[Cite as State v. Estridge , 2022-Ohio-208.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY

STATE OF OHIO Plaintiff-Appellee

v. JUSTIN ESTRIDGE Defendant-Appellant : : : : : : : : : : Appellate Case No. 2021-CA-25

Trial Court Case No. 2021-CRB-2332 (Criminal Appeal from Municipal Court)

. . . . . . . . . . . O P I N I O N Rendered on the 28th day of January, 2022.

. . . . . . . . . . . JARED C. CHAMBERLAIN, Atty. Reg. No. 0090785 and LENEE M. BROSH , Atty. Reg. No. 0075642, Miami County Municipal Prosecuting Attorneys, 201 West Main Street, Troy, Ohio 45373 Attorneys for Plaintiff-Appellee JOHN A. FISCHER, Atty. Reg. No. 0068346, 70 Birch Alley, Suite 240, Beavercreek, Ohio 45440 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

WELBAUM, J.-2-

{¶ 1} Defendant-appellant, Justin Estridge, appeals from his convicti on in the Miami County Municipal Court after pleading guilty to one misde meanor count of possessing a controlled substance. In support of his appeal, E stridge contends that the trial court erred by accepting his guilty plea and by sentencin g him to jail without first obtaining a valid waiver of his constitutional right to counsel . For the reasons outlined below, the portion of the trial court’s judgment imposing a jai l sentence will be vacated, and all other aspects of the tria l court’s judgment will be aff irmed.

Facts and Course of Proceedings {¶ 2} On July 29, 2021, the State filed a criminal complaint charging Estridge with one count of possession of a controlled substance in violation of R.C. 2925.11(A), a misdemeanor of the first degree. The same day, Estridge appear ed before the trial court unrepresented by counsel and entered a guilty plea to the charg ed offense. The trial court accepted Estridge’s guilty plea and immediately sentenced him to 180 days in jail with 21 days of jail-time credit. The trial court also ordered Estridge to pay court costs. Estridge appeals from his conviction, raising a single assignme nt of error for review.

Assignment of Error {¶ 3} Under his sole assignment of error, Estridge contends that the trial court erred by accepting his guilty plea and sentencing him to jail w ithout first obtaining a valid waiver of his constitutional right to counsel. Although Estrid ge asserts that the trial court erred by accepting his guilty plea without obtaining a valid wa iver of counsel, Estridge is-3- not requesting that this court reverse his conviction. Rather, Estridge simply argues that

the failure to obtain a valid waiver of counsel warrants the va cation of his jail sentence. We agree. {¶ 4} “A criminal defendant has the right to assistance of counsel fo r [his or] her defense, pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution .” State v. Sexton , 2d Dist. Montgomery No. 23152, 2010-Ohio-844, ¶ 13, citing Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 779 (1963) and State v. Martin , 103 Ohio St.3d 385, 2004-Ohio5471, 816 N.E.2d 227, ¶ 22. Therefore, “[n]o person may be imp risoned for an offense, whether it is classified as a felony, a misdemeanor, or a petty offense, unless that person was represented by counsel at trial.” State v. Davis , 2d Dist. Montgomery No. 23248, 2009-Ohio-4786, ¶ 30, citing Argersinger v. Hamlin , 407 U.S. 25, 37, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Sexton at ¶ 13. {¶ 5} A defendant’s right to counsel may be waived, however, as long as the defendant “voluntarily, knowingly, and intelligently elects to do so.” State v. Owens , 2d Dist. Montgomery No. 23150, 2010-Ohio-564, ¶ 23, citing State v. Youngblood , 2d Dist. Clark No. 2005-CA-87, 2006-Ohio-3853, ¶ 10 and State v. Gibson , 45 Ohio St.2d 366, 345 N.E.2d 399 (1976); Sexton at ¶ 14. “We conduct an independent review to determine whether a defendant voluntarily, knowingly, and intel ligently waived his right to counsel based on the totality of the circumstances.” Owens at ¶ 26, citing State v.

Gatewood , 2d Dist. Clark No. 2008-CA-64, 2009-Ohio-5610, ¶ 33. {¶ 6} To constitute a valid waiver of the right to counsel, “ ‘a tria l court must make a sufficient inquiry to determine whether a defendant fully und erstands and intelligently-4- relinquishes that right.’ ” Davis at ¶ 33, quoting State v. Hall , 2d Dist. Greene No. 2002- CA-6, 2002-Ohio-4678, ¶ 8; Owens at ¶ 25, citing Gibson at paragraph two of the syllabus. Presuming a waiver of the right to counsel from a silent record is “impermissible.” State

v. Wellman , 37 Ohio St.2d 162, 309 N.E.2d 915 (1974), paragraph two of th e syllabus. Therefore, a defendant’s waiver of his or her right to counsel cannot be inferred from the

defendant’s silence. Owens at ¶ 29, citing Wellman at paragraph two of the syllabus and State v. McCrory , 11th Dist. Portage No. 2006-P-0017, 2006-Ohio-6348, ¶ 23. “T he record must show, or there must be an allegation and evidence w hich shows, that an accused was offered counsel but intelligently and understanding ly rejected the offer. Anything less is not waiver.” Wellman at paragraph two of the syllabus. {¶ 7} When the record is devoid of evidence establishing that the def endant knowingly, intelligently, and voluntarily waived his or her rig ht to counsel in open court, the trial court is prohibited from sentencing the defendant to a period of confinement.

