KLATT, J.
{¶ 1} Defendant-appellant, Larry J. White, Jr., appeals from a judgment entered
by the Franklin County Municipal Court revoking his probation and imposing the balance
of his suspended jail sentence. For the following reasons, we reverse the trial court's
judgment and remand the matter for a new probation revocation hearing.
{¶ 2} On July 9, 2019 in case No. 2018 CRB 023590, appellant, represented by a
public defender, entered a guilty plea to one count of theft in violation of R.C. 2913.02(A)(1),
a first-degree misdemeanor, which is punishable by a maximum of 180 days confinement.
See R.C. 2929.24(A)(1). The trial court imposed a 180-day jail sentence, credited appellant
No. 21AP-337 2
4 days for time served, and suspended the remaining 176 days for a period of 2 years. The
court also ordered, as a "specific condition," that appellant stay away from Walmart and
Target.1
{¶ 3} That same day, the Franklin County Municipal Court Probation Services
Department ("probation department") filed a document entitled "Conditions of Probation,"
advising appellant that the sentencing judge had suspended a portion of his sentence and
placed him on probation for a period of two years upon compliance with certain terms and
conditions. Those terms and conditions included, as relevant here, that "[y]ou shall not
violate any law (Federal, State, or Local). You shall report any arrest, citation of a violation
of law, conviction or any other contact with a law enforcement officer to your probation
officer no later than the next business day." In addition, appellant was to "abide by all
conditions and orders imposed upon you by this Court and/or your probation officer." The
document includes appellant's signature acknowledging that he read and received a copy
of the probation conditions, understood them, and would abide by them. (July 9, 2019
Conditions of Probation at 1.)
{¶ 4} Approximately five months later, on December 19, 2019, the probation
department filed a "Statement of Violations" alleging that appellant had violated the
conditions of his probation in that he was charged on November 14, 2019 with theft in
Cambridge Municipal Court (case No. 19CRB01363-A).
{¶ 5} On January 16, 2020, the probation department filed an "Addendum" to its
"Statement of Violations" alleging that appellant violated the conditions of his probation in
that he was charged on January 13, 2020 in Franklin County Municipal Court with fifth-
degree felony theft (case No. 2020 CRA 000800), criminal trespass (case No. 2020 CRB
000799), driving under suspension (case No. 2020 TRD 102311-1), and failure to register—
expired tags (case No. 2020 TRD 102311-2). The probation department also alleged that
appellant had violated the condition that he stay away from Walmart.
{¶ 6} On January 23, 2020, the probation department filed an "Addendum #2" to
its "Statement of Violations" alleging that appellant violated the conditions of his probation
in that he was indicted on January 22, 2020 on a fifth-degree felony theft charge in Franklin
1 The trial court also ordered appellant to complete 24 hours of community service by August 31, 2019.
No. 21AP-337 3
County Common Pleas Court (case No. 20 CR 000379).2 A probation revocation hearing
was scheduled for February 27, 2020. Appellant failed to appear at that hearing and a
warrant was issued for his arrest.
{¶ 7} On March 9, 2020, the probation department filed an "Addendum #3" to its
"Statement of Violations" alleging that appellant violated the conditions of his probation in
that he was charged on March 4, 2020 in Hocking County Municipal Court with
"obstructing" (case No. CRB2000184).
{¶ 8} By entry dated December 19, 2020, the trial court "re-enter[ed]" the same
public defender that represented appellant in his plea/sentencing proceeding as counsel for
appellant in the probation revocation proceedings.
{¶ 9} On January 11, 2021, the probation department filed an "Addendum #4" to
its "Statement of Violations" alleging that appellant violated the conditions of his probation
in that on January 4, 2011, he was found guilty of theft in Franklin County Municipal Court
case No. 20CRB 18153.3
{¶ 10} In an entry issued June 15, 2021, the trial court again appointed the same
public defender as counsel and set the probation revocation hearing for June 28, 2021.
{¶ 11} At the June 28, 2021 hearing, appellant appeared without counsel; no
prosecutor was present. The trial court averred that two cases were to be heard: case Nos.
2018 CRB 23590 and 2020 CRB 14746. The court further stated that it had been informed
in case No. 2020 CRB 14746 that appellant wanted to discharge his public defender and
seek other legal representation. After obtaining assurances from appellant that such was
appellant's intention, the trial court discharged the public defender and continued the case
for a jury trial.
