[Cite as State v. Briggs , 2021-Ohio-1980.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO Appellee

v.

DENNIS BRIGGS Appellant C.A. Nos. 18AP0008 18AP0023

APPEAL FROM JUDGMENT ENTERED IN THE WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO CASE Nos. 2017 CR-B 002198 2017 CR-B 002199 2017 CR-B 002200 2017 CR-B 002201

DECISION AND JOURNAL ENTRY Dated: June 14, 2021

SUTTON, Judge. {¶1} Defendant-Appellant Dennis Briggs appeals the judgments of the Wayne County Municipal Court. This Court, in determining Mr. Briggs’ waiver of his Sixth Amendment right to counsel was not knowingly, voluntarily, and intelligently made, affirms Mr. Briggs’ convictions for trespass, as modified, and further remands this matter to t he trial court with instructions to immediately vacate Mr. Briggs’ 30-day jail sentence.

I.

The Convictions and Sentence {¶2} Following two bench trials, set approximately one month apart, the Wayne County Municipal Court found Mr. Briggs guilty of four counts of crimi nal trespass in violation of R.C. 2911.21(A)(3). Mr. Briggs, a homeless individual, was pro se, or without counsel, at both trials.2

As such, Mr. Briggs faced a number of challenges involving disc overy, continuances, and witnesses. The trial court sentenced Mr. Briggs to 30 days in jail. Further, the trial court stayed Mr. Briggs’ jail sentence during his first appeal to this Court

. The First Appeal {¶3} In State v. Briggs , 9th Dist. Wayne Nos. 18AP0008, 18AP0023, 2019-Ohio-5290, ¶ 23 (“ Briggs I ”), Mr. Briggs, through counsel, raised only two assignments of error: (1) Mr. Briggs’ convictions were based upon insufficient evidence and a gainst the manifest weight of the evidence; and (2) the trial court improperly allowed hearsay te stimony. This Court overruled both assignments of error and affirm ed Mr. Briggs’ convictions and s entence. Application to Reopen Appeal {¶4} Through newly appointed counsel, Mr. Briggs filed an Applicatio n to Reopen his direct appeal. In his applica tion, Mr. Briggs contended that h is former counsel was ineffective by: (1) failing to order all pre-trial transcripts; and (2) failing to raise an assignment of error regarding whether Mr. Briggs knowingly, intelligently, and voluntarily wa ived his right to counsel prior to trial. In finding a genuine issue as to whether Mr. Briggs was deprived effective assistance of counsel on appeal, this Court gran ted the Application to Reopen . Further, Mr. Briggs filed motions, with this Court and the trial court, to extend the sus pension of the execution of his sentence on a personal recognizance bond. Subsequent to the tr ial court’s denial of Mr. Briggs’ motion, we granted the motion on the bond and conditions previo usly ordered by the trial court. This matter proceeds a s if on initial appeal.3

The Present Appeal {¶5} Mr. Briggs raises a single assignment of error for our consider ation regarding whether he validly waived his constitutional right to counsel p rior to the commencement of the trials for criminal trespass. W e now discuss this assignment o f error.

II.

ASSIGNMENT OF ERROR

DENNIS BRIGGS WAS DEPRIVED OF HIS RIGHT TO COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND CRIM.R. 44(B) WHEN THE TRIAL COURT SENTENCED HIM TO CONFINEMENT WITHOUT HAVING INQUIRED INTO WHETHER HE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVED HIS RIGHT TO COUNSEL. {¶6} In his sole assignment of error, Mr. Briggs argues that, althou gh the trial court informed him of his right to counsel and the potential penaltie s for criminal trespass, the trial court failed to advise him about: (1) the requirement to follow the R ules of Evidence; (2) possible defenses to the charges; or (3) any applicable mitigating circu mstances. As such, Mr. Briggs

