[Cite as State v. Wills, 2011-Ohio-5580.]

COURT OF APPEALS 

 MORROW COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

THE STATE OF OHIO, : JUDGES: 

 : 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee, : Hon. William B. Hoffman, J. 

 : Hon. Patricia A. Delaney, J. 

v. : 

 : Case No. 2010 CA 0013 

MICHELLE WILLS, : 

 : 

 : 

 Defendant-Appellant. : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Morrow County Municipal 

Court Case No. 2010-CRB-2895 

 

JUDGMENT: REVERSED AND REMANDED 

DATE OF JUDGMENT ENTRY: October 25, 2011 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

CHARLES HOWLAND MARK V. MINISTER 0051924 

Morrow County Prosecutor P.O. Box 333 

STEVEN M. PHILLIPS 0051816 

48 East High Street 

 11 South Liberty Street 

Marengo, Ohio 43334 

Mount Gilead, Ohio 43338 

 
[Cite as State v. Wills, 2011-Ohio-5580.]

Delaney, J. 

{¶ 1} Defendant-Appellant, Michelle Wills, appeals the judgment of the Morrow 

County Municipal Court, finding her guilty of one count of domestic violence, in violation 

of R.C. 2919.25(A), a misdemeanor of the first degree, and holding her in contempt of 

court. The State of Ohio waived its right to file a brief in this matter. 

SUBSTANTIVE AND PROCEDURAL FACTS 

{¶ 2} On April 26, 2010, Appellant was in a dispute with her live-in boyfriend, 

Carl Hudson. Appellant lived with Hudson and his mother, Barbara Hudson, at the time. 

{¶ 3} On the evening of the 26th, Appellant and Hudson drove in Appellant’s 

truck to Coaches’ Bar in Centerburg, Ohio. While there, both parties consumed alcohol 

and then they left to go to another bar in Fulton, Ohio. As the two were getting ready to 

get into Appellant’s truck, they got into a verbal dispute as to who should drive because 

Hudson felt that Appellant was too intoxicated to drive. 

{¶ 4} Appellant initially drove the truck towards Hudson’s house until she ran 

the truck into a ditch. After getting the car out of the ditch, Appellant continued to drive 

to Hudson’s house and yelled at him while in the car. When the two arrived at 

Hudson’s, he took the truck keys out of the ignition and stuck them in his pocket. 

Appellant chased him into the house, yelling obscenities at him. She demanded that he 

give her the keys back and was acting belligerent. 

{¶ 5} She then called her dog, a Boxer, to attack Hudson and she began hitting 

Hudson in the face. Hudson was able to get the dog to disengage, but Appellant kept 

hitting him. Mrs. Hudson witnessed the assault and confirmed that, as a result of the 
Morrow County, Case No. 2010 CA 0013 3 

altercation, Hudson obtained multiple bruises, two black eyes, a bloody nose and a 

busted lip, as well as scratches from Appellant’s keys and fingernails. 

{¶ 6} Appellant took her keys back from Hudson and left the residence. Prior to 

leaving, she threatened to have Hudson killed. Hudson called the Morrow County 

Sheriff’s office and made a report of the assault. Deputy Rigney filed a complaint for 

one count of domestic violence against Appellant on April 27, 2010. 

{¶ 7} Appellant was arraigned on May 20, 2010, and entered a not guilty plea 

and waived her right to a speedy trial. She advised the court that she would retain her 

own attorney. Later, she filled out an affidavit of indigency and requested court 

appointed counsel. On July 29, 2010, Appellant appeared before the trial court again, 

this time for a bench trial on the charge against her. She asked for court appointed 

counsel. The trial court inquired as to what change in circumstances precipitated the 

request for court appointed counsel. Appellant stated that she lost her income, which 

had previously been $4.00 an hour plus tips because she worked as a waitress. She 

stated that she was behind on her truck payment and her motorcycle payment and that 

she was “barely” getting by. The court asked why she lost her job and she stated that it 

was a “mutual agreement” that she leave the job because “the money wasn’t worth the 

drama.” 

