State v. Robinson

[Cite as State v. Robinson, 2016-Ohio-3330.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-150346
TRIAL NO. B-1305335
Plaintiff-Appellee, :
vs. : O P I N I O N.
STANLEY DION ROBINSON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: June 10, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David H. Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
STAUTBERG, Judge.
{¶1} Defendant-appellant Stanley Dion Robinson was indicted for and found
guilty by a jury of (1) trafficking in heroin, (2) having a weapon while under a
disability, (3) carrying a concealed weapon, and (4) receiving stolen property. The
trial court merged the carrying a concealed weapon count and the receiving stolen
property count with the having a weapon while under a disability count, and
convicted Robinson of trafficking in heroin and having a weapon while under a
disability. The trial court sentenced Robinson to a total of 72 months’ imprisonment.
Robinson has appealed his convictions, asserting three assignments of error. We
reverse that portion of the trial court’s judgment convicting Robinson of trafficking
in heroin as a third degree felony, and remand this cause for the trial court to enter a
judgment convicting Robinson of trafficking in heroin as a fourth degree felony. We
affirm the trial court’s judgment in all other respects.
Procedural Posture
{¶2} At the arraignment before a magistrate on September 6, 2013, Robinson,
who proceeded pro se, refused to plead to the charges in the indictment. Instead, he
asserted that he was a “sovereign citizen” and was in front of the court “under duress
and threat on behalf of the matters.” A not guilty plea was entered for him, and the
magistrate set bond at $100,000. Several days later, the trial court appointed
defense counsel for Robinson.
{¶3} Thereafter, Robinson filed several pro se filings. He first filed a
“Notification of Reservation of Rights U.C.C. 1-308 U.C.C. 1-207” on October 13,
2013. On April 11, 2104, he separately filed a “Notice of Motion for Preliminary
Hearing Transcripts” and a “Notice for Motion to Appear Before the Court,” in which
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he expressed his desire to represent himself and alleged a conspiracy when the trial
court appointed defense counsel to represent him. Because Robinson was
represented, the trial court struck Robinson’s motions. Robinson made another
filing on July 8, 2014, entitled “Notice of Motions, Defendants [sic] Motion of None
[sic] Acceptance of Plea, Contract or Jurisdiction, Motion to Challenge Subject
Matter Jurisdiction, and Motion to Dismiss.” On July 15, 2014, the trial court struck
that filing from the record.
{¶4} On July 28, 2014, the trial court ordered that Robinson undergo a
psychiatric examination by the Court Clinic Forensic Services in order to determine
his mental condition. At a hearing on the matter on September 23, 2014, Robinson’s
defense counsel stipulated to the Court Clinic Forensic Services’ report that found
Robinson competent to stand trial.
{¶5} On December 1, 2014, Robinson filed another pro se motion entitled
“Motion to Dismiss/Remove Court Appointed Counsel, and Notice of
Reestablishment of Defendants [sic] Sixth (6) Amendment Rights.” The trial court
did not strike that motion from the record.
{¶6} Immediately prior to trial, Robinson reiterated that he wanted to proceed
pro se. The trial court first explained to Robinson the state’s burden of proof, the
charges and the possible penalties he was facing upon conviction, as well as the
state’s proposed plea offer. Upon Robinson’s rejection of the plea offer, the trial
court proceeded patiently with Robinson, engaging him in a thorough and candid
discussion about self-representation—specifically, the requirements for a knowing,
intelligent, and voluntary waiver of counsel. The discussion that followed, stemming
from Robinson’s assertion that he was a Moorish-American, and therefore a
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“sovereign citizen,” culminated in the trial court permitting Robinson to proceed pro
se.
{¶7} The case proceeded to a jury trial, during which Robinson actively
participated. The state presented eight witnesses who were cross-examined by
Robinson. Robinson signed a written waiver of counsel on the second day of trial. At
the conclusion of the trial, the jury rendered guilty verdicts on all four counts.
{¶8} At his sentencing hearing, the trial court sentenced Robinson to 36 months’
incarceration for trafficking in heroin. The trial court merged counts three and four
with count two, and sentenced him to 36 months’ incarceration for having a weapon
while under a disability, to be served consecutively to the sentence on count one.
Robinson timely appealed.
Assignments of Error
I. Failure to Communicate with Attorney before Trial
{¶9} In his first assignment of error, Robinson argues that the trial court erred by
not sufficiently investigating his claims that his appointed counsel had failed to
communicate with him prior to trial. This argument is without merit.
