State v. Dinka , 2013 Ohio 4646 ( 2013 )

[Cite as State v. Dinka, 2013-Ohio-4646.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
CASE NO. CA2013-03-021
Plaintiff-Appellee, :
OPINION
: 10/21/2013
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:
JOHN C. DINKA, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT
Case No. 2013CRB00032
David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee
Marshall G. Lachman, 75 North Pioneer Boulevard, Springboro, Ohio 45066, for defendant-
appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, John C. Dinka, appeals his conviction in the Warren
County Court for domestic violence. For the reasons set forth below, we reverse the
judgment of the trial court and remand the matter for further proceedings consistent with this
Opinion.
{¶ 2} On January 14, 2013, Dinka was arrested and charged with one count of
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domestic violence in violation of R.C. 2919.25(C), a misdemeanor of the fourth degree. The
charge stemmed from a January 9, 2013 incident between Dinka and his stepdaughter,
Shelby Howard, where Dinka threatened Howard and her boyfriend with a shotgun.
{¶ 3} The trial court's file contains a document entitled "Docket/Judgment Entry"
dated January 14, 2013 and journalized on January 15, 2013 indicating Dinka entered a not
guilty plea to fourth-degree misdemeanor domestic violence. This "Docket/Judgment Entry"
does not reflect the nature of the hearing or appearances by Dinka, an attorney on Dinka's
behalf or any other person. In fact, the record does not disclose that Dinka was ever
arraigned in accordance with Crim.R. 10.
{¶ 4} On January 17, 2013, Dinka appeared for a preliminary hearing represented by
an attorney. The record is unclear whether Dinka's attorney was appointed by the court or
retained by Dinka. Although no such charge appears of record, the matter was apparently
scheduled for a preliminary hearing upon a felony charge of having weapons while under
disability in violation of R.C. 2923.13 based upon Dinka's possession of the shotgun and a
belief that Dinka was previously convicted of a felony assault charge. However, the
prosecutor represented that Dinka's prior conviction was not a felony and moved to dismiss
the weapons while under disability charge. Subsequent discussion between the trial court,
Dinka, and the prosecutor suggests the trial court dismissed the weapons while under
disability charge even though the record is devoid of a specific ruling on the matter. As the
preliminary hearing continued, the trial court discussed Dinka's lengthy criminal record and
set bond. The prosecutor moved to amend the domestic violence charge from a fourth-
degree misdemeanor to a first-degree misdemeanor. The trial court did not rule upon the
motion to amend. The trial court did not ask whether Dinka was indigent, did not inform him
of his right to an attorney, and did not inquire into whether he wanted representation. A
pretrial hearing was scheduled for January 24, 2013.
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{¶ 5} On January 24, 2013, Dinka appeared before the trial court for a pretrial
hearing with a public defender. No affidavit of indigency or appearance of counsel was filed
at this time. Dinka did not wish to waive his right to a speedy trial and requested his case be
set for trial as soon as possible. As Dinka was unable to post bond, a trial was scheduled for
February 12, 2013. In the interim, the record continued to reflect that Dinka was charged
with a fourth-degree misdemeanor until the prosecutor moved on January 29, 2013 to amend
the charge to second-degree misdemeanor domestic violence. The trial court granted this
motion to amend on February 5, 2013 by marginal notation upon the prosecutor's motion.
Nevertheless, when Dinka appeared for trial on February 12, 2013, the prosecutor informed
the court of its intention to proceed on the fourth-degree misdemeanor domestic violence
charge.
{¶ 6} On February 12, 2013, Dinka appeared for trial with his public defender and the
following exchange took place between the trial court and Dinka:
COURT: All right, we set it for a trial today, probably with a
public defender, not knowing whether or not you were going to
be able to retain your own attorney. Have you made
arrangements for the public defender to fill out the paperwork to
see if you qualify?
DINKA: Yeah, but I haven't filled out the paperwork. Under the
circumstances I think I'm going to try to obtain an attorney.
COURT: Today's the trial.
DINKA: Well, I've tried to contact the attorney, haven't spoken to
[my public defender] about the trial at all and we're not prepared.
I've got stuff I need subpoenaed, people I need subpoenaed.
COURT: Do you have the financial affidavit filled out?
