[Cite as Parma v. Battaia, 2012-Ohio-173.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 96569 

CITY OF PARMA

PLAINTIFF-APPELLEE 

vs. 

GENO BATTAIA

DEFENDANT-APPELLANT 

JUDGMENT:

REVERSED AND REMANDED

Criminal Appeal from the 

Parma Municipal Court 

Case No. 10 CRB 03693 

BEFORE: Celebrezze, P.J., S. Gallagher, J., and E. Gallagher, J. 

RELEASED AND JOURNALIZED: January 19, 2012 
ATTORNEY FOR APPELLANT

Justin M. Smith 

The J. M. Smith Co., L.P.A. 

24400 Highpoint Road 

Suite 7 

Beachwood, Ohio 44122 

ATTORNEYS FOR APPELLEE

Timothy G. Dobeck 

Law Director/Chief Prosecutor 

City of Parma 

BY: Karl R. Wetzel 

Senior Assistant Prosecutor 

6611 Ridge Road 

Parma, Ohio 44129 

FRANK D. CELEBREZZE, JR., P.J.: 

{¶ 1} Appellant, Geno Battaia, appeals from three misdemeanor 

convictions for criminal damaging and disorderly conduct. Battaia argues 

that his right to counsel was violated when the trial court did not properly 

advise him of the dangers of proceeding without an attorney when he 

dismissed his court appointed counsel just before trial, and that the trial 

court should have continued the trial when Battaia dismissed his attorney. 

After a thorough review of the record and relevant law, we reverse. 

I. Factual and Procedural History

{¶ 2} On August 15, 2010, appellant was aboard a “party bus” with a 

group of friends that ended up parked outside the Blue Moose Saloon in 

Parma, Ohio. Bus passengers disembarked and continued their festivities 
inside the Blue Moose. At some point during the evening, emergency 

dispatchers received 9-1-1 calls about a possible assault outside the bar. 

Sergeant Nicholas Hunter testified at trial that he first encountered Battaia 

outside the bar fighting with his friends. Battaia claimed that a bouncer at 

the door had assaulted him and that he was injured. Officer James Mack 

interviewed Battaia about the assault and testified that he refused medical 

treatment. Officer Mack also noted that Battaia appeared extremely 

intoxicated; he advised Battaia to reboard the bus and stay there. Sgt. 

Hunter eventually issued a citation to Battaia for disorderly conduct at 

approximately 1:00 a.m. for “struggl[ing] with friends and refus[ing] to leave.” 

 Battaia then indicated he would reboard the bus and stay there until his 

friends rejoined him to take him home, and the officers left. 

{¶ 3} Approximately a half hour later, the police were again dispatched 

to the Blue Moose when Battaia called 9-1-1 asking for paramedics. When 

Sgt. Hunter arrived, he saw Battaia, who appeared extremely intoxicated, 

struggling with paramedics and using foul language. After talking to Officer 

Mack, Battaia again refused medical treatment, and Officer Mack issued him 

a second disorderly conduct citation. Officer Mack testified that Battaia was 

transported to a detox cell because he was such a problem. 

{¶ 4} Corrections Supervisor Karen Tyrpak reported for work at 7:00 

a.m. at the Parma jail, where Battaia had spent the night. She testified that 
at approximately 10:30 a.m., the door monitor system of Battaia’s cell began 

malfunctioning. The system indicated that the door was open, but when 

checked, it was closed and locked. The door had functioned properly at 8:30 

a.m. when Tyrpak had given Battaia breakfast, but later when she examined 

the door, she found that it was sparking, smoking, and smelling of urine. 

Battaia was moved to a different cell, and Tyrpak noticed urine around and 

on the door. A maintenance person also found urine inside the door’s locking 

mechanism. 

{¶ 5} Battaia was arraigned on September 1, 2010, on two counts of 

disorderly conduct in violation of Parma Municipal Code 648.04, fourth 

degree misdemeanors, and one count of criminal damaging in violation of 

Parma Municipal Code 642.10, a second degree misdemeanor. He was 

appointed counsel after executing an affidavit of indigency, and pretrials were 

conducted. A day or two before trial, Battaia filed a grievance against 

his attorney and indicated that the attorney had not done what he was 

supposed to do to properly defend Battaia. On the day of trial, Battaia 

indicated that he, not his attorney, had requested the 9-1-1 tapes and video 

from the booking area of the Parma jail through public records requests. The 

court asked Battaia if he wished the attorney to continue to represent him, 

and Battaia said he did not. The court then instructed Battaia to sign a 
waiver of counsel with no discussion of the implications, and the court 

proceeded to a bench trial. 

