State v. Clemons

[Cite as State v. Clemons, 2012-Ohio-2127.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
DEFIANCE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 4-11-23
v.
ROMELL CLEMONS, OPINION
DEFENDANT-APPELLANT.
Appeal from Defiance County Common Pleas Court
Trial Court No. 04CR08879
Judgment Reversed and Cause Remanded
Date of Decision: May 14, 2012
APPEARANCES:
Stephen P. Hardwick for Appellant
Morris J. Murphy and Russell R. Herman for Appellee
Case No. 4-11-23
WILLAMOWSKI, J.
{¶1} Defendant-appellant Romell Clemons (“Clemons”) brings this appeal
from the judgment of the Court of Common Pleas of Defiance County finding him
to be a sexual predator. For the reasons set forth below, the judgment is reversed.
{¶2} On September 3, 2004, Clemons entered no contest pleas to four
counts of unlawful sexual conduct with a minor between the ages of 13 and
fifteen, two counts of sexual battery, and one count of having a weapon under
disability. The trial court sentenced Clemons to a cumulative term of nine years in
prison on September 14, 2004. On August 30, 2011, a hearing was held on
Clemons’ motion for judicial release and a notification of post release control. At
that time, the trial court also held a sex offender classification hearing. Clemons
was not represented by counsel at the combined hearing. At the conclusion of the
hearing, the trial court advised Clemons that he was subject to a mandatory period
of five years post release control, found him to be a sexual predator and granted
his motion for judicial release. Clemons appeals from the trial court’s
determination that he is a sexual predator and raises the following assignments of
error.
First Assignment of Error
The trial court erred by holding a resentencing hearing and a
sexual predator hearing without either appointing counsel or
obtaining a knowing, intelligent, and voluntary waiver of
counsel.
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Case No. 4-11-23
Second Assignment of Error
The trial court erred by making a sexual predator determination
without providing advance notice to [Clemons].
Third Assignment of Error
The trial court erred by classifying [Clemons] as a sexual
predator without any statutory authority.
{¶3} In the first assignment of error, Clemons alleges that the trial court
erred by holding a resentencing hearing and a sexual offender classification
hearing without counsel or a valid waiver of counsel. Post-release control is a part
of the offender’s sentence. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238.
Where a defendant charged with a serious offense is unable to
obtain counsel, counsel shall be assigned to 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.
Crim.R. 44(A). The sentence is a part of the proceedings to which counsel is
required to be assigned by the rule. When a trial court fails to comply with the
requirements of the rule and assign counsel for a resentencing hearing without
obtaining a valid waiver of counsel, the trial court has erred. State v. Webb, 177
Ohio App.3d 289, 2008-Ohio-3719 (2d Dist.).
Waiver of counsel shall be in open court and the advice and
waiver shall be recorded as provided in Rule 22. In addition, in
serious offense cases the waiver shall be in writing.
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Case No. 4-11-23
Crim.R. 44(C).
“[T]o 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 at paragraph two of the syllabus. In order for the
defendant to “ ‘competently and intelligently * * * choose self-
representation, he should be made 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.” ’ ” Petaway at ¶ 9, quoting **331 Faretta at
835, 95 S.Ct. 2525, 45 L.Ed.2d 562, quoting Adams v. United
States ex rel. McCann (1942), 317 U.S. 269, 279, 63 S.Ct. 236, 87
L.Ed. 268.
State v. Thompson, 180 Ohio App.3d 714, 2009-Ohio-185, ¶ 7 (3d Dist.).
{¶4} A review of the record indicates that the trial court recognized that
Clemons lacked counsel at the beginning of the hearing. Aug. 30, 2011 Hearing,
Tr. 2. The trial court then immediately advised Clemons of his post-release
control conditions. Tr. 2-3. At no time prior to this did the trial court ask
Clemons if he would like an attorney. The only time the trial court addressed the
lack of counsel was before beginning the sexual offender classification hearing.
The Court: Since your crime was so long ago, you’re under that
old, old classification scheme and – I realize you filed your
motion for judicial release without benefit of counsel. You
would have the right to a lawyer in connection with that
classification determination.
The Defendant: Okay.
The Court: Do you want a lawyer in connection with that?
The Defendant: No.
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Case No. 4-11-23
Tr. 17-18. The trial court then proceeded to make the classification. No
additional discussion concerning the waiver occurred. No written waiver of
counsel, as required by Criminal Rule 44(C), appears in the record. The above
discussion is not a valid waiver of counsel. Without a valid waiver of counsel, the
trial court erred in holding this hearing when Clemons lacked counsel. The first
assignment of error is sustained.
{¶5} Having found that the trial court erred in not obtaining a valid waiver
of counsel before holding the hearing, the remaining assignments of error are
rendered moot as a new hearing will be held. For this reason, we need not address
them.
{¶6} Having found error prejudicial to Clemons, the judgment of the Court
of Common Pleas of Defiance County is reversed and the matter is remanded for
further proceedings.
Judgment Reversed and
Cause Remanded
SHAW, P.J. and ROGERS, J., concur.
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