asserts the trial c ourt failed to ensure he knowingly, intellig ently, and voluntarily waived his right to counsel. Further, Mr. Briggs argues that the present appeal is factually similar to State v. Dowey , 9th Dist. Summit No. 25963, 2012-Ohio-4915, wherein this Court affirmed the defendant’s convictions and modified the jud gments to vacate his jail sente nce. Mr. Briggs requests this Court

issue the Dowey remedy in this matter. {¶7} Plaintiff-Appellee, the State of Ohio, acknowledges that Mr. Br iggs was “never advised of the possible defenses to the charges or of any possi ble mitigation.” However, notwithstanding these d eficiencies, the State urges this Court to find the trial court substantially complied with its obligation to ensure Mr. Briggs knowingly, vo luntarily, and intelligently waived4

his right to counsel. In the a lternative, the State submits th at if this Court does not find substantial compliance or a valid waiver of Mr. Briggs’ right to counsel, t his Court should affirm Mr. Briggs’

convictions and vacate hi s jail sentence. Waiver of Right to Counsel {¶8} “The Sixth Amendment guarantees a defendant both the right to c ounsel and ‘the right to elect self-representation instead.’” State v. Yeager , 9th Dist. Summit Nos. 28604, 28617, 2018-Ohio-574, ¶ 6, quoting State v. Tucker , 9th Dist. Lorain No. 13CA010339, 2016-Ohio-1353, ¶ 11. However, “[a] defendant who w ishes to represent himself must knowingly, voluntarily, and intelligently waive his right to counsel.” Yeager at ¶ 6, citing State v. Gibson , 45 Ohio St.2d 366 (1976), paragraph one of the sy llabus. As indicated in Crim.R. 44(B): Where a defendant charged with a petty offense is unable to obt ain counsel, the court may assign counsel to represent the defendant. When a def endant charged with a petty offense is unable to obtain counsel, no sentence of confinement may be imposed upon the defendant, unless after be ing fully advised by the court, the defendant knowingly, intelligently, and vol untarily waives assignment of counsel. (Emphasis added.) {¶9} Indeed, “[t]he assistance of couns el is often a requisite to th e very existence of a

fair trial.” Argersinger v. Hamlin , 407 U.S. 25, 31 (1972). As such, “[c]ourts are to indulge eve ry reasonable presumption against the waiver of a fundamental cons titutional right including the right to be represented by counsel. ” State v. Trikilis , 9th Dist. Medina Nos. 04CA0096-M, 04CA0097- M, 2005-Ohio-4266, ¶ 12. Thus, because waiver of counsel may b e impactful upon a person’s liberties, “the trial court must make sufficient inquiry to det ermine whether [the] defendant fully understands and intelligently re linquishes [his] right.” Trikilis at ¶ 12, quoting State v. Gibson , 45 Ohio St. 2d 366 (1976) at paragr aph two of the syllabus. {¶10} This Court, in Trikilis at ¶ 13, explaine d as follows:5

In determining the sufficiency of the trial court’s inquiry in the context of a defendant’s waiver of counsel, this Court reviews the totality of the circumstances. In verifying that a waiver of counsel is made knowingly, volunt arily, and intelligently, a trial court shoul d determine whether the defen dant was advised of the dangers and disadvantages of self [-] representation. While no one factor is dispositive, [this Court] should consider whether the defendant was advised of the nature of the charges and the range of allowable punishments, and, in addition, [this Court] may consider whether the trial court advised the defendant of the possible defenses to the charges and applicable mitigating circumstances. We reaffirm our holding, however, t hat the trial court’s discussio n of possible defenses and mitigating circumstances need not be fact specific. In orde r to avoid placing the trial court in the role of a n adversary, a broader discussi on of defenses and mitigating circumstances as applicable to the pending charges i s sufficient. A court may also consider various other factors, including the defendan t’s age, education, and legal experience. (Emphasis added.) (Internal cita tions omitted.) Therefore, in determining whether the trial court made sufficient inquiry into whether Mr. Briggs knowingly, volu ntarily, and intelligently relinquished his right to counsel, this Court must look to the record and review the totality of

circumstances.