{¶10} The Supreme Court of Ohio has imposed an affirmative duty upon the trial
court to inquire, on the record, into a defendant’s complaints regarding the adequacy
of his appointed counsel. State v. Deal, 17 Ohio St. 2d 17, 244 N.E.2d 742 (1969),
syllabus; see State v. Keith, 79 Ohio St. 3d 514, 524, 684 N.E.2d 47 (1997). The
“limited judicial duty arises only if the allegations are sufficiently specific; vague or
general objections do not trigger the duty to investigate further.” State v. Powell, 132
Ohio St. 3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 97, quoting State v. Johnson, 112
Ohio St. 3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 68. When there are sufficiently
specific complaints about defense counsel’s representation, it is the duty of the trial
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court to perform its own investigation into the defendant’s allegations and put it into
the record. Deal at 19.
{¶11} Here, the record demonstrates that the trial court inquired numerous times
into Robinson’s desire to represent himself, and whether that desire stemmed from
the adequacy of his appointed defense counsel. Robinson was adamant about
representing himself, arguing that “nobody can represent me better than me.” After
further prodding by the trial court, Robinson claimed that his defense counsel was
incompetent because defense counsel did not visit him for 11 months, continued the
case numerous times and spoke to others regarding the case without his knowledge
or consent. Robinson claimed that he was scared and intimidated by his defense
counsel, and that his defense counsel had called him names. Defense counsel
responded, “That was after you threatened me.” The trial court followed, “[I]s it
[your defense counsel] or is it the fact that you’re just thinking you can do a better
job on your own?” Robinson responded, “It’s both.” When the trial court asked
whether Robinson would work with another attorney, Robinson responded, “No, I
will not.” The record further demonstrates that defense counsel claimed that
Robinson had refused to meet with him and discuss the case. Moreover, Robinson
stated that he had not consented to defense counsel’s representation.
{¶12} It is apparent from the record that trial court made a sufficient inquiry into
Robinson’s dissatisfaction with his defense counsel. Therefore, we overrule his first
assignment of error.
II. Sixth Amendment Right to Self-Representation and Counsel
{¶13} In his second assignment of error, Robinson asserts that the trial court
violated his right to self-representation and right to counsel under the Sixth
Amendment to the United States Constitution and Article I, Section 10, of the Ohio
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Constitution. Robinson puts forth a double-edged argument that (1) the trial court
violated his right to self-representation by appointing counsel for the pretrial stages
of his case, and that (2) the trial court violated his right to counsel by permitting him
to act pro se at trial. Although Robinson’s arguments might best be served with two
separate assignments of error, his arguments are, nonetheless, without merit.
{¶14} The Sixth and Fourteenth Amendments to the United States Constitution
guarantee a criminal defendant the right to counsel, but also provide a defendant the
constitutional right to self-representation. Faretta v. California, 422 U.S. 806, 807,
95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Johnson, 112 Ohio St. 3d 210, 2006-
Ohio-6404, 858 N.E.2d 1144, ¶ 89. A defendant may waive his right to counsel and
defend himself when he knowingly, voluntarily, and intelligently elects to do so.
Crim.R. 44(A); State v. Martin, 103 Ohio St. 3d 385, 2004-Ohio-5471, 816 N.E.2d
227, ¶ 24; State v. Gibson, 45 Ohio St. 2d 366, 345 N.E.2d 399 (1976), paragraph one
of the syllabus. Courts are to indulge in every reasonable presumption against the
waiver of the right to counsel. State v. Vordenberge, 148 Ohio App. 3d 488, 491, 774
N.E.2d 278 (1st Dist.2002).
{¶15} The trial court is to undertake a two-part inquiry when determining
whether a defendant has knowingly, intelligently, and voluntarily waived his right to
counsel. Id. at 492. The trial court must determine “(1) whether the defendant is
competent to waive the right to counsel if it has reason to doubt the defendant's
competency, and (2) whether the waiver is knowing and voluntary.” Id.; see State v.
Watson, 132 Ohio App. 3d 57, 63, 724 N.E.2d 469 (8th Dist.1998).
{¶16} Here, Robinson appears to argue that the trial court erred by appointing
counsel, against his wishes to proceed pro se, subsequent to arraignment and up to
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the point of trial; and that the trial court erred when it allowed him to waive counsel
and proceed pro se at trial.
{¶17} In situations in which a defendant asserts a right to self-representation, the
trial court must first determine whether the defendant is competent, if the trial court
has reason to doubt his competency. “The standard of competency to waive the right
to counsel is whether a defendant has ‘sufficient present ability to consult with his
lawyer with a reasonable degree of rational understanding’ and has a ‘rational as well
as factual understanding of the proceedings against him.’ ” State v. Jordan, 101 Ohio
St.3d 216, 2004-Ohio-783, 804 N.E.2d 1, ¶ 27, quoting Dusky v. United States, 362
U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960).
