DocketNumber: No. 22455.
Citation Numbers: 917 N.E.2d 817, 183 Ohio App. 3d 488, 2009 Ohio 1944
Judges: GRADY, Judge.
Filed Date: 4/17/2009
Status: Precedential
Modified Date: 1/13/2023
{¶ 1} Defendant, Raymond Engle, was indicted for the offenses of burglary, R.C.
{¶ 2} Counsel appointed to represent defendant moved to suppress C.M.'s identification of defendant. Defendant thereafter moved to represent himself. Following a hearing, the court granted defendant's motion to represent himself. Defendant represented himself at the hearing on the motion to suppress, which the court denied. Defendant also represented himself at his trial.
{¶ 3} The jury returned verdicts finding defendant guilty of the charges on which he was indicted. The court imposed consecutive prison terms of eight years for burglary and eighteen months for gross sexual imposition. Defendant appeals.
{¶ 5} Crim. R. 44(C) provides:
{¶ 6} "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."
{¶ 7} In State v. Dyer (1996),
{¶ 8} "Courts are to indulge every reasonable presumption against the waiver of a fundamental constitutional right including the right to be represented by counsel. In reEast (1995),
{¶ 9} In Von Moltke v. Gillies (1948),
{¶ 10} "We have said: `The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.' [Johnsonv. Zerbst (1938),
{¶ 11} A hearing on defendant's motion to represent himself was held on May 4, 2007. A video transcript of the hearing was filed. A typed copy of that record is attached to the state's brief. App. R. 9(A). The court's entire colloquy with defendant regarding his motion, beginning with the court's comment, states:
{¶ 12} "The Court is cognizant of Faretta v. California[ (1948),
{¶ 13} "Mr. Engle, you filed your motion to represent yourself pro se and not utilize the services of Mr. Goraleski. Have you discussed this with Mr. Goraleski?
{¶ 14} "THE DEFENDANT: Yes, I have.
{¶ 15} "THE COURT: And Mr. Goraleski is a senior lawyer in the Public Defender's Office, a very experienced lawyer.
{¶ 16} "Knowing that, do you wish to proceed on your motion to represent yourself?
{¶ 17} "THE DEFENDANT: True.
{¶ 18} "THE COURT: Mr. Engle, how old are you? *Page 491
{¶ 19} "THE DEFENDANT: I'll be 53 this year, sir.
{¶ 20} "THE COURT: How much schooling have you had?
{¶ 21} "THE DEFENDANT: I've got about five years of college right now. So I've got — I've probably got 235 credit hours.
{¶ 22} "THE COURT: Okay.
{¶ 23} "THE DEFENDANT: Yeah.
{¶ 24} "THE COURT: And have you ever represented yourself in any other proceeding other than this —
{¶ 25} "THE DEFENDANT: Yes, I have.
{¶ 26} "THE COURT: And what is that? When did you do that? What kind of case?
{¶ 27} "THE DEFENDANT: It was, I'm going to say in December of `93.
{¶ 28} "THE COURT: Here in Montgomery County?
{¶ 29} "THE DEFENDANT: Greene County.
{¶ 30} "THE COURT: In Greene County? Was it a criminal case?
{¶ 31} "THE DEFENDANT: Correct, it was.
{¶ 32} "THE COURT: All right. And did the Court permit you to represent yourself in that case?
{¶ 33} "THE DEFENDANT: Yes, sir, they did.
{¶ 34} "THE COURT: Did they? All right.
{¶ 35} "Well, you've been through, but — well, did that case go to trial?
{¶ 36} "THE DEFENDANT: Yes, it did, sir.
{¶ 37} "THE COURT: All right. And did you have stand-by counsel in that case?
{¶ 38} "THE DEFENDANT: I did.
{¶ 39} "THE COURT: All right. The — all right — do you feel that you have some knowledge of the Rules of Evidence that apply in criminal trials?
{¶ 40} "THE DEFENDANT: I'd say really I probably got about 40,000 hours of studying criminal law.
{¶ 41} "THE COURT: Okay.
{¶ 42} "THE DEFENDANT: Oh, yeah.
{¶ 43} "THE COURT: So you feel you know the rules, the criminal rules, that apply in a case as well as the Rules of Evidence? *Page 492
{¶ 44} "THE DEFENDANT: True.
{¶ 45} "THE COURT: Okay. So in other words, my question is to decide whether you would be able to make objections and carry on the case as if you were represented by a lawyer.
{¶ 46} "THE DEFENDANT: True, I could.
{¶ 47} "THE COURT: You say you can?
{¶ 48} "THE DEFENDANT: Yes.
{¶ 49} "THE COURT: All right.
{¶ 50} "All right. Well, I want to make sure also that you understand the role of the Court — that I can't help you in your defense. But if you undertake to represent yourself in the case, the Court's obligation is to make rulings and to conduct the trial in a fair and impartial way. And I can't help one side or the other in the presentation of their case. Do you understand?
{¶ 51} "THE DEFENDANT: Yes, sir, I do.
{¶ 52} "THE COURT: Okay.
{¶ 53} "The — given your experience then and the fact that you've been through this once before and it's your desire to do it in this case, I'm going to then permit you to do it based on these answers that you've given here today.
{¶ 54} "THE DEFENDANT: Thank you.
{¶ 55} "THE COURT: You're welcome
{¶ 56} "And — but I am going to have Mr. Goraleski sit with you as court counsel available to you should you have any questions or questions arise as a resource for you.
{¶ 57} "THE DEFENDANT: Thank you.
{¶ 58} "THE COURT: You're welcome."
{¶ 59} Defendant signed a written waiver of his right, which was filed on May 16, 2007. The written waiver states:
{¶ 60} "Now comes the Defendant, Raymond Engle, pursuant to Ohio Criminal Rule 44(C), and after having been fully advised of my right to have assigned counsel for the above captioned case, and after been fully advised by the Court of the nature of the charges against me, the statutory offenses within, the range of allowable punishments for each offense, possible defenses and mitigation do hereby make a knowing, voluntary and intelligent waiver of my right to counsel.
{¶ 61} "I understand that I will represent myself at all future stages of the criminal prosecution. This would include any motions, hearings, and/or trials. *Page 493
No one has forced, threatened or promised me anything in order for me to waive my right to counsel.
"_____/S_____/ Raymond Engle — Defendant."
{¶ 62} The colloquy the court conducted with defendant fully probed his capacity to represent himself based on his education, age, and experience. However, the record is silent with respect to the Von Moltke requirement that a defendant's waiver of his right to counsel also must "be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, [and] possible defenses to the charges and circumstances in mitigation thereof."
{¶ 63} The state argues that the written waiver defendant signed is sufficient for that purpose. We do not agree. The several acknowledgments in that writing that defendant made are belied by the transcript of the hearing the court conducted. Furthermore, because Crim. R. 44 requires waivers to be made in open court and Crim. R. 22 requires them to be recorded, the transcript of the hearing necessarily governs.
{¶ 64} The first assignment of error is sustained.
{¶ 68} The errors assigned pertain to the hearing on defendant's motion to suppress and at his trial, during which defendant represented himself. Our ruling sustaining the first assignment of error renders these further assignments of error moot, and we therefore decline to decide them. App. R. 12(A)(1)(c).
{¶ 69} The judgment of the trial court is reversed, and this matter is remanded to the trial court for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
BROGAN and FAIN, JJ., concur.