[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. Delane y , 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: Ma y 21, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellan t NATALIA S. HARRIS GLORIA L. SMITH Assistant Delaware Cit y Prosecutor Gloria L. Smith Attorne y & Delaware Cit y Prosecutor’s Office Counselor at Law, LLC 70 N. Union Stree t 670 Meridian Wa y , #188 Delaware, Ohio 43015 W esterville, Ohio 43082Delaware Count y , 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 s tate of Ohio. STATEMENT OF THE CASE 1 {¶2} On May 9, 2019, a complaint was filed in the Delaware Municipal Court charging Appellant with one count of criminal trespass in viola tion of R.C. 2911.21(A)(1). The complaint stated Appellant entered premises belonging to he r ex-husband, and walked around the outside of the house looking in windows and t aking photographs of the interior of the home. {¶3} On August 13, 2019, Appellant appeared before the court with co unsel, expecting to proceed to trial. The prosecutor moved to continu e the case because the investigating officer who was expected to testify was on the sc ene of a serious accident, and therefore unavailable. Appellant had no objection to the c ontinuance. {¶4} Counsel for Appellant then informed the court Appellant wanted to waive counsel and proceed pro se. The court allowed Appellant to proc eed 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 paralega l, but if she had any questions she should ask her standby counsel, who was seated wi th Appellant at counsel table, because the court could not provide her with legal advic e.

1 A full rendition of the facts is unnecessary for our resolutio n of this appeal.Delaware Count y , Case No. 19 CAC 09051 3 {¶6} Following trial, Appellant was convicted as charged and sentenc ed to thirty days in jail, fined $225, and placed on community control for o ne 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 sent ence 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 Count y , 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 i s dispositive of the appeal. Appellant argues the record does not demonstrate s he made a knowing, intelligent, and voluntary waiver of counsel. We agree. {¶9} The Sixth Amendment to the United States Constitution and Secti on 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 intelli gently relinquishes that right.” State v. Gibson , 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph two of th e syllabus. The defendant must make an intelligent and voluntary waiver with the knowledge he will have to represent himself, and the dangers in herent in self-Delaware Count y , 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 w aiver of fundamental constitutional rights, waiver of counsel must affir matively 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 rec ord 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 in quiry by the trial court into a waiver of counsel: To be valid such waiver must be made with an apprehension of t he nature of the charges, the statutory offenses included within t hem, the range of allowable punishments thereunder, possible defenses to the c harges and circumstances in mitigation thereof, and all other facts essent ial to a broad understanding of the whole matter. A judge can make certain tha t an accused's professed waiver of counsel is understandingly and wi sely madeDelaware Count y , Case No. 19 CAC 09051 6 only from a penetrating and comprehensive examination of all th e 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 con cerning 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 ad ult, this is a decision you can make on your own. But, you know, so metimes people think they understand rules of criminal procedure, rules of evidence. Are you still working at a law firm?Delaware Count y , 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 Appella nt’s decision to waive counsel was made with “apprehension of the nature of t he charges, the statutory offenses included within them, the range of allowable punishmen ts 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 requ ired 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 p aralegal at a law firm to demonstrate the validity of the waiver, the recor d does not affirmatively demonstrate her employment in and of itself gave her the unders tanding 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 Count y , 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 th is case is remanded for further proceedings according to law and consisten t with this opinion.

By: Hoffman, P.J. Wise, John, J. and Delaney, J. concur