DocketNumber: C.A. Nos. 03CA0003-M, 03CA0004-M
Judges: SLABY, Presiding Judge.
Filed Date: 10/22/2003
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 2} On March 22, 2002, Defendant was charged with threatening domestic violence (R.C.
{¶ 3} Both cases were set for sentencing on December 18, 2002. The day prior to sentencing, Defendant's counsel withdrew and Defendant filed a pro se motion to withdraw his pleas in both cases. The motion, however, lacked the required certificate of service, which was not filed until after the sentencing. Defendant appeared at the sentencing without counsel. The judge refrained from ruling on the pro se motion to withdraw the pleas because it had not been properly filed prior to sentencing and sentenced Defendant to $600 in fines, 360 days in jail (with 180 suspended), and 5 years of probation. Defendant timely appeals raising three assignments of error.
"The trial court erred by sentencing [Defendant] when [Defendant] did not have counsel and had not waived counsel."
{¶ 4} In his first assignment of error, Defendant argues that it was error for the trial court to sentence him without counsel present. Defendant asserts that there is no evidence in the record indicating that he voluntarily, intelligently, and knowingly waived his right to counsel at sentencing. We agree.
{¶ 5} The
{¶ 6} Defendant in this case did not waive his right to counsel on the record. The State did not contest this as it failed to file a brief. The transcript from the sentencing proceeding includes only the following statement by the court regarding counsel:
"[Defendant] was represented throughout this matter by [counsel]. [Counsel] has asked for leave to withdraw and was granted leave to withdraw based upon his representation that [Defendant] no longer desired to have him represent him in this matter and had discharged him in this case."
{¶ 7} The trial court did not advise Defendant of his right to counsel at sentencing, or make any effort to determine if Defendant had intelligently, knowingly, and voluntarily waived counsel. No written waiver of this right was signed by Defendant and presented to the court. Given that there is no evidence that Defendant voluntarily waived his right to counsel at sentencing, we reverse, set aside the sentence, and remand for re-sentencing.
"The trial court erred when it refused to consider [Defendant's] pro se motion to withdraw pleas prior to sentencing."
"The trial court abused its discretion in overruling [Defendant's] motion to withdraw pleas under either standard."
{¶ 8} Given our determination as to Defendant's first assignment of error, we refrain from addressing Defendant's additional assignments of error.
{¶ 9} Defendant's first assignment of error is upheld. We refrain from deciding Defendant's second and third assignments of error. The judgment of the Medina Municipal Court is set aside. This cause is reversed and remanded.
Judgment reversed and cause remanded.