DINKA: No, I don't, it's sitting in the chair there.
COURT: All right, so do you want the public defender to
represent you or not? Today's the trial Mr. Dinka.
DINKA: I'd like to get a continuance.
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***
COURT: But you want a continuance so you can hire an
attorney?
DINKA: Correct.
COURT: But you haven't hired one?
DINKA: I'm trying to.
***
COURT: Mr. Dinka, this is it, this is the trial, so it's going to be
this morning with you representing yourself or you can have the
public defender, assuming that you do qualify. * * * Did you
know today was the trial?
DINKA: Yeah, but I tried * * * to contact the attorney so I can let
her know I need a subpoena and I haven't received anything.
And when I called I was told that the public defender don't (sic)
talk to you until the day of trial, and how can you get a case
together if you can't speak to your attorney?
***
I'm just not happy with the job my public defender was doing. I
tried to speak to her and they (sic) could speak to you before the
trial and find out what's going on.
COURT: All right. So [public defender], any inclination that you
had or might have had on representing Mr. Dinka, I'm being told
he doesn't want public defender service so that will be granted.
So your name will be removed from the docket. I'm going to
reset this for two weeks from today, that's the trial date. It will not
be continued. You file a jury demand, that's different, obviously it
gets reset but the trial is in two weeks. You find an attorney to
represent you in two weeks, that's available in two weeks, you
understand that?
DINKA: Yeah.
{¶ 7} On February 26, 2013, Dinka appeared for trial without counsel. Dinka
explained he had contacted numerous attorneys but was unable to afford one. The following
conversation then occurred between the trial court and Dinka:
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COURT: So are you ready to proceed without an attorney then?
DINKA: Not really. I have PTSD, which I'm not able to, you
know, under stressful situations my mind just kind of quits.1
COURT: All right.
DINKA: So I'm not really able to represent myself.
COURT: Well, today we're set for the trial and you made no
arrangements, you did not want the public defender to represent
you so she was discharged from her duty. I gave you a two
week continuance, plenty enough time to secure counsel. The
fact that you're here without counsel the court's going to consider
that to be a waiver of counsel so we're going to proceed this
afternoon.
The trial court then proceeded with Dinka's bench trial with Dinka representing himself. At
multiple times during the trial, Dinka stated he was having difficulty representing himself, as
his brain was "quitting" due to his "PTSD." At the conclusion of the evidence, the trial court
found Dinka guilty of fourth-degree misdemeanor domestic violence. Dinka was sentenced
to a 23-day jail term with credit for time served and one year of community control
supervision. Dinka was also ordered to undergo drug, alcohol, and mental health
assessments, pay a fine, and forfeit the shotgun.
{¶ 8} From his conviction, Dinka appeals, raising two assignments of error:
{¶ 9} Assignment of Error No. 1:
{¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF DINKA, AND DENIED
DINKA HIS RIGHT TO COUNSEL, IN VIOLATION OF THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE
[I] OF THE OHIO CONSTITUTION.
{¶ 11} Assignment of Error No. 2:
{¶ 12} THE TRIAL COURT'S VERDICT OF GUILTY ON THE CHARGE OF
1. We assume that Dinka is referring to post traumatic stress disorder.
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DOMESTIC VIOLENCE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 13} In his first assignment of error, Dinka contends the trial court erred by
discharging Dinka's public defender and requiring him to proceed pro se in violation of his
constitutional rights. Specifically, Dinka asserts his failure to obtain counsel after a two-week
continuance of his trial date was not a knowing, intelligent, and voluntary waiver of his right to
counsel.
{¶ 14} The Sixth Amendment to the United States Constitution states, in part: "In all
criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of
Counsel for his defense." "'[The assistance of counsel] is one of the safeguards of the Sixth
Amendment deemed necessary to insure fundamental human rights of life and liberty.'"
State v. Fields, 12th Dist. Warren Nos. CA97-09-100, CA97-09-101, and CA97-11-118, 1998
WL 372367, *2 (July 6, 1998), quoting Gideon v. Wainwright, 372 U.S. 335, 343, 83 S.Ct.