The Record as to Waiver {¶11} In the present matter, the record reflects that, at his arraign ment, a magistrate of the court assigned Mr. Briggs a public defender. The trial court t hen granted the public defender’s motion to withdraw as counsel because Mr. Briggs would not sign the fee agreement. Prior to consolidation of the four charges of criminal trespass, two pre -trial hearings were held before two different trial court judges. {¶12} At the first pre-trial hearing, on January 23, 2018, the trial court made no inquiry whatsoever into whether Mr. Briggs wished to waive his right to counsel or understood the ramifications of doing so. Instead, the judge admonished Mr. B riggs about, what he described as, a failure to cooperate with t he public defender’s office by not providing a financial affidavit. The trial court also told Mr. Briggs he could hire private counsel or represent himself. Mr. Briggs6

attempted to explain what happened with the public defender’s o ffice, but the trial court cut the conversation short. In so doing , the trial court stated: Okay. This matter is set for pre -trial conference today. You are currently unrepresented because the [c]ourt has permitted Mr. Rudy to wit hdraw as counsel of record. Because you are unrep resented, I need to have your approval to hold the pre-trial conference. The purpose for that is because you don’ t have the benefit of an attorney and I want to make sure that you want to hold the p re-trial conference. Do you want to hold the pre-trial conference? Mr. Briggs responded, “Yes, Your Honor. We are here.” The tri al court then advised Mr. Briggs of the trial on January 29, 2018, a nd asked if he would be prep ared to proceed. Mr. Briggs responded, “Yes. Your Honor.” The pre-trial hearing ended shor tly thereafter. {¶13} At the second pre-trial hearin g on January 25, 2018, before a d ifferent judge, the prosecutor advised the trial cour t that Mr. Briggs wanted to re present himself. The trial court asked Mr. Briggs if he had an attorney or desired to hire an attorney for assistance. In response, Mr. Briggs explained: I don’t, Your Honor. The [m]agistrate recommended the Public D efender’s Office and I went down there and they asked me if I was homeless and I said yes. They asked me if I had any income and I said no and they said well t hen you are eligible. But see when I read the paper t hey wanted me to sign a paper. The paper said that either, Your Honor, or the county could claim that I had to pay anyway regardless of that and so I addressed that to them and they said that they weren’t willing to put anything in writing that said that I wouldn’t have to pay. And so because of the possibility of, Your Honor, [] or the county, because legal fee s are really expensive.

The trial court conti nued questioning Mr. Briggs about whether he was employed or had any assets to pay for an attorney. Mr. Briggs further explained: [T]he problem is that the Public Defender’s Office and I can’t agree on, you know, when you sign something you are bound by it and so if, Your Hon or, or the other, Your Honor, or the county would claim that I have to pay those fees, then I would have to pay them. I wouldn’t have any dispute. So, I think it is fair for me to just proceed pro se so then there is no dispute over possible legal fees. To be honest with you, Your Honor, I thank you for taking the time to talk t o me. I don’t understand why I’m here. The facts of this case are clear. I w as permitted to be [at Family Pools and Spas.]7

After granting continuances of t he scheduled trials, the judge then stated: And in the meantime, Mr. Briggs, I would strongly advise you to consult with an attorney to assist you in this matter. And if you are asking f or the Court for an appointment or you at least want to consider having any attorne y assist you with this, the Court would appoint one to help you with this if that ’s something you are asking for. I don’t know if you want to handle this on your ow n or if you would like to speak with somebody at least to go over these cases. You have four of them. I can’t tell you what to do with your case. You’re at liberty to represent yourself pro se if you so choose, but these cases, you have four cases. They are all misdemeanors of the fourth degree. And as you saw the individu al that was sentenced before you, that was a misdemeanor of the fourth degr ee, there is the possibility of up to thirty days in the Wayne County Jail if yo u would be convicted of any one of these offenses so.

* * * So, and I’m not saying that would be the sentence or that you w ould even be convicted but I’m just saying t hat there are potential conseque nces of this and this might be something that might be good to have an attorney assis t you with. Do you understand?

