[Cite as State v. Ngaka, 2020-Ohio-3106.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO JUDGES: 

 Hon. William B. Hoffman, P.J. 

 Plaintiff-Appellee Hon. John W. Wise, J. 

 Hon. Patricia A. Delaney, J. 

-vs- 

 Case No. 19 CAC 09051 

FREDERIQUE K. NGAKA 

 

 Defendant-Appellant O P I N IO N 

 

CHARACTER OF PROCEEDINGS: Appeal from the Delaware County 

Municipal Court, Case No.19CRB0178 

 

JUDGMENT: Reversed and Remanded 

 

DATE OF JUDGMENT ENTRY: May 21, 2020 

 

APPEARANCES: 

 

For Plaintiff-Appellee For Defendant-Appellant

 

NATALIA S. HARRIS GLORIA L. SMITH 

Assistant Delaware City Prosecutor Gloria L. Smith Attorney & 

Delaware City Prosecutor’s Office Counselor at Law, LLC 

70 N. Union Street 670 Meridian Way, #188 

Delaware, Ohio 43015 Westerville, Ohio 43082 

 

 
Delaware County, Case No. 19 CAC 09051 2 

Hoffman, P.J. 

{¶1} Appellant Frederique Ngaka appeals the judgment entered by the Delaware 

Municipal Court convicting her of criminal trespass (R.C. 2911.21) following a bench trial, 

and sentencing her to 30 days incarceration. Appellee is the state of Ohio. 

STATEMENT OF THE CASE1

{¶2} On May 9, 2019, a complaint was filed in the Delaware Municipal Court 

charging Appellant with one count of criminal trespass in violation of R.C. 2911.21(A)(1). 

The complaint stated Appellant entered premises belonging to her ex-husband, and 

walked around the outside of the house looking in windows and taking photographs of the 

interior of the home. 

{¶3} On August 13, 2019, Appellant appeared before the court with counsel, 

expecting to proceed to trial. The prosecutor moved to continue the case because the 

investigating officer who was expected to testify was on the scene of a serious accident, 

and therefore unavailable. Appellant had no objection to the continuance. 

{¶4} Counsel for Appellant then informed the court Appellant wanted to waive 

counsel and proceed pro se. The court allowed Appellant to proceed pro se with standby 

counsel, and set a new trial date. 

{¶5} The case proceeded to trial on August 30, 2019, with Appellant representing 

herself. The court noted before trial Appellant was a paralegal, but if she had any 

questions she should ask her standby counsel, who was seated with Appellant at counsel 

table, because the court could not provide her with legal advice. 

 

1 A full rendition of the facts is unnecessary for our resolution of this appeal. 
Delaware County, Case No. 19 CAC 09051 3 

{¶6} Following trial, Appellant was convicted as charged and sentenced to thirty 

days in jail, fined $225, and placed on community control for one year. Her driver’s license 

was suspended for 30 days, and she was ordered to stay 500 feet from the former marital 

residence. 

{¶7} It is from the August 30, 2019, judgment of conviction and sentence 

Appellant prosecutes this appeal, assigning as error: 

 I. THE DEFENDANT WAS DENIED THE RIGHT TO PRESENT A 

DEFENSE AND TO CONFRONT WITNESSES AGAINST HER 

PURSUANT TO THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS 

OF THE US [SIC] CONSTITUTION AND ARTICLE I OF THE OHIO 

CONSTITUTION. 

 II. APPELLANT WAS DENIED THE RIGHT TO EQUAL 

PROTECTION PURSUANT TO THE FIFTH AND FOURTEENTH 

AMENDMENTS OF THE US [SIC] CONSTITUTION AND ARTICLE I, 

SECTION 2 OF THE OHIO CONSTITUTION. 

 III. THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL 

PURSUANT TO THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS 

OF THE US [SIC] CONSTITUTION AND ARTICLE I OF THE OHIO 

CONSTITUTION. 

 IV. THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE 

ASSISTANCE OF STANDBY COUNSEL PURSUANT TO THE FIFTH, 
Delaware County, Case No. 19 CAC 09051 4 

SIXTH AND FOURTEENTH AMENDMENTS OF THE US [SIC] 

CONSTITUTION AND ARTICLE I OF THE OHIO CONSTITUTION. 

 V. THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT 

OF THE EVIDENCE. 

 VI. THE TRIAL COURT ABUSED ITS DISCRETION BY THE 

SENTENCE IT IMPOSED AGAINST THE DEFENDANT. 

III. 

{¶8} We address Appellant’s third assignment of error first, as it is dispositive of 

the appeal. Appellant argues the record does not demonstrate she made a knowing, 

intelligent, and voluntary waiver of counsel. We agree. 