792, 796 (1963). "The Sixth and Fourteenth Amendments to the United States Constitution
guarantee a defendant in a state criminal proceeding the constitutional right of self-
representation when the defendant voluntarily, knowingly, and intelligently so elects." State
v. Doyle, 12th Dist. Brown No. CA2005-11-020, 2006-Ohio-5373, ¶ 8, citing State v. Gibson,
45 Ohio St.2d 366 (1976), paragraph one of the syllabus, and Faretta v. California, 422 U.S.
806, 95 S.Ct. 2525 (1975). "'Courts are to indulge every reasonable presumption against the
waiver of a fundamental constitutional right including the right to be represented by counsel.'"
Fields at *3, quoting State v. Dyer, 117 Ohio App.3d 92, 96 (2d Dist.1996).
{¶ 15} "[T]o establish an effective waiver of right to counsel, the trial court must make
sufficient inquiry to determine whether [the] defendant fully understands and intelligently
relinquishes that right." Gibson at paragraph two of the syllabus; State v. Overholt, 77 Ohio
App.3d 111, 116-17 (3d Dist.1991). In order for the defendant to "competently and
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intelligently choose self-representation, he must 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." (Internal quotations omitted.) State v.
Petaway, 3d Dist. Logan No. 8-05-11, 2006-Ohio-2941, ¶ 8, quoting Faretta at 835.
{¶ 16} Generally, Ohio courts look to see whether, under the totality of the
circumstances, the defendant's waiver of his right to counsel was voluntarily, knowingly, and
intelligently given. State v. Thompson, 180 Ohio App.3d 714, 2009-Ohio-185, ¶ 8 (3d Dist.).
"To discharge this duty in light of the strong presumption against waiver of the constitutional
right to counsel, a judge must investigate as long and as thoroughly as the circumstances of
the case before him demand." Gibson at 377. For a waiver of counsel to be valid, such
waiver must be made "with an apprehension of the nature of the charges, the statutory
offenses included within them, the range of allowable punishments thereunder, possible
defenses to the charges and circumstances in mitigation thereof, and all other facts essential
to a broad understanding of the whole matter." Fields at *2-3, citing Overholt at 117 and Von
Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 323 (1948).
{¶ 17} Pursuant to Crim.R. 44(B), when a defendant has been charged with a petty
offense, as in the case at hand, the trial court may assign counsel to represent him.
However, "when a defendant charged with a petty offense is unable to obtain counsel, no
sentence of confinement may be imposed upon him, unless after being fully advised by the
court, he knowingly, intelligently, and voluntarily waives assignment of counsel." Crim.R.
44(B); Fields at *2 (holding that, absent a knowing, intelligent, and voluntary waiver, no
person may be imprisoned for any offense, whether classified as petty, misdemeanor, or
felony, unless he was represented by counsel at his trial).
{¶ 18} Waiver of counsel shall be made in open court, and the advice of the trial court
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and waiver of the defendant shall be recorded as provided in Crim.R. 22.2 Crim.R. 44(C).
"The requirements of Crim.R. 44 and 22 are mandatory, and failure to comply with these
procedures constitutes error." State v. Constable, 12th Dist. Clermont No. CA2003-12-107,
2005-Ohio-1239, ¶ 31, citing State v. Krivinsky, 12th Dist. Warren No. CA97-09-098, 1998
WL 314384, *2 (July 6, 1998).
{¶ 19} In the present case, our review of the record reveals Dinka was not fully
advised by the trial court of the nature of the charges against him, the statutory offenses
included with it, the range of allowable punishments thereunder, the possible defenses to the
charge, the circumstances in mitigation of the charge, and all other factors essential to a
broad understanding of the whole matter. The record fails to demonstrate Dinka was
properly arraigned and provided the advisements required by Crim.R. 10. On numerous
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occasions, Dinka stated he had never been informed of "what he was being charged with."
The degree of the offense with which Dinka was charged was in flux (i.e., felony offense,
first-degree misdemeanor, second-degree misdemeanor, or fourth-degree misdemeanor)
2. Crim.R. 22 provides, "In petty offenses all waivers of counsel required by Rule 44(B) shall be recoded."
3. {a} For example, on February 12, 2013, Dinka was told for the first time what charge the trial scheduled
for that day would proceed under:
{b} DINKA: I'm not even sure exactly what I'm being, what I'm being charged
with, I don't know. * * * I mean, first the charge was aggravated menacing
then it was an M-4 domestic violence and then it was an M-1, then it was
back to an M-4 again and then back to an M-1. Now I'm told it was an M-2.