{¶ 6} After the opening statement by the city of Parma, Battaia 

requested a continuance to prepare because he had not expected to defend 

himself without an attorney. The trial court refused and trial continued. At 

its conclusion, the trial court found Battaia guilty of two counts of disorderly 

conduct and one count of criminal damaging. The court immediately 

imposed two consecutive 30-day jail sentences in addition to a suspended jail 

term of 90 days. The court also imposed a $1,000 fine, costs, and two years 

of community control. Battaia moved for a stay of execution, but the court 

denied it, and Battaia was immediately taken into custody. 

{¶ 7} Battaia then appealed assigning three errors. 

II. Law and Analysis 

A. Right to Counsel

{¶ 8} Battaia first argues that “[t]he trial court erred by failing to advise 

[him] of the consequences of proceeding to trial pro se and failed to comply 

with Criminal Rule 44(B) and (C).” 

{¶ 9} Crim.R. 44(B) and (C) provide: 

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[; and 

this] waiver of counsel shall be in open court and the advice and 

waiver shall be recorded as provided in Rule 22 * * *. 

{¶ 10} This court has previously set forth the appropriate standard for 

reviewing the present claim in State v. Richards, 8th Dist. No. 78457, 2001 

WL 1134880, *1-2 (Sept. 20, 2001): 

It is axiomatic that a criminal defendant has a right to counsel 

pursuant to the Sixth and Fourteenth Amendments to the United 

States Constitution and Section 10, Article I of the Ohio 

Constitution. Moreover, the Sixth Amendment “* * * guarantees 

that a defendant * * * has an independent constitutional right to 

self-representation.” State v. Gibson (1976), 45 Ohio St.2d 366, 

[345 N.E.2d 399,] paragraph one of the syllabus, citing Faretta v. 

California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. 

To effect a valid waiver of the right to counsel, it is necessary that 

the trial court “make sufficient inquiry to determine whether 

defendant fully understands and intelligently relinquishes that 

right.” Id. at paragraph two of the syllabus. “Before concluding 

there has been a waiver, the court must be satisfied that the 

defendant made an intelligent and voluntary waiver with the 

knowledge that he will have to represent himself and that there 

are dangers in self-representation.” State v. Ebersole (1995), 107 

Ohio App.3d 288, 293[, 668 N.E.2d 934]. 

{¶ 11} And in State v. Hughley, 8th Dist. Nos. 92588 and 93070, 

2009-Ohio-5824, 2009 WL 3648469, *7, we held: 

Although there is no prescribed colloquy in which the trial court 

and a pro se defendant must engage before a defendant may 

waive his right to counsel, the court must ensure that the 

defendant is voluntarily electing to proceed pro se and that the 

defendant is knowingly, intelligently, and voluntarily waiving the 

right to counsel. Hughley, citing State v. Martin, 8th Dist. No. 

80198, 2003-Ohio-1499, 2003 WL 1561530, citing State v. 
Jackson, 145 Ohio App.3d 223, 227, 762 N.E.2d 438 (8th Dist. 

2001). 

{¶ 12} When determining the sufficiency of the trial court’s advisement, 

we have recently reaffirmed the use of the test set forth in Von Moltke v. 

Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309 (1948). State v. Birinyi, 

 8th Dist. Nos. 95680 and 95681, 2011-Ohio-6257, 2011 WL 6151478, *3. 

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. Von Moltke, 332 U.S. at 724. 

Here, the trial court’s colloquy with Battaia is as follows: 

[Battaia’s attorney]: Your Honor, if I may advise the court of some 

information I just learned today, my client apparently has filed a 

complaint [against me]. 

* * * 

[The Court]: You filed a complaint against your attorney? 

[Battaia]: Yes, sir. Yes. 

[The Court]: But you still want him to represent you? 

