State v. Roland , 2013 Ohio 1382 ( 2013 )

[Cite as State v. Roland, 2013-Ohio-1382.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2012-05-104
: OPINION
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:
ROBIN ROLAND, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY AREA II COURT
Case No. 11CRB01187
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Scott Blauvelt, 246 High Street, Hamilton, Ohio 45011, for defendant-appellant
RINGLAND, P.J.
{¶ 1} Defendant-appellant, Robin Roland, appeals his conviction for criminal trespass
from the Butler County Area II Court.
{¶ 2} On December 1, 2011, appellant allegedly entered onto the property of his ex-
wife after his ex-wife and minor daughter had told him he was not permitted to do so.
Appellant was subsequently charged with criminal trespass, a misdemeanor of the fourth
degree in violation of R.C. 2911.21.
Butler CA2012-05-104
{¶ 3} Appellant completed an affidavit of indigency form and was appointed counsel
to represent him in a bench trial scheduled for January 11, 2012. At the bench trial, counsel
for appellant requested and was granted permission to withdraw from representation based
on a breakdown of communication with appellant. The matter then proceeded to trial with
appellant representing himself pro se.
{¶ 4} Following multiple continuances in progress during trial, first to January 25,
2011, and then to May 1, 2011, appellant was found guilty of criminal trespass and
sentenced to a jail term of 30 days, suspended, and the payment of court costs. Appellant
was also ordered to serve a two-year term of community control. Finally, the court ordered
that appellant have no contact with his ex-wife or minor daughter.
{¶ 5} Appellant now appeals from that conviction, raising three assignments of error
for our review.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT, AND
DENIED APPELLANT 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.
{¶ 8} Within this assignment of error, appellant argues that, "[i]t is prejudicial error for
a trial court to require an indigent accused to proceed in a case without counsel where the
trial court does not comply with the requirements for finding a knowing, intelligent and
voluntary waiver of the fundamental right to counsel."
{¶ 9} The Sixth and Fourteenth Amendments to the United States Constitution
guarantee a criminal defendant the constitutional right of self-representation when the
defendant voluntarily, knowingly, and intelligently elects to waive his right to be represented
by an attorney. State v. Gibson, 45 Ohio St. 2d 366 (1976), paragraph one of the syllabus,
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citing Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525 (1975). To establish an effective
waiver of counsel, the trial court must make sufficient inquiry to determine whether the
defendant fully understands and intelligently waives this right. Gibson at paragraph two of
the syllabus. While no single definitive test exists in determining whether a defendant
voluntarily, knowingly, and intelligently waives his right to an attorney, Ohio courts generally
examine whether the totality of the circumstances demonstrate such a waiver. State v.
Doyle, 12th Dist. No. CA2005-11-020, 2006-Ohio-5373, ¶ 9.
{¶ 10} "Nonetheless, '[t]o 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. * * * 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.'" Gibson, 45 Ohio St. 2d at 377, quoting Von
Moltke v. Gillies, 332 U.S. 708, 723, 68 S. Ct. 316 (1948).
{¶ 11} Appellee concedes that a valid waiver of the right to counsel was not obtained
from appellant. A review of the record indicates that while appellant agreed to proceed
without an attorney, that was done without the trial court properly advising him 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.
{¶ 12} In light of the foregoing, having found that the trial court failed to obtain a valid
waiver of appellant's right to counsel, appellant's first assignment of error is sustained.
{¶ 13} Assignment of Error No. 2:
{¶ 14} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN
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ENTERING A GUILTY VERDICT FOR CRIMINAL TRESPASS CONTRARY TO
APPELLANT'S RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I
OF THE OHIO CONSTITUTION.
{¶ 15} Within this assignment of error, appellant argues that "[t]he State of Ohio failed
to present sufficient evidence to establish, beyond a reasonable doubt, the essential element
of 'lack of privilege.'" Due to double jeopardy considerations, appellant's challenge of the
sufficiency of the evidence supporting his conviction is not rendered moot by the granting of a
new trial. State v. Tillman, 12th Dist. No. CA2003-09-243, 2004-Ohio-6240, ¶ 36.
{¶ 16} When reviewing the sufficiency of the evidence underlying a criminal conviction,
an appellate court examines the evidence in order to determine whether such evidence, if
believed, would support a conviction. State v. Wilson, 12th Dist. No. CA2006-01-007, 2007-
Ohio-2298, ¶ 33. "The relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St. 3d 259 (1991),
paragraph two of the syllabus.
{¶ 17} R.C. 2911.21 defines criminal trespass, in pertinent part, as: "(A) No person,
without privilege to do so, shall do any of the following: (1) Knowingly enter or remain on the
land or premises of another[.]" Privilege is the distinguishing characteristic between unlawful
trespass and lawful presence on the land or premises of another. See State v. Russ, 12th
Dist. No. CA99-07-074, 2000 WL 864989 at 7 (June 26, 2000). Privilege is "an immunity,
license, or right conferred by law, bestowed by express or implied grant, arising out of status,
position, office, or relationship, or growing out of necessity." R.C. 2901.01(A)(12). "Where
no privilege exists, entry constitutes trespass." Russ at 7, quoting State v. Lyons, 18 Ohio
St.3d 204, 206 (1985).
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{¶ 18} In the present case, appellant argues that there was insufficient evidence to
support a conviction because appellee failed to present evidence to prove the element of lack
of privilege. In support of his argument, appellant cites the testimony of his ex-wife's current
husband that he had given appellant permission to enter the property "a couple of years
ago."