I'm not even sure what I'm being charged with.
{c} STATE: Your Honor, we're going forward on the M-4.
{d} DINKA: So now it's an M-4 sir?
{e} STATE: That's correct.
{f} COURT: That was the original charge.
{g} DINKA: Yeah. Well, the public defender just told me five minutes ago it
was an M-2.
{h} COURT: That's because I was going to grant that motion.
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throughout the proceedings and, consequently, so were the allowable punishments. The trial
court never determined whether Dinka was entitled to court-appointed counsel, instead
stating at Dinka's first trial date that the trial would "probably" proceed with a public defender
if Dinka "qualified." Furthermore, Dinka never waived his right to counsel in open court as
required by Crim.R. 22 and 44. Rather, Dinka repeatedly stated he was unable to represent
himself due to "PTSD."
{¶ 20} Based upon our thorough review of the record, we find the trial court committed
prejudicial error by imposing a term of confinement upon Dinka when he was not represented
by counsel and where he did not knowingly, intelligently, and voluntarily waive the
assignment of counsel. We further find, due to the confusion permeating this entire
proceeding, Dinka's conduct did not constitute an implied waiver of his right to counsel. In so
holding, we find this case analogous to our decisions in State v. Fields, 1998 WL 372367,
and State v. Constable, 2005-Ohio-1239.
{¶ 21} In Fields, the defendant was found guilty of domestic violence and driving under
the influence of alcohol after a bench trial wherein he was required to represent himself.
Fields at *1. We found: (1) a valid waiver of counsel by the defendant did not exist as
required by Crim.R. 44; (2) the defendant had stated numerous times he did not want to
proceed to trial without representation; and (3) there was nothing in the record to show the
trial court advised the defendant of the repercussions of self-representation. Id. at *2-3. We
concluded "that the record does not adequately support the conclusion that [the defendant]
validly waived his right to counsel, and therefore 'no sentence of confinement may be
imposed upon him * * *.'" Id. at *3, citing Crim.R. 44(B).
{¶ 22} In Constable, the defendant was found guilty of menacing, a fourth-degree
misdemeanor, after a jury trial wherein he was required to represent himself. Constable at ¶
1. At arraignment, the defendant was appointed an attorney due to his indigent status. Id. at
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¶ 2. Four months after arraignment, the defendant appeared for trial and informed the court
he wished to "fire" his court-appointed attorney and have the court appoint a new attorney.
Id. at ¶ 4. After listening to the defendant's reasons for wanting his attorney fired, the court
found the attorney competent and determined it would not appoint a new attorney for the
defendant. Id. "The court then gave [the defendant] three options: (1) proceed with his
appointed attorney; (2) represent himself; or (3) ask for a continuance so that he could
attempt to hire a new attorney." Id. Concluding that he did not want to represent himself, nor
have his court-appointed attorney represent him, the defendant requested a continuance in
order to retain counsel. Id. The trial court then allowed the appointed attorney to withdraw
from the case and granted a two-month continuance. Id.
{¶ 23} After the continuance, the defendant appeared before the trial court without an
attorney, explaining he had attempted to retain counsel but was unable to afford
representation. Id. at ¶ 5. The court informed the defendant that, because he had fired his
court-appointed attorney and had not secured new representation, the defendant was "on his
own." Id. The case proceeded to trial by jury with the defendant representing himself. Id.
He was found guilty of menacing and appealed his conviction, arguing that he was deprived
of his right to counsel under the Sixth Amendment and that he did not voluntarily waive this
right. Id. at ¶ 6-12.
{¶ 24} We found the defendant had not waived his right to counsel and, therefore, the
trial court erred in requiring the defendant to proceed to trial without representation. Id. at ¶
15. Specifically, we determined that, while the defendant was not entitled to an attorney of
his choosing, he was nevertheless entitled to representation and the trial court "was required
to ensure that, absent a valid waiver of counsel, [the defendant] had an attorney to represent
him." (Emphasis sic.) Id. at ¶ 15, 29, citing State v. Marinchek, 9 Ohio App.3d 22, 23 (9th
Dist.1983). As a "meaningful exchange" did not take place between the defendant and the
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trial court "in which [the defendant] validly waived his right to counsel," the trial court erred in
refusing to appoint counsel to represent the indigent defendant. Id. at ¶ 33.