[Battaia]: That’s why I was hoping I would get here early enough, 

that I would have time before the case for this to happen. But 

what I’m trying to say is I asked my attorney to perform a request 

for discovery, since my first meeting with him, on October 14th, 

2010, for him to locate the recordings of the 9-1-1 phone calls, as 

well as booking room tapes of my arrest, for it can show my 

demeanor or whatever. But at the same time, the 9-1-1 calls are 

public record, and I was able to get those, but they weren’t given 

through requests for discovery — which they should be, by law. 

And I have those laws with me, if the Court will be patient. 
And I did attempt to get the booking room tapes, but those are 

being held by public records, that only through discovery will 

those be given to us for viewing purposes. So therefore, I have 

not been allowed to get copies of those, for my own, to get. So 

therefore, since those are being held, they should be part of the — 

sorry sir, I just need water — those are being held, as for 

discovery. 

And I have not had time to think about it, and I have just come 

across this in the past couple weeks. And I have been asking 

and asking my attorney and I trusted in him to do these things 

for me. And, your Honor, I’m not sure if I should allow my public 

defender, Jim, to work on my behalf, for I believe there are some 

instances where he didn’t work on my behalf. And that’s some of 

what I had to say, but I have all the facts to back it up. 

* * * 

[The Court]: You need to make a decision, if you want [your 

attorney] to represent you or not. 

[Battaia]: May I ask, if [my attorney] doesn’t represent me, how 

am I supposed to — I don’t understand. 

[The Court]: Your trial is today. It’s here and now. You were 

granted a court appointed attorney. You made the decision, 

you’re an adult. You made the decision to file a complaint 

against your attorney, and to record conversations and alienate 

your attorney — if he’s in fact alienated. I don’t know, I would 

be if I was your attorney — you made the decision. 

Now, being over 18 you’re going to make a decision. The person 

that you, it seems, intentionally tried to alienate, do you want 

him to represent you? Or do you want to dismiss him, and 

represent yourself at this time? 

* * * 

[Battaia]: I would not like [my attorney] to represent me any 

longer. 
[The Court]: My bailiff, Cindy, is going to give you a waiver of 

counsel. Like I said, you were granted an attorney, appointed 

counsel, you had an opportunity, and now you have released your 

counsel. 

{¶ 13} Battaia then signed and dated a waiver of counsel, and the trial 

court stated, “All right. You now represent yourself. This is a knowing, 

voluntary waiver of counsel. We’re ready to proceed.” 

{¶ 14} The record is devoid of any meaningful colloquy discussing the 

rights given up by waiving counsel. A talismanic statement by the court that 

the waiver is valid does not make it so. There is no discussion of the 

consequences of waiving counsel, the charges against him, or possible 

defenses. It was not Battaia’s intention, prior to the day of trial, to waive 

that right. The trial court gave Battaia the ultimatum of going to trial with 

an attorney he had no faith in and had undermined his relationship with1 or 

representing himself. There is nothing in the record that his decision to 

forego representation was knowing or voluntary. Gibson, 45 Ohio St.2d 366, 

at paragraph two of the syllabus (“In order to establish an effective waiver of 

right to counsel, the trial court must make sufficient inquiry to determine 

whether defendant fully understands and intelligently relinquishes that 

right.”). See also Richards, 2001 WL 1134880. 

 1 In addition to filing a grievance, Battaia had apparently secretly tape 

recorded every meeting he had with his attorney. 
{¶ 15} Therefore, Battaia’s first assignment of error is sustained. This 

holding renders Battaia’s other two assigned errors moot, and they will not be 

addressed.2

III. Conclusion

{¶ 16} The trial court erred when it accepted Battaia’s waiver of counsel 

without any meaningful colloquy discussing that decision and ensuring that 

the wavier was made knowingly, intelligently, and voluntarily. Therefore, 

Battaia’s convictions must be reversed and a new trial ordered. 

{¶ 17} This cause is reversed and remanded to the lower court for 

further proceedings consistent with this opinion. 

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

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing 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. 

 2 These errors state: “The trial court’s denial of Appellant’s request to 

continue the trial and the Trial Court forcing Appellant to proceed to trial pro se 

denied Appellant his right to effective assistance of counsel guaranteed by Article I, 

Section 10 of the Ohio Constitution and the Sixth and Fourteenth Amendments to 

the United States Constitution[; and] Appellant was denied due process and his 

constitutionally guaranteed right to effective assistance of counsel.” 
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE 

SEAN C. GALLAGHER, J., and 

EILEEN A. GALLAGHER, J., CONCUR