[Cite as Parma v. Wiseman, 2015-Ohio-4983.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 102404

CITY OF PARMA

PLAINTIFF-APPELLEE

vs. 

RODNEY L. WISEMAN

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED AS MODIFIED 

Criminal Appeal from the 

Parma Municipal Court 

Case No. 14CRB04215 

 BEFORE: Blackmon, J., Keough, P.J., and Laster Mays, J. 

 RELEASED AND JOURNALIZED: December 3, 2015
ATTORNEY FOR APPELLANT 

John W. Gold 

101 W. Water Street 

Sandusky, Ohio 44870

ATTORNEYS FOR APPELLEE

Timothy G. Dobeck 

Law Director/Chief Prosecutor 

City of Parma 

6611 Ridge Road 

Parma, Ohio 44129 

By: Richard A. Neff 

Assistant Prosecutor 

City of Parma 

5555 Powers Boulevard 

Parma, Ohio 44129 
PATRICIA ANN BLACKMON, J.: 

{¶1} Appellant Rodney L. Wiseman (“Wiseman”) appeals his conviction for 

theft and assigns the following assigned error for our review: 

Appellant was denied his right to counsel when the trial court proceeded to 

a bench trial without establishing that appellant effectively waived his right 

to counsel. 

{¶2} Having reviewed the record and pertinent law, we vacate that portion of 

Wiseman’s sentence that imposed jail time and affirm Wiseman’s conviction as modified. 

 The apposite facts follow. 

{¶3} On August 25, 2014, the city of Parma charged Wiseman with one count of 

theft, a first-degree misdemeanor. On September 10, 2014, Wiseman was arraigned. 

Because there were so many defendants in court that day, the trial court stated that in 

order to save time, the court would explain to them as a group the various pleas they 

could enter and constitutional rights they would be waiving. The trial court stated as 

follows: 

Good afternoon ladies and gentlemen. This is what they call an 

arraignment or initial appearance to tell you what you’re charged with, 

which you already know, explain your constitutional rights to you and your 

plea options and then of course take a plea from you. As far as your 

constitutional rights and your plea options, we kind of try to do that as a 

group so that you don’t have to hear it one at a time when you come up here 

over and over again. You’ll get sick of hearing the same thing over 50 

times so we’ll dispense with that. 

Tr. 2. 

 

{¶4} In explaining the defendants’ right to counsel, the court told the group: 
You have the right to counsel and you have the right in many cases to have 

counsel appointed for you if you qualify financially and cannot afford to 

obtain your own. 

Tr. 2-3. 

{¶5} After explaining their right to a jury trial, the court stated as follows: 

Your right to a jury trial, your right to a public defender does have an 

exception. If the only thing you are charged with is classified as what’s 

known as a minor misdemeanor, and what that is is an offense that carries 

no potential of any kind of jail time, the court couldn’t do it if they wanted 

to, number one, number two carries a fine of no more that $150 plus any 

applicable court costs. If that is all you’re charged with you do not have 

the right to a public defender, you obviously may hire your own 

attorney if you wish * * *. 

Tr. 3. 

{¶6} When it came Wiseman’s turn to enter a plea, he pled not guilty. No 

dialogue appears in the record between the court and Wiseman regarding waiver of 

counsel. Instead, two months later, Wiseman appeared and represented himself in a 

bench trial. 

{¶7} The trial court found Wiseman guilty of theft and sentenced him to 90 days 

in jail and imposed a $250 fine. The trial court suspended 87 of the days in jail and 

suspended $150 of the fine and placed Wiseman on probation for 18 months. 

Waiver of Counsel

{¶8} In his sole assigned error, Wiseman argues the trial court erred by 

proceeding to a bench trial without establishing that Wiseman waived his right to counsel. 

{¶9} A “petty offense” is “a misdemeanor other than [a] serious offense.” 

Crim.R. 2(D). Under Crim.R. 2(C), a “serious offense” is “any felony, and any 

misdemeanor for which the penalty prescribed by law includes confinement for more than 
six months.” The maximum penalty for Wiseman’s petty theft conviction, a first-degree 

misdemeanor, is confinement for six months. R.C. 2929.24(A)(1). Therefore, his theft 

offense constitutes a petty offense. 

{¶10} A defendant is entitled to counsel in petty offense cases unless he 

“knowingly, intelligently, and voluntarily waives assignment of counsel.” Crim.R. 44(B). 

Moreover, under Crim.R. 44(B), the trial court could not sentence Wiseman to a term of 

incarceration absent a valid waiver of counsel. Crim.R. 44(B) states as follows: 

Counsel in petty offenses. Where a defendant charged with a petty offense 

is unable to obtain counsel, the court may assign counsel to represent him. 

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. 

{¶11} If a defendant in a petty offense case chooses to waive counsel, the waiver 

must occur in open court and be recorded. See Crim.R. 22 and 44(C). 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.’” State v. Gibson, 45 Ohio 

St.2d 366, 377, 345 N.E.2d 399 (1976), quoting Von Moltke v. Gillies, 332 U.S. 708, 723, 

68 S.Ct. 316, 92 L.Ed. 309 (1948). 
{¶12} In the instant case, a review of the transcript establishes that the trial court 

never had the necessary dialogue with Wiseman regarding the waiver of counsel. There 

is also no record that Wiseman waived his right to counsel in open court. A waiver of 

the right to counsel cannot be presumed from a silent record because any such waiver 

must be affirmatively set forth on the record. State v. Dryer, 117 Ohio App.3d 92, 95, 

689 N.E.2d 1034 (2d Dist.1996). The fact that he appeared without counsel does not 

create the implication that he waived counsel. 

{¶13} The court’s failure to obtain a valid waiver of counsel in a petty offense case 

prevents the trial court from imposing a sentence on the defendant. It does not vacate the 

entire conviction. Lyndhurst v. Di Fiore, 8th Dist. Cuyahoga No. 93270, 

2010-Ohio-1578; State v. Haag, 49 Ohio App.2d 268, 271, 360 N.E.2d 756 (9th 

Dist.1976); State v. Knight, 9th Dist. Lorain No. 11CA010034, 2012-Ohio-5816; State v. 

Dowey, 9th Dist. Summit No. 25963, 2012-Ohio-4915; State v. Boughner, 11th Dist. 

Geauga No. 98-G-2161, 1999 Ohio App. LEXIS 6116 (Dec. 17, 1999); Oakwood v. 

Shackelford, 8th Dist. Cuyahoga No. 50062, 1986 Ohio App. LEXIS 5486 (Jan. 30, 

1986). Accordingly, Wiseman’s assigned error is sustained. However, in accordance 

with the above precedence, we can only modify Wiseman’s sentence by vacating the part 

imposing jail time. 

{¶14} Judgment affirmed as modified. 

It is ordered that appellant recover of appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate be sent to the Parma Municipal Court to carry 

this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, JUDGE 

KATHLEEN ANN KEOUGH, P.J., and 

ANITA LASTER MAYS, J., CONCUR