{¶ 19} Conversely, there was testimony from appellant's ex-wife and minor daughter
that both parties had advised appellant recently that he was not permitted to enter the
property. Appellant's ex-wife specifically testified that prior to the alleged incident on
December 1, 2011, she had told him as recently as the "first week of November" that he was
not allowed to enter her property. Appellant's minor daughter also testified that she had told
him not to enter the property "a month or two" before December 1, 2011.
{¶ 20} Based on the testimony of appellant's ex-wife and minor daughter, and viewing
that testimony in the light most favorable to the prosecution, we find that there was sufficient
evidence for a rational trier of fact to find that appellant lacked privilege to enter the property
beyond a reasonable doubt.
{¶ 21} The question of whether appellant believed he had permission to enter the
property based on an invitation from ex-wife's current husband "a couple of years ago" is a
question of credibility and weight, not a question of sufficiency.
{¶ 22} In light of the foregoing, having found that the evidence was sufficient, if
believed, to support a conviction, appellant's second assignment of error is overruled.
{¶ 23} Assignment of Error No. 3:
{¶ 24} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN
ENTERING A GUILTY VERDICT FOR CRIMINAL TRESPASS WHERE SAID VERDICT
WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 25} Having found that appellant was denied the right to counsel and must be
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granted a new trial under appellant's first assignment of error, this assignment of error is
rendered moot.
{¶ 26} Judgment reversed and cause remanded for a new trial.
M. POWELL, J., concurs.
PIPER, J., concurs separately.
PIPER, J., concurring separately.
{¶ 27} I concur with the above opinion in all regards in that the defendant's conviction
should be reversed based on the first assignment of error and the case remanded for a new
trial. See State v. Martin, 103 Ohio St. 3d 385, 2004-Ohio-5471; State v. Bizzell, 12th Dist.
No. CA2006-04-015, 2007-Ohio-2160. I write separately only to expand upon my reasoning.
{¶ 28} I am sympathetic to the trial court's attempts to engage in dialogue with
appellant. Appellant's interruptions and responses made any meaningful dialogue extremely
difficult. Furthermore, appellant seemed to say different things at different times making the
situation even more confusing. However, even in minor offenses the court is still under an
obligation to engage in meaningful dialogue with the defendant so as to ascertain the
defendant's understanding as to the dangers and disadvantages of self-representation.
State v. Morrison, 5th Dist. No. 11-CA-29, 2012-Ohio-2154.
{¶ 29} In State v. Doyle, 12th Dist. No. CA2005-11-020, 2006-Ohio-5373, we held that
the defendant could not show that but for the trial court's failure to properly advise Doyle
pursuant to Gibson and Faretta, Doyle would not have waived his right to counsel and would
not have proceeded pro se. However, in Doyle, there were pretrial hearings where
discussions took place indicating that Doyle was aware of the charges against him, the
possible punishment for those charges, as well as the seriousness of the offenses.
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Additionally, Doyle demonstrated knowledge of the law and even filed appropriate pro se
pretrial motions. However, in the case before us, there is little in the record to demonstrate
facts similar to those found in Doyle.
{¶ 30} We have consistently written that the dialogue with a defendant who desires to
proceed pro se must be extensive. In Doyle, we emphasized that the trial court has a
responsibility to insure that the defendant knows (a) the nature of the charges against him,
(b) the statutory offenses included within those charges, (c) the range of allowable
punishments thereunder, and (d) possible defenses to the charges and circumstances that
may be in mitigation of the charges. We also stated that the defendant must be advised:
(1) self-representation would be detrimental;
(2) the defendant will be held to the same standards as an
attorney;
(3) thus, the defendant must follow all technical rules of
substantive, procedural, and evidentiary law;
(4) a defendant's lack of knowledge of evidentiary and
procedural rules will not prevent the court from enforcing
them;
(5) the defendant's lack of knowledge of these rules may result
in waiving review of certain issues on appeal;
(6) if the defendant has any difficulty in presenting his defense
and complying with procedural rules, the court cannot and
will not assist him in the presentation of his case so that it is
done properly;
(7) the prosecution would be represented by an experienced
attorney;
(8) the right of self-representation is not a license to abuse the
dignity of the courtroom; thus, if there is a disruption of the
trial, the right to self-representation can be vacated; and
(9) whatever else may or may not be open to him on appeal, a
defendant who elects to represent himself cannot thereafter
complain that the quality of his own defense amounted to a
denial of effective assistance of counsel.
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{¶ 31} We went on to suggest that a trial court in assessing the defendant's decision-
making abilities would be wise to also put on the record whether or not:
(10) the defendant suffers from any physical or mental disease
or disability;
(11) is under the influence of drugs or alcohol; and
(12) was forced or was promised anything to waive his right to
counsel.
{¶ 32} As the right to counsel is so jealously guarded by established precedent, we
have continued to repeat the need for trial courts to investigate scrupulously and thoroughly
as needed before permitting a defendant to waive counsel and proceed pro se. State v.
Combs, 12th Dist. No. CA2011-01-001, 2012-Ohio-682. Precedent on this subject has been
specific and articulate so that trial courts may choose to implement a form designed to cover
the necessary discussion as courts do with guilty pleas, the waiver of speedy trial, or the
waiver of a jury trial. With crowded dockets and individuals infrequently electing to proceed
pro se, it becomes easy to lose the degree of thoroughness that is actually required.
{¶ 33} Thus, I agree with our decision today. Appellant's first assignment of error must
be considered well-taken and sustained.
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