{¶18} Soon after appearing pro se at his arraignment, Robinson was appointed
defense counsel in accordance with Crim.R. 44(A). See Vordenberge, 148 Ohio
App.3d at 491, 774 N.E.2d 278 (waiver of counsel at arraignment is effective only for
that proceeding).
{¶19} Despite having defense counsel, Robinson made several pro se filings.
Although Robinson had the right either to appear pro se or to have counsel, he had
no corresponding right to act as counsel when counsel had been appointed for him.
See State v. Thompson, 33 Ohio St. 3d 1, 6-7, 514 N.E.2d 407 (1987); but see Martin,
103 Ohio St. 3d 385, 2004-Ohio-5471, 816 N.E.2d 227, at ¶ 28 (courts may appoint
standby counsel to assist a pro se defendant).
{¶20} Robinson argues that the appointment of counsel violated his
constitutional right to self-representation. Although Robinson filed a motion in
which he indicated his desire to represent himself, Robinson’s behavior at the
arraignment and his pro se filings caused the trial court to question his competency
and order an evaluation. See State v. Were, 94 Ohio St. 3d 173, 176, 761 N.E.2d 591
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(2002) (the numerous pro se motions cast doubt on the defendant’s competency).
Once the trial court questioned Robinson’s competency, it could not properly permit
Robinson to waive counsel without a competency hearing and a determination of
competency. See State v. Bevins, 1st Dist. Hamilton Nos. C-010316 and C-010317,
2002 Ohio App. LEXIS 1299, *5 (Mar. 22, 2002). After he was deemed competent,
Robinson filed pro se a motion entitled “Motion to Dismiss/Remove Court
Appointed Counsel, and Notice of Reestablishment of Defendants [sic] Sixth (6)
Amendment Rights.” The trial court conducted a hearing before trial, and therefore
did not prejudice Robinson’s right to self-representation. See State v. Obermiller,
___ Ohio St.3d ___, 2016-Ohio-1594, ___ N.E.3d ___, ¶ 35-36 (trial court does not
err when it does not rule immediately upon defendant’s request for self-
representation).
{¶21} Finally, Robinson contends that trial court erred when it permitted him to
represent himself at trial without determining whether his waiver of counsel was
made knowingly, intelligently, and voluntarily. This argument is without merit.
{¶22} The trial court is required to make a sufficient inquiry to determine
whether the defendant fully understands and intelligently relinquishes his right to
counsel. Johnson, 112 Ohio St. 3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, at ¶ 89,
quoting Gibson, 45 Ohio St. 2d 366, 345 N.E.2d 399, at paragraph two of the
syllabus. The record demonstrates that the trial court properly engaged in a lengthy,
candid, and thorough discussion of the nature of the charges in each indictment, the
statutory offenses included within them, the range of allowable punishments,
possible defenses, and circumstances in mitigation. See Vordenberge, 148 Ohio
App.3d at 493, 774 N.E.2d 278; Gibson at 377.
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{¶23} Robinson’s waiver of counsel was intelligent as he “[knew] what he [was]
doing and his choice [was] made with eyes open.” Iowa v. Tovar, 541 U.S. 77, 88,
124 S. Ct. 1379, 158 L. Ed. 2d 209 (2004), quoting Adams v. United States ex rel.
McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942). Robinson affirmed to
the court that he had some college education, was aware of the facts of the case, was
familiar with the court system, and comprehended that he was going to be subject to
and bound by the laws of the state of Ohio. See Tovar at 88 (intelligent waiver of
counsel 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). Additionally, the trial court explained the difficulty of
self-representation, especially given the charges and the potential consequences.
The trial court had the state discuss the circumstances of the case and the strength of
its evidence. The trial court also emphasized to Robinson that he did not have the
skill and expertise of a lawyer, and would not know the proper procedure, all of
which could hinder him at trial.
{¶24} The record demonstrates that the trial court complied with Crim.R. 44(A),
and had Robinson sign a written waiver of counsel in compliance with Crim.R. 44(C).
See Martin, 103 Ohio St. 3d 385, 2004-Ohio-5471, 816 N.E.2d 227, at paragraph two
of the syllabus; Vordenberge at 491.
{¶25} We conclude that the trial court did not violate Robinson’s constitutional
right to counsel or his right to self-representation. Therefore, we overrule his second
assignment of error.