{¶ 8} The trial court, in inquiring as to whether Appellant was indigent, 

determined that based upon her assets, a $30,000.00 truck, a $10,000 motorcycle, and 

the fact that she was residing with her boyfriend’s parents and not having to pay rent, 

that she was not indigent. The court also noted that Appellant was an able-bodied 
Morrow County, Case No. 2010 CA 0013 4 

individual who had voluntarily given up her paying job and that the taxpayers should not 

have to pay for an attorney for her for those reasons. 

{¶ 9} A continuance was granted until September 2, 2010, so that Appellant 

could try to obtain her own counsel. However, prior to the start of trial on that day, the 

court noted that Appellant was present, not represented by counsel, and “going to go 

pro se on this.” The court explained that Appellant would be presumed to know the rules 

of court “just like a lawyer” if she chose to represent herself. He explained the trial 

procedure regarding opening statements, direct and cross examinations, admitting 

evidence, and closing arguments. However, there is no written or oral waiver of counsel 

in the record. 

{¶ 10} The case proceeded to trial at that time, and the State called Hudson, his 

mother, and Trooper Russell Rigney. Appellant testified on her own behalf and also 

called her son to testify. 

{¶ 11} After trial, the court convicted Appellant as charged in the complaint. He 

also held her in contempt of court for being argumentative on multiple occasions with 

the court and for failing to listen to the court regarding speaking out of turn. Appellant 

was sentenced to sixty days in jail, with fifty days suspended, on the domestic violence 

conviction and five additional days for the contempt finding. 
Morrow County, Case No. 2010 CA 0013 5 

{¶ 12} Appellant raises what appear to be four Assignments of Error, though they 

are not framed as such: 

{¶ 13} “I. DOES THE FIFTH, SIXTH AMENDMENTS TO THE UNITES [SIC] 

STATES CONSTITUTION AND STATE STATUTE OHIO CRIMINAL RULE 44, 

PROVIDE A FUNDAMENTAL RIGHT TO COUNSEL WITH IS ESSENTIAL TO A FAIR 

TRIAL? 

{¶ 14} “II. DID THE LOWER COURT CONDUCT A SUFFICIENT INQUIRY INTO 

WHETHER DEFENDANT WAS INDIGENT AND THEREFORE ELIGIBLE FOR COURT 

APPOINTED COUNSEL? 

{¶ 15} “III. DID THE STATE ESTABLISH A VALID WAIVER OF COUNSEL? 

{¶ 16} “IV. DID THE PRESIDING JUDGE ABUSE HIS DISCRETION AND 

THERE BY [SIC] DENY DEFENDANT HER CONSTITUTIONAL RIGHT TO 

COUNSEL.” 

I, II, III, & IV 

{¶ 17} All of Appellant’s arguments focus on the trial court’s refusal to grant 

Appellant court appointed counsel and the trial court’s failure to properly obtain a waiver 

of counsel. 

{¶ 18} We begin our analysis with the issue of waiver of counsel for a 

misdemeanor offense of the first degree, punishable by not more than one hundred 

eighty days. R.C. 2929.24(A)(1). 

{¶ 19} Pursuant to the Sixth and Fourteenth Amendments to the United States 

Constitution and Section 10, Article I of the Ohio Constitution, a criminal defendant has 

the right to assistance of counsel for her defense. Gideon v. Wainwright (1963), 372 
Morrow County, Case No. 2010 CA 0013 6 

U.S. 335, 83 S.Ct. 792, 9 L.Ed. 779; State v. Martin, 103 Ohio St.3d 385, 816 N.E.2d 

227, 2004-Ohio-5471, ¶ 22. 

{¶ 20} The right to counsel applies in misdemeanor cases, including cases 

involving petty offenses, that result in imprisonment. Argersinger v. Hamlin (1972), 407 

U.S. 25, 92 S.Ct. 2006, 32 L.Ed. 2d 530. Crim. R. 2 (D) defines a “petty offense” as a 

“misdemeanor other than a serious offense.” 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.” 

{¶ 21} Thus, Appellant was convicted of a petty offense, not a serious offense, 

and Crim.R. 44(B) governs the appointment of counsel. 

{¶ 22} Pursuant to Crim.R. 44(B): 

{¶ 23} “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.” 