{¶ 12} Thereafter, the trial court addressed the probation revocation in 2018 CRB
23590. The court asked appellant if he had reviewed the statements of violations that had
2 The indictment arose from the January 13, 2020 incident.
3 The probation department attached the sentencing entry in case No. 20CRB 18153 to "Addendum #4" to
the "Statement of Violations." That entry states that appellant, represented by a public defender, pleaded
guilty to theft in violation of R.C. 2913.02(A)(1); the trial court imposed a 180-day jail sentence, credited
appellant with 19 days for time served, suspended the remaining 161 days for a period of 2 years, and
ordered him to stay away from all Walmart stores.
No. 21AP-337 4
been filed in the matter; appellant responded affirmatively. The trial court then briefly
summarized the violations as follows:
It says you had a new charge of theft from Cambridge; driving
under suspension conviction; a Felony 5 theft charge that was
filed on January 13th, after you'd been on probation in this
case for about six months; obstructing official business in
Hocking Municipal Court; and you had a conviction of a
misdemeanor theft offense * * * Case No. 2020 CRB 18153
* * * also something that occurred after you were placed on
community control in this case. Is that all right?
(June 28, 2021 Tr. at 3.)
{¶ 13} Appellant stated that he had not been convicted of any of the crimes and was
"still going to court" on all of the cases. Id. When asked to confirm that he was convicted
of a theft offense in 2020 CRB 18153, appellant responded "I'm not familiar with that
charge, sir." Id.{¶ 14} Without further inquiry into appellant's assertions, the trial court asked
appellant if he had anything to say on his behalf. Appellant responded:
I just want to say I know I'm getting revoked on my probation,
but I still have other cases in different counties that have to go
through, and I have felonies. I understand that this is a
misdemeanor, but I have the felonies * * * that will be sending
me to prison.
Id. at 4.
{¶ 15} The court replied:
Mr. White, what I just heard you say is you have so many
charges that I ought to be lenient on you because you need to
go and face all of the other charges and that somebody
eventually is going to send you to prison. You are on probation
in this case for theft, and you've been convicted of a new theft
charge. There is really no reason for me to continue your
community control. I'm not going to do it. You had 150 days
suspended after the last 26 days suspended jail on this charge.
I'll credit you with 17 days since you've been here * * * until
yesterday. The balance of 133 are enforced starting today.
That's all.
Id.
No. 21AP-337 5
{¶ 16} Following the hearing, the trial court memorialized its oral decision revoking
appellant's probation and imposing the remaining 133-day jail sentence via a "Revocation
Decision" filed June 28, 2021. The form decision includes the following statement: "The
Defendant was/was not represented by counsel__________." (Emphasis added.)
Neither alternative was circled, and the space provided for counsel's name was left blank.
{¶ 17} Appellant timely appeals, advancing two assignments of error for review:
[I]. During the community control revocation hearing, Larry
White was denied the right to assistance of counsel in
violation of the Sixth Amendment to the United States
Constitution.
[II]. The trial court denied White's Due Process rights,
guaranteed by the Fifth and Fourteenth Amendments to the
United States Constitution, when it failed to hold the hearings
required for community control revocation proceedings.
{¶ 18} In his first assignment of error, appellant contends that he was denied his
constitutional right to assistance of counsel at the probation revocation hearing. We agree.
{¶ 19} Pursuant to the Sixth Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution, a criminal defendant has the right to
assistance of counsel. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 22. The
right to counsel applies in misdemeanor cases, including petty offense cases, that could
result in imprisonment. State v. Downie, 183 Ohio App.3d 665, 2009-Ohio-4643, ¶ 17 (7th
Dist.); Argersinger v. Hamlin, 407 U.S. 25 (1972); State v. Paugh, 10th Dist. No. 79AP-
828, 1980 Ohio App. LEXIS 10977 (May 6, 1980). The principle extends to cases involving
a suspended sentence, capable of subsequent revocation, resulting in incarceration. State
v. Davis, 2nd Dist. No. 23248, 2009-Ohio-4786, ¶ 32, citing Alabama v. Shelton, 535 U.S.
654 (2002).
{¶ 20} Crim.R. 2(D) defines a "petty offense" as "a misdemeanor other than a serious
offense." Under Crim.R. 2(C), a "serious offense" is "any felony, and any misdemeanor for
which the penalty prescribed by law includes confinement for more than six months."
{¶ 21} Where, as in the present case, a defendant is charged with a "petty offense,"
Crim.R. 44(B) governs the appointment of counsel and provides:
Where a defendant charged with a petty offense is unable to
obtain counsel, the court may assign counsel to represent the
No. 21AP-337 6
defendant. When a defendant charged with a petty offense is
unable to obtain counsel, no sentence of confinement may be
imposed upon the defendant, unless after being fully advised
by the court, the defendant knowingly, intelligently, and
voluntarily waives assignment of counsel.
{¶ 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."