{¶9} The Sixth Amendment to the United States Constitution and Section 10, 

Article I of the Ohio Constitution provide a criminal defendant has a right to counsel. 

However, a criminal defendant also has the constitutional right to waive counsel and to 

represent himself or herself at trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 

L.Ed.2d 562 (1975). In such a situation, “the Constitution * * * require[s] that any waiver 

of the right to counsel be knowing, voluntary, and intelligent * * *.” Iowa v. Tovar, 541 U.S. 

77, 87-88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), Crim.R. 44(A). “In order to establish 

an effective waiver of [the] right to counsel, the trial court must make sufficient inquiry to 

determine whether [the] defendant fully understands and intelligently relinquishes that 

right.” State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph two of the 

syllabus. The defendant must make an intelligent and voluntary waiver with the 

knowledge he will have to represent himself, and the dangers inherent in self-
Delaware County, Case No. 19 CAC 09051 5 

representation. State v. Ebersole, 107 Ohio App.3d 288, 293, 668 N.E.2d 934 (3rd Dist. 

Hancock 1995), citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 

(1975). 

{¶10} Because courts indulge every reasonable presumption against a waiver of 

fundamental constitutional rights, waiver of counsel must affirmatively appear on the 

record. City of Garfield Hts. v. Brewer, 17 Ohio App.3d 216, 217, 479 N.E.2d 309, 311–

12 (8th Dist. Cuyahoga 1984). A knowing and intelligent waiver will not be presumed from 

a silent record. Id., citing Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 

L.Ed.2d 70 (1962). 

{¶11} This Court has previously discussed what must appear in the record to 

demonstrate a valid waiver of counsel: 

 In Gibson, supra, the Ohio Supreme Court applied the test set forth 

in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), 

which established the requirements for a sufficient pretrial inquiry by the trial 

court into a waiver of counsel: 

 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. A judge can make certain that an 

accused's professed waiver of counsel is understandingly and wisely made 
Delaware County, Case No. 19 CAC 09051 6 

only from a penetrating and comprehensive examination of all the 

circumstances under which such a plea is tendered. 

State v. Gibson, 45 Ohio St.2d 366, 377, 345 N.E.2d 399 (1976). 

{¶12} State v. Newman, 5th Dist. Stark No. 2017CA00219, 2018-Ohio-3253, ¶¶ 

17-18. 

{¶13} The following colloquy is the only discussion on the record concerning 

Appellant’s decision to waive counsel: 

 THE COURT: Now, is there another issue we need to take up, Mr. 

Cramer? 

 MR. CRAMER: There is, Your Honor. My client has informed me 

she would like to waive counsel and proceed pro se. I know at the bench 

you mentioned me staying on as standby counsel, and I mentioned that to 

my client as well, and she seems to be okay with that. 

 THE COURT: Okay. 

 MR. CRAMER: And I don’t have any problem with it either. 

 THE COURT: Okay. Miss Ngaka, is that what you want to do? 

 MS. NGAKA: Yes, Your Honor. 

 THE COURT: Okay. You know, certainly, you know, you’re an adult, 

this is a decision you can make on your own. But, you know, sometimes 

people think they understand rules of criminal procedure, rules of evidence. 

Are you still working at a law firm? 
Delaware County, Case No. 19 CAC 09051 7 

 MS. NGAKA: I am, Your Honor. 

 THE COURT: Okay. So I know you have some knowledge. But it’s 

different when you’re the client. 

{¶14} Tr. (8/13/19) 4-5. 

{¶15} We find this colloquy does not sufficiently demonstrate Appellant’s decision 

to waive counsel was made with “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” as required by the United States 

Supreme Court in Von Moltke, supra, and the Ohio Supreme Court in Gibson, supra. 

While the record suggests a discussion may have been held with counsel and the court 

off the record, a valid waiver of counsel must be on the record, and cannot be presumed 

from a silent record. 

{¶16} While the State relies heavily on Appellant’s employment as a paralegal at 

a law firm to demonstrate the validity of the waiver, the record does not affirmatively 

demonstrate her employment in and of itself gave her the understanding required for her 

waiver of counsel to be knowing and intelligent. We find the nature of her employment 

does not relieve the trial court of its constitutional duty to undertake a “penetrating and 

comprehensive examination of all the circumstances” under which the decision to waive 

counsel was made. 

{¶17} The third assignment of error is sustained. 
Delaware County, Case No. 19 CAC 09051 8 

{¶18} Appellant’s remaining assignments of error are rendered moot by our 

decision on her third assignment of error. 

{¶19} The judgment of the Delaware Municipal Court is reversed and this case is 

remanded for further proceedings according to law and consistent with this opinion. 

By: Hoffman, P.J. 

Wise, John, J. and 

Delaney, J. concur