III. Verdict Form
{¶26} In his third assignment of error, Robinson asserts that the trial court erred
in convicting him of trafficking in heroin as a third degree felony. Robinson
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contends that the verdict form did not comply with the requirements of R.C.
2945.75(A) because it did not state the degree of the offense or the existence of an
additional element to enhance the seriousness of the offense to a third degree felony.
We agree and sustain this assignment of error.
{¶27} R.C. 2945.75(A) provides:
When the presence of one or more additional elements makes an
offense one of more serious degree: * * * (2) A guilty verdict shall state
either the degree of the offense of which the offender is found guilty, or
that such additional element or elements are present. Otherwise, a
guilty verdict constitutes a finding of guilty of the least degree of the
offense charged.
{¶28} R.C. 2945.75(A) is “a clear and complete statute,” and there must be strict
compliance with the mandates of the statute. State v. McDonald, 137 Ohio St. 3d 517,
2013-Ohio-5042, 1 N.E.3d 374, ¶ 14; State v. Johnson, 1st Dist. Hamilton No. C-
120250, 2016-Ohio-781, ¶ 12. The statute requires that upon the failure to include
the appropriate language in a guilty verdict that makes the offense one of a more
serious degree, the guilty verdict is changed to constitute “a finding of guilty of the
least degree of the offense charged.” R.C. 2945.75(A)(2); State v. Sims, 1st Dist.
Hamilton Nos. C-150252 and C-150253, 2015-Ohio-4996, ¶ 19; see McDonald at ¶
14; Johnson at ¶ 14. Merely proving an additional element at trial is not sufficient.
State v. Pelfrey, 112 Ohio St. 3d 422, 2007-Ohio-256, 860 N.E.2d 735, ¶ 14; See
McDonald at ¶ 17.
{¶29} The state urges us to follow State v. Eafford, 132 Ohio St. 3d 159, 2012-
Ohio-2224, 970 N.E.2d 891, and find that the additional element in the indictment
was sufficient for compliance with the statute. Subsequent to Eafford, however, the
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Ohio Supreme Court set forth very clear guidelines in McDonald, upon which we
relied in Johnson. We find McDonald and Johnson to be controlling here.
{¶30} R.C. 2925.03(A)(1) provides that “[n]o person shall knowingly * * * sell or
offer to sell a controlled substance[.]” If the controlled substance involved is heroin,
then it is a fifth degree felony. R.C. 2925.03(C)(6)(a). However, the offense becomes
one of a more serious degree, a fourth degree felony, if the offense was committed
within “the vicinity of a school or in the vicinity of a juvenile.” R.C.
2925.03(C)(6)(b). If amount of the controlled substance equals or exceeds one gram
but is less than five grams and the offense is committed within the vicinity of a school
or juvenile, then the offense is elevated to a third degree felony. R.C.
2925.03(C)(6)(c).
{¶31} Here, the indictment alleged under count 1 that Robinson had committed
the trafficking offense within the vicinity of a school or of a juvenile, and that the
amount of the controlled substance equaled or exceeded one gram but was less than
five grams. The evidence presented at trial demonstrated that the controlled
substance was heroin, which amounted to 1.53 grams, and that the offense occurred
within the vicinity of a school and of a juvenile. The jury verdict form, however,
stated,
We the jury, in the issue joined, find the Defendant, STANLEY DION
ROBINSON, GUILTY of Trafficking in Heroin, as charged in Count 1
of the indictment. We further find that this offense was committed
within the vicinity of a school. We further find that this offense was
committed within the vicinity of a juvenile.
Subsequently, Robinson was convicted of trafficking in heroin as a third
degree felony.
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{¶32} The jury verdict form in this case did not state the degree of the offense,
nor did it state the amount of the controlled substance involved in the trafficking
offense. The only additional elements set forth in the jury verdict were that the
offense occurred within the vicinity of a school and of a juvenile. Therefore, we find
that the jury verdict form was only sufficient to convict Robinson of a fourth degree
felony.
{¶33} We therefore sustain Robinson’s third assignment of error, reverse the
judgment of the trial court convicting Robinson of trafficking in heroin as a third
degree felony, and remand the cause for the trial court to enter a judgment
convicting Robinson of trafficking in heroin as a fourth degree felony.
Conclusion
{¶34} The portion of the trial court’s judgment convicting Robinson of trafficking
in heroin as a third degree felony is reversed, and this cause is remanded for the trial
court to enter a judgment convicting Robinson of trafficking in heroin as a fourth
degree felony. The trial court’s judgment is affirmed in all other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
DEWINE, P.J., and MOCK, J., concur.
Please note:
This court has recorded its own entry this date.
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