Owens at ¶ 29; State v. Lewis , 2017-Ohio-9311, 102 N.E.3d 1169, ¶ 10 (2d Dist.) (“Absent a proper inquiry into [defendant’ s] ability to retain counsel, waiver of her right to counsel, and invocation of her right to represent herself, the confineme nt portion of her sentence must be vacated.”); State v. Edmonds , 2d Dist. Montgomery Nos. 24155, 24156, 2011- Ohio-1282, ¶ 4 (“The Sixth and Fourteenth Amendments to the Uni ted States Constitution prohibit confinement for any offense unless an indigent defenda nt has validly waived his right to appointed counsel.”). This principle is recognized in Crim.R. 44(B), which provides the following: (B) Counsel in Petty Offenses. Where a defendant charged with a petty offense is unable to obtain counsel, the court may assi gn counsel to-5- represent the defendant. When a defendant charged with a petty offense is unable to obtain counsel, no sentence of confinement may be imposed upon the defendant, unless after being fully advised by the cou rt, the defendant knowingly, intelligently, and voluntarily waives assi gnment of

counsel. {¶ 8} Crim.R. 44(C) also provides that a defendant’s “[w]aiver of cou nsel shall be in open court and the advice and waiver shall be recorded as pr ovided in [Crim.R. 22].” Therefore, the waiver of counsel “must affirmatively appear in the record[.]” Owens at ¶ 24. “[T]he State bears the burden of overcoming presumptions against a valid waiver[,]” as “ ‘[c]ourts are to indulge every reasonable presu mption against the waiver of a fundamental constitutional right, including the right to coun sel.’ ” Id ., quoting State v. Dyer , 117 Ohio App.3d 92, 95, 689 N.E.2d 1034 (2d Dist.1996). {¶ 9} While the failure to obtain a valid waiver of counsel as requir ed by Crim.R. 44(B) affects the trial court’s ability to sentence a defendant to a period of confinement, it “does not affect the validity of a defendant’s pleas or its fin dings on those pleas.” (Citation omitted.) State v. Lanton , 2d Dist. Greene No. 2002-CA-124, 2003-Ohio-4715, ¶ 23. “ ‘Because the right to the assistance of counsel in a p etty offense is discretionary under the Criminal Rules, the fact that the trial court failed to obtain a valid waiver under Crim.R. 44 [(B) and] (C) does not mean that the judgment itself must be vacated.’ ”

Owens at ¶ 30, quoting Springfield v. Morgan , 2d Dist. Clark No. 2007-CA-61, 2008-Ohio2084, ¶ 11. “ ‘Where * * * the offense is a petty offense, the re is nothing fatally defective with the judgment in general, but only with the “sentence of co nfinement.” ’ ” Morgan at ¶ 11, quoting State v. Donahoe , 2d Dist. Greene No. 1990-CA-55, 1991 WL 38899, *2-6- (Mar. 21, 1991). (Other citation omitted.) Therefore, a trial court’s failure to obtain a valid waiver of counsel in petty offense cases does not warrant a reversal of a defendant’s

conviction. Owens at ¶ 30. The “conviction remains valid, * * * as does the non -jail portion of [the] sentence.” Lewis at ¶ 10. {¶ 10} In this case, Estridge was charged with and convicted of posses sion of a controlled substance as a first degree misdemeanor, which is a petty offense. See Crim.R. 2(C)-(D) and R.C. 2929.24 (A)(1). There is no dispute t hat a record of the relevant trial court proceedings does not exist in this case, n or is there any dispute that Estridge was not represented by counsel during those proceeding s. There is also no written waiver or other documentation in the record to suggest that Estridge was apprised of his right to counsel or that he knowingly, intelligently, an d voluntarily waived his right to counsel in open court. Despite this, the State argues that a waiver of Estridge’s right