{¶ 23} Crim.R. 32.3, captioned "Revocation of Probation," provides in part:
(A) Hearing. The court shall not * * * revoke probation except
after a hearing at which the defendant shall be present and
apprised of the grounds on which action is proposed. * * *
(B) Counsel. The defendant shall have the right to be
represented by retained counsel and shall be so advised. * * *
Where a defendant convicted of a petty offense is unable to
obtain counsel, the court may assign counsel to represent the
defendant.
(C) Confinement in petty offense cases. If confinement after
conviction was precluded by Crim.R. 44(B), revocation of
probation shall not result in confinement.
If confinement after conviction was not precluded by Crim.R.
44(B), revocation of probation shall not result in confinement
unless, at the revocation hearing, there is compliance with
Crim.R.44(B).
(D) Waiver of counsel. Waiver of counsel shall be as prescribed
in Crim.R. 44(C).
{¶ 24} A criminal defendant has the independent constitutional right of self-
representation. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 23; Faretta v. California,
422 U.S. 806, 819 (1975). Thus, a defendant may proceed to defend himself or herself
without counsel when he or she voluntarily, intelligently, and knowingly elects to do so.
Martin at ¶ 24, citing State v. Gibson, 45 Ohio St.2d 366 (1976).
{¶ 25} Courts must indulge every reasonable presumption against the waiver of a
fundamental constitutional right including the right to be represented by counsel. State v.
Dyer, 117 Ohio App.3d 92, 95 (2d Dist.1996). A court cannot infer waiver of counsel from
a defendant's silence. State v. Wellman, 37 Ohio St.2d 162 (1974), paragraph two of the
syllabus. Rather, the waiver must affirmatively appear in the record, and the state bears
No. 21AP-337 7
the burden of overcoming the presumption against a valid waiver. Id. An appellate court
conducts an independent review to determine whether a defendant voluntarily,
intelligently, and knowingly waived the right to counsel based on the totality of the
circumstances. State v. Perdue 2d Dist. No. 23151, 2010-Ohio-565, ¶ 43, citing State v.
Gatewood, 2d Dist. No. 2008 CA 64, 2009-Ohio-5610, ¶ 33.
{¶ 26} As noted above, the trial court re-appointed the public defender to represent
appellant at the revocation hearing; however, appellant appeared without counsel.
Although the trial court acknowledged and ultimately permitted appellant's request to
discharge his public defender4 and seek other legal representation in case No. 2020 CRB
14746, appellant did not specifically state on the record that he wished to discharge his
public defender in case No. 2018 CRB 023590. The record contains no indication that the
public defender was present at the hearing. Indeed, there was no discussion or even
mention of his public defender regarding the probation revocation. The court could not
infer from appellant's silence that he wished to waive his right to counsel and proceed pro
se. Wellman. It is readily apparent from the transcript of the revocation hearing that
appellant was never advised of his right to assistance of counsel and was not asked whether
he wished to waive that right. Rather than engaging in the appropriate colloquy with
appellant regarding his constitutional right to counsel and whether he wished to waive that
right, the trial court informed appellant of the alleged violations, asked him if he had
anything to say on his behalf, and then revoked appellant's probation. The record lacks any
indication that appellant knowingly, intelligently, and voluntarily waived his right to
counsel prior to the revocation of his probation and the imposition of the balance of his
suspended sentence.
{¶ 27} Thus, pursuant to Crim.R. 32.3 and 44, in the absence of a valid waiver, in
open court, of appellant's right to counsel, the court could not lawfully revoke appellant's
probation and impose the balance of his suspended sentence. Thus, the judgment revoking
appellant's probation must be reversed and the matter remanded to the trial court for a new
probation revocation hearing. We note that plaintiff-appellee, State of Ohio, concedes
error.
4 The record does not reveal whether the public defender appointed in 2020 CRB 14746 is the same public
defender appointed in 2018 CRB 023950.
No. 21AP-337 8
{¶ 28} For the foregoing reasons, appellant's first assignment is sustained.
{¶ 29} In his second assignment of error, appellant contends that the trial court
denied his constitutional right to due process when it failed to hold the appropriate hearings
required for revocation of probation. Our disposition of appellant's first assignment of
error renders moot appellant's second assignment of error, and this court need not address
it. State v. Brown, 10th Dist. No. 17AP-351, 2018-Ohio-1476, ¶ 26 ("our resolution of
[appellant's] first assignment of error renders moot her second and third assignments of
error and we need not address them").
{¶ 30} For the foregoing reasons, appellant's first assignment of error is sustained,
his second assignment of error is moot, and the judgment of Franklin County Municipal
Court is hereby reversed and remanded to that court for a new probation revocation
hearing.
Judgment reversed and case remanded with instructions.
DORRIAN and MENTEL, JJ., concur.