{¶ 25} We find the logic set forth in Fields and Constable controlling in this case.
Dinka was never fully advised by the trial court of the dangers and disadvantages of self-
representation. Furthermore, Dinka's indigency status was never determined by the trial
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court. Finally, the trial court construed Dinka's conduct as a waiver of his right to counsel in
contravention of Crim.R. 22 and 44, as there is nothing in the record to indicate Dinka was
advised by the trial court and then competently and intelligently chose to waive his right to
counsel. Though it is true that waiver of the right to counsel can be implied by the conduct of
the defendant attempting to frustrate or delay the judicial process, we do not find Dinka's
conduct rose to such a level. See State v. Westfall, 12th Dist. Butler No. CA97-05-104, 1998
WL 314366, *3 (June 15, 1998) (holding that the defendant's failure to obtain new counsel
after a three-week continuance and filing of a request for continuance on the day of trial was
an attempt to delay the judicial process and constituted an implied waiver of counsel).
{¶ 26} We distinguish our holding in this case with the cases relied upon by the state.
In Westfall, we found the trial court did not abuse its discretion in denying the defendant's
request for a continuance in order to obtain an attorney and inferring the defendant waived
her right to counsel because her actions could "be reasonably perceived as taking advantage
of the trial court by claiming [his or her] right to counsel in order to frustrate or delay the
judicial process." Id. at *3, quoting State v. Hook, 33 Ohio App.3d 101, 104 (10th Dist.1986).
The defendant was given almost three weeks before her trial date to find an attorney, was
not indigent, and had previously hired a law firm to represent her in the matter. In the
4. We note that, while it is unclear in the record whether Dinka was indigent and entitled to representation at the
time of his bench trial, Dinka successfully retained court-appointed counsel for his appeal after submitting an
affidavit of indigency.
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present case, Dinka was given two weeks to find representation after being released from jail
just days before and his indigency status was left undetermined. Though Dinka was
apparently provided a public defender, he claims he was never able to make contact with her
and the trial court's own statements at the first trial date indicate that the public defender had
not yet been assigned to the case but would "probably" be assigned if it was determined
Dinka was indigent.5
{¶ 27} In City of Lebanon/State v. Dennis, 12th Dist. Warren No. CA93-08-063, 1994
WL 160172 (May 2, 1994), we found the trial court did not err in concluding that the
defendant had impliedly waived the right to counsel where the defendant "repeatedly
refuse[d] to take effective steps to retain counsel." Id. at *2. The trial court had advised the
defendant of his right to counsel, inquired as to whether the defendant was indigent and in
need of court-appointed counsel, repeatedly informed the defendant of the dangers and
disadvantages of self-representation, and granted the defendant two continuances for the
purposes of retaining counsel. Id. In the case at bar, the trial court never advised Dinka of
his right to counsel on the record, never inquired into whether Dinka was indigent, and never
informed Dinka of the dangers and disadvantages of self-representation.
{¶ 28} Accordingly, we sustain Dinka's first assignment of error. Dinka's remaining
assignment of error is dismissed as moot pursuant to App.R. 12(A)(1)(c). The cause is
remanded to the trial court for further proceedings consistent with this opinion, where Dinka
"must be afforded a new trial wherein he is to be represented by counsel, unless he makes a
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knowing and voluntary waiver thereof." State v. Fields, 1998 WL 372367 at *3, citing State
5. We note that it is not unreasonable for a defendant to wish to speak to his trial counsel, whether court-
appointed or retained, prior to the day of trial.
6. In remanding, we note that the trial court was not required to remove Dinka's public defender from the record
simply because Dinka was displeased with her representation. Had the court determined Dinka's reasons for
wanting a new attorney were meritless, the court could have required Dinka to proceed with the public defender.
See State v. Cowans, 87 Ohio St.3d 68, 72-73, 1999-Ohio-250; Fields at *3.
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v. Dressler, 11th Dist. Portage No. 95-P-0001, 1997 WL 269193, *13 (May 2, 1997).
{¶ 29} Reversed and remanded.
RINGLAND, P.J., and PIPER, J., concur.
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