to counsel can be inferred under the circumstances of this case . We disagree. {¶ 11} In support of its argument, the State asserts that Estridge was originally charged with felony possession of a controlled substance in Mia mi County M.C. No. 2021- CRA-1773, for which Estridge was appointed counsel. The State also asserts that Estridge’s appointed counsel negotiated the dismissal of the fe lony possession charge in exchange for Estridge’s pleading guilty to a lesser misdemeanor possession offense. The State further asserts that Estridge accepted the negotiated plea agreement and that the State thereafter dismissed the felony charge and then filed the misdemeanor possession charge at issue in this case. The State claims that , because the plea agreement was negotiated through Estridge’s appointed counsel i n Case No. 2021-CRA1773, and was agreed to by Estridge, Estridge implicitly waived his right to counsel in the-7- instant case. {¶ 12} Upon review, we find that the trial court’s online docket 1 supports the State’s assertion that Estridge was charged for felony possessi on of a controlled substance in Case No. 2021-CRA-1773, and that Estridge was appo inted counsel in that case. The online docket also establishes that the felony charg e was dismissed on July 29, 2021, which is the same day that the State filed the misdem eanor possession charge in this case. It is also the same day that Estridge entered hi s guilty plea to the misdemeanor possession charge and received his 180-day jail sen tence. There is, however, nothing in the available record to support the State’s assertion that Estridge agreed to plead guilty to the misdemeanor charge based on a ple a agreement negotiated by his appointed counsel in Case No. 2021-CRA-1773. All that c an be discerned from the record is that the State dismissed the felony possession ch arge the same day that it filed the misdemeanor possession charge, and that Estridge ente red his guilty plea to the misdemeanor possession charge immediately thereafter. {¶ 13} More importantly, there is no record of the relevant trial cour t proceedings in this case and thus no transcript to review. There is also n o documentation in the

1 We note that it is a common practice for appellate courts to t ake judicial notice of publically accessible online court dockets. See State v. McClurg , 2d Dist. Darke No. 2019-CA-15, 2020-Ohio-1144, ¶ 8; State v. Thompson , 2d Dist. Montgomery No. 28449, 2019-Ohio-5140, fn. 1, citing State v. Kempton , 4th Dist. Ross No. 15CA3489, 2018-Ohio928, ¶ 17 (there are “circumstances in which an appellate court may properly take judicial notice of publicly accessible records, including court document s and dockets, in deciding appeals”); State ex rel. Everhart v. McIntosh , 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 8 and 10 (finding that a court can take judicial notice of appropriate matters, including judicial opinions and public records accessible from the internet); Draughon v. Jenkins , 4th Dist. Ross No. 16CA3528, 2016-Ohio-5364, ¶ 26 (“both the trial court and this court can take judicial notice of [appellant’s] prior appe llate cases, which are readily accessible on the internet”).-8- record suggesting that Estridge was advised of his right to cou nsel or that Estridge waived that right. In other words, the record is devoid of any eviden ce to suggest that Estridge was informed, at any time, of his constitutional right to couns el or that Estridge knowingly, intelligently, and voluntarily waived that right in open court as required by Crim.R. 44(B) and (C). {¶ 14} As previously discussed, a waiver of the right to counsel canno t be inferred

from a silent record. Wellman , 37 Ohio St.2d 162, 309 N.E.2d 915, at paragraph two of the syllabus. Therefore, given the limited record before this court, we will not presume that Estridge waived his right to counsel in this case. In the absence of a valid waiver, the trial court was prohibited from sentencing Estridge to a pe riod of incarceration. See

Owens , 2d Dist. Montgomery No. 23150, 2010-Ohio-564, at ¶ 29 ; Lewis, 2017-Ohio9311, 102 N.E.3d 1169, at ¶ 10; Edmonds , 2d Dist. Montgomery Nos. 24155, 241156, 2011-Ohio-1282, at ¶ 4. Accordingly, Estridge’s 180-day jail sentence must be vacated. {¶ 15} We note that the record indicates that Estridge was scheduled t o be released from jail on January 4, 2022. The record also indicat es that the trial court suspended the balance of Estridge’s jail sentence on October 25 , 2021. The State asserts that this was done for the purpose of permitting Estrid ge to engage in substance abuse counseling at Miami County Recovery Council. The State a lso asserts that Estridge has since absconded from his substance abuse treatment . The trial court docket supports the State’s assertion regarding Estridge’s absc onding, as the trial court issued a warrant for Estridge’s arrest on November 2, 2021. De spite this, the suspended portion of Estridge’s jail sentence must also be vacated since there was no valid waiver of Estridge’s right to counsel. See Owens at ¶ 30 (“the sentence of confinement--both-9- actual and suspended--must be vacated”). {¶ 16} For the foregoing reasons, Estridge’s sole assignment of error is sustained.

Conclusion {¶ 17} Having sustained Estridge’s assignment of error, the portion of the trial court’s judgment imposing a jail sentence, including the suspen ded portion of that jail sentence, shall be vacated. Other than that modification, the judgment of the trial court

is affirmed.

. . . . . . . . . . . . .

TUCKER, P.J. and D ONOVAN, J., concur.

Copies sent to:

Jared B. Chamberlain Lenee M. Brosh John A. Fischer Hon. Gary A. Nasal