State v. Gainer

[Cite as State v. Gainer, 2023-Ohio-1760.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 22AP-587
(M.C. No. 2022CRB-4206)
v. :
(REGULAR CALENDAR)
Choice P. Gainer, :
Defendant-Appellant. :
D E C I S I O N
Rendered on May 25, 2023
On brief: Zachary M. Klein, City Attorney, Melanie R.
Tobias-Hunter, Orly Ahroni, and Dave Pelletier, for appellee.
On brief: Yeura R. Venters, Public Defender, and George M.
Schumann, for appellant.
APPEAL from the Franklin County Municipal Court
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Choice P. Gainer, appeals from an entry of the Franklin
County Municipal Court revoking his community control and imposing his previously
suspended jail sentence. For the following reasons, we reverse.
I. Facts and Procedural History
{¶ 2} By complaint filed March 28, 2022, plaintiff-appellee, State of Ohio, charged
Gainer with one count of domestic violence in violation of R.C. 2919.25(A), a first-degree
misdemeanor; and one count of assault in violation of R.C. 2903.13(A), a first-degree
misdemeanor. Gainer initially entered a plea of not guilty. Subsequently, Gainer, while
represented by a public defender, entered a guilty plea to one count of assault. The trial
No. 22AP-587 2
court sentenced Gainer to 180 days imprisonment but suspended the sentence and placed
Gainer on community control.
{¶ 3} On July 26, 2022, the state filed a statement of violations of community
control and an addendum to the statement of violations indicating Gainer had violated the
terms of his community control. The trial court scheduled a hearing on the community
control violations for September 8, 2022.
{¶ 4} At the revocation hearing, Gainer appeared but his public defender did not.
The trial court did not ask Gainer whether he wanted his attorney present at the revocation
hearing, and Gainer did not say anything about his attorney not being present. The trial
court then asked Gainer whether he had violated his probation, to which Gainer responded
that he had. After giving Gainer the opportunity to make a statement and asking Gainer
follow-up questions about his statement, the trial court revoked Gainer’s community
control and imposed the previously suspended jail sentence. The trial court journalized the
revocation of Gainer’s community control and imposition of the previously suspended jail
sentence in a September 8, 2022 entry. Gainer timely appeals.
II. Assignment of Error
{¶ 5} Gainer assigns the following sole assignment of error for our review:
The defendant-appellant’s right to the assistance of counsel
under the Sixth Amendment to the United States Constitution
and Section 10, Article I of the Ohio Constitution was violated
at a community control revocation hearing in which the trial
court imposed the balance of the defendant-appellant’s jail
sentence without first fully advising the defendant-appellant of
his right to counsel, and without first determining that the
defendant-appellant had knowingly, intelligently, and
voluntarily waived his right to counsel.
III. Discussion
{¶ 6} In his sole assignment of error, Gainer argues the trial court deprived him of
his right to counsel when it imposed the balance of his jail sentence at a community control
revocation hearing.
{¶ 7} The Sixth Amendment to the United States Constitution, and Article I,
Section 10, of the Ohio Constitution provide a criminal defendant with the right to the
assistance of counsel. State v. White, 10th Dist. No. 21AP-337, 2022-Ohio-665, ¶ 19, citing
No. 22AP-587 3
State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 22. The right to counsel applies in
misdemeanor cases, including cases involving petty offenses, that could result in a period
of imprisonment. Id., citing State v. Downie, 183 Ohio App.3d 665, 2009-Ohio-4643, ¶ 17
(7th Dist.); Argersinger v. Hamlin, 407 U.S. 25 (1972). Further, the right to counsel
extends to cases involving a suspended sentence capable of subsequent revocation that
would result in incarceration. White at ¶ 19, citing State v. Davis, 2d Dist. No. 23248, 2009-
Ohio-4786, ¶ 32, citing Alabama v. Shelton, 535 U.S. 654 (2002).
{¶ 8} Pursuant to Crim.R. 2(D), a “petty offense” is defined as “a misdemeanor
other than a serious offense.” Crim.R. 2(C) defines a “serious offense” as “any felony, and
any misdemeanor for which the penalty prescribed by law includes confinement for more
than six months.” Here, Gainer was convicted of assault, a first-degree misdemeanor
punishable by a maximum of 180 days confinement. R.C. 2903.13(A); 2929.24(A)(1).
Thus, Gainer’s offense was a petty offense pursuant to Crim.R. 2.
{¶ 9} Crim.R. 32.3 governs the revocation of probation and 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
prescribed in Crim.R. 44(C).
{¶ 10} Additionally, a criminal defendant has an independent constitutional right of
self-representation in criminal proceedings. White at ¶ 24, citing Martin at ¶ 23; Faretta
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v. California, 422 U.S. 806, 819 (1975). A defendant may defend himself or herself without
the assistance of counsel where the defendant voluntarily, intelligently, and knowingly
elects to do so. White at ¶ 24, citing Martin at ¶ 24, citing State v. Gibson, 45 Ohio St.2d
366 (1976).
{¶ 11} A court must indulge every reasonable presumption against the waiver of
fundamental constitutional rights, including the right to be represented by counsel. White
at ¶ 25, citing State v. Dyer, 117 Ohio App.3d 92, 95 (2d Dist.1996). Courts cannot infer a
criminal defendant’s waiver of counsel from the defendant’s silence. Id., citing State v.
Wellman, 37 Ohio St.2d 162 (1974), paragraph two of the syllabus. Instead, the waiver must
affirmatively appear in the record. Id., citing Wellman at paragraph two of the syllabus.
Moreover, it is the state’s burden to overcome the presumption against a valid waiver. Id.,citing Wellman at ¶ 25. To determine whether a defendant voluntarily, intelligently, and
knowingly waived the right to counsel, an appellate court conducts an independent review
based on the totality of the circumstances. Id., citing 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.
{¶ 12} Here, Gainer appeared at the revocation hearing but his public defender did
not. The trial court did not acknowledge that Gainer was not accompanied by counsel and
did not ask Gainer any questions related to whether Gainer intended to waive his right to
counsel. As noted above, the trial court could not infer a valid waiver from Gainer’s silence,
and the trial court did not engage in the appropriate colloquy with Gainer regarding his
constitutional right to counsel and whether he intended to waive that right.
{¶ 13} The state concedes error and agrees the trial court denied Gainer his
constitutional right to counsel. As this court has held, “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.” White at ¶ 27. The record here does not demonstrate that Gainer knowingly,
intelligently, and voluntarily waived his right to counsel before the trial court revoked his
community control and imposed the previously suspended jail sentence. Thus, the trial
court denied Gainer his constitutional right to counsel. Accordingly, we sustain Gainer’s
sole assignment of error.
No. 22AP-587 5
IV. Disposition
{¶ 14} Based on the foregoing reasons, the trial court erred when it denied Gainer
his right to counsel at his community control revocation hearing. Having sustained
Gainer’s sole assignment of error, we reverse the judgment of the Franklin County
Municipal Court revoking Gainer’s community control, and remand this matter to that
court for further proceedings consistent with law and this decision.
Judgment reversed and cause remanded.
EDELSTEIN and LELAND, JJ., concur.