Mr. Briggs responded, “Okay, Your Honor.” The record also indi cates that, prior to the commencement of either trial, no additional dialogue was exchan ged regarding the waiver of Mr. Briggs’ right to counsel. Application of Law to the Record {¶14} Based upon relevant portions of the record, as excerpted above, the trial court did not fully warn Mr. Briggs of the dangers and disadvantages of s elf-representation or sufficiently verify Mr. Briggs’ waiver of counsel was made knowingly, volunt arily, and intelligently. In Dowey , this Court vacated a defendant’s jail sentence where the reco rd indicated that “the municipal court [never] told Mr. Dowey about the dangers and di sadvantages of selfrepresentation[,] did not tell Mr. Dowey about his need to foll ow the rules of evidence and8

procedure, about possible defens es to the charges, or about any applicable mitigating circumstances.” (Internal quotations and cita tions omitted.) Dowey at ¶ 5. {¶15} Here, like Dowey , the trial court a dvised Mr. Briggs that, if convicted, crimin al trespass is a fourth-degree felony punishable by 30 days in jai l, but the record is completely void of any discussion, even cursory in nature, regarding following the rules of evidence and procedure, possible defenses to the charges and applicable mitigating circ umstances. When Mr. Briggs attempted to disclose he had permission to be at Family Pools a nd Spas, the trial court stated, “I don’t want you to get into your d efenses and all of those thing s that you will be entitled to argue or have somebody argue on your behalf.” At that time, the tria l court could have broadly informed Mr. Briggs about defenses or possible mitigating circumstances to criminal trespass without taking an adversarial role against the S tate. Moreover, there is noth ing in the record to indicate the trial court considered Mr. Briggs’ age , education, or legal experienc e in order to gauge whether Mr. Briggs’ knowingly, voluntarily a nd intelligently waived his rig ht to counsel. Mr. Briggs was also never advised he would be require d to follow the Rules of Crimi nal Procedure and Evidence. {¶16} In addition, the record shows Mr. Briggs, a homeless individual , repeatedly expressed his concern to the tri al court that he would not have the ability to pay for legal fees should he accept the appointment of counsel. Specifically, Mr. Briggs told the trial court, “legal fees are really expensive,” and it is “fair for me to just proc eed pro se so then there is no dispute over possible legal fees.” After hearing Mr. Briggs’ concerns, the trial court simply ended the discussion and allowed him to pro ceed pro se without ensuring t he waiver was voluntary. {¶17} This Court, based upon the totality of the circumstances, simpl y cannot say Mr. Briggs knowingly, voluntarily, and intelligently waived his Six th Amendment right to counsel. The trial court clearly failed to warn Mr. Briggs about the dan gers and disadvantages of self-9

representation prior to allowing Mr. Briggs to defend himself a gainst four counts of criminal trespass. Therefore, in line with our precedent in Dowey , supra , we instruct the trial court to immediately vacate Mr. Briggs’ 30-day jail sentence and affirm the judgments of the Wayne County Municipal Court as so modi fied. Further, because this C ourt has determined that the trial court erred to the prejudice of M r. Briggs, as explained above, and because former appellate counsel failed to raise this issue in the prior appeal, this Co urt vacates its prior judgment and enters this judgment pursuant to App.R. 26(B)(9).

III. {¶18} For the foregoing reasons, Mr. Briggs’ sole assignment of error is sustained. The judgments of the Wayne County Muni cipal Court are affirmed as m odified. We remand this matter with specific instructions to the trial court to immediately va cate Mr. Briggs’ 30-day jail sentence. Judgments affirmed as modified and remanded with instructions

to vacate 30-day jail sentence.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Wayne County Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the manda te, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30.10

Costs taxed to Appellee.

B ETTY SUTTON FOR THE COURT

CARR, P. J. TEODOSIO, J. CONCUR.

APPEARANCES: MAX HERSCH, Assistant State P ublic Defender, for Appellant. DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assi stant Prosecuting Attorney, for Appellee.