{¶ 24} Crim.R. 44(C) further provides “waiver of counsel shall be in open court 

and the advice and waiver shall be recorded as provided in Rule 22. In additional, in 

serious offense cases the waiver shall be in writing.” 

{¶ 25} Thus, pursuant to Crim.R. 22, in petty offense cases all waivers of counsel 

shall be recorded “in shorthand, or stenotype, or by any other adequate mechanical, 

electronic or video recording device.” 
Morrow County, Case No. 2010 CA 0013 7 

{¶ 26} In this case, there is simply no indication on the record that Appellant 

waived her right to counsel, nor is there any indication the court informed Appellant of 

her constitutional rights, including her right to counsel, nor engaged in a dialogue with 

Appellant to inform her of the nature of the charged offense, the range of possible 

punishments, any possible defenses, and the dangers and disadvantages of selfrepresentation. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227. 

In sum, the record is devoid of evidence that Appellant had knowingly, intelligently, and 

voluntarily waived her right to counsel. 

{¶ 27} Moreover, we find that Appellant’s affidavit of indigency coupled with her 

explanation of her finances to the trial court suffice to show that she could not afford her 

own attorney. In State v. Tymico (1975), 42 Ohio St.2d 39, 43, 325 N.E.2d 556, the 

Ohio Supreme Court instructs, at the syllabus: 

{¶ 28} “1. The right to assistance of court-appointed counsel in a criminal case 

turns upon the inability to obtain counsel. The entitlement depends, not upon whether 

the accused ought to be able to employ counsel, but whether he is in fact, ‘unable to 

employ counsel.’ 

{¶ 29} “2. A preliminary determination of indigency does not foreclose a 

redetermination of eligibility for assigned counsel when, at a subsequent stage of the 

proceeding, new information concerning the ability or inability of the accused to obtain 

counsel becomes available. 

{¶ 30} “3. It is the duty of the trial court in a criminal case to inquire fully into the 

circumstances impinging upon an accused’s claimed inability to obtain counsel and his 
Morrow County, Case No. 2010 CA 0013 8 

consequent need for assistance in employing counsel, or for the assistance of courtappointed counsel.” 

{¶ 31} At the initial appearance on May 20, 2010, Appellant was employed and 

she stated her desire to obtain counsel at her expense. On July 29, 2010, she filed a 

financial disclosure and affidavit of indigency stating she had no income and listed a 

truck and motorcycle as assets, but a total loan balance of $33,500. The trial court 

denied court-appointed counsel because Appellant “voluntarily quit job” and “has too 

many toys.” 

{¶ 32} The Ohio Supreme Court in Tymico stated “[w]hen an accused is 

financially able, in whole or part, to obtain the assistance of counsel, but is unable to do 

so for whatever reason, appointed counsel must be provided. In such a case, 

appropriate arrangements may subsequently be made to recompense appointed 

counsel for legal services rendered.” Id. at 45. (Emphasis added). 

{¶ 33} In this matter, Appellant had no monthly income, no employment, and past 

due loan balances on encumbered vehicles. 

{¶ 34} We find the trial court's failure to ensure that Appellant was adequately 

represented by counsel violated the mandate of Argersinger and Tymico, supra. 

Accordingly, this Court must reverse the trial court and remand this matter for a redetermination of indigency and for a new trial. 
Morrow County, Case No. 2010 CA 0013 9 

{¶ 35} Appellant’s assignments of error are sustained. Therefore, the trial court’s 

judgment is reversed and the cause is remanded for further proceedings consistent with 

this Opinion. 

By: Delaney, J. 

Gwin, P.J. and 

Hoffman, J. concur. 

HON. PATRICIA A. DELANEY 

HON. W. SCOTT GWIN 

HON. WILLIAM B. HOFFMAN 

 
[Cite as State v. Wills, 2011-Ohio-5580.]

IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

THE STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : 

 : 

 : 

v. : JUDGMENT ENTRY 

 : 

MICHELLE WILLS, : 

 : 

 Defendant-Appellant. : Case No. 2010 CA 0013 

 : 

 For the reasons stated in our accompanying Memorandum-Opinion on file, the 

judgment of the Morrow County Municipal Court is reversed and the cause is remanded 

for further proceedings. Costs assessed to Appellee. 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN