[Cite as State v. Bernard , 2020-Ohio-5545.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals No. WD-19-072 Appellee Trial Court No. 2016CR066

v. James Jacob Bernard DECISION AND JUDGMENT Appellant Decided: December 4, 2020

* * * * * Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Michael H. Stahl, for appellant.

* * * * * OSOWIK, J. {¶ 1} Appellant, James Jacob Bernard, appeals the August 21, 2019 jud gment of the Wood County Court of Common Pleas finding him in violation of the terms of his previously imposed terms of community control and sentencing hi m to an aggregate term of eight years in prison.2. {¶ 2} On June 27, 2017, appellant entered guilty pleas to one count o f engaging in a pattern of corrupt activity, in violation of R.C. 2923.32(A)( 1), (B)(1), a felony of the first degree; three counts of aggravated theft, in violation of R.C. 2913.02(A)(1), (B)(1), each count being classified as a felony of the third degree; an d five counts of money laundering, in violation of R.C. 1315.55(A)(3)(C), each being a felony of the third degree. {¶ 3} He was subsequently sentenced to four years of community contro l and ordered to pay restitution. {¶ 4} On July 31, 2019, appellant stipulated to violating the terms o f his community control. On August 20, 2019, he was then sentenced t o an aggregate term of eight years in prison for these violations. {¶ 5} Appellant presents a single assignment of error: May a Trial Court accept a Defendant’s stipulation and waiver o f a hearing regarding a Community Control Violation where the Court has not advised the Defendant of the right to retained counsel under Oh io R. of Crim. Pro. 32, and where the Defendant requested a continuance to hire

counsel? {¶ 6} It is helpful to point out the history of counsel associated wi th this case since its inception. On February 4, 2016, the record of the clerk re flects that appellant had retained counsel Sam Eidy. On August 1, 2016, Mr. Eidy was gra nted leave to withdraw and appellant was instructed by the court to seek counsel throu gh the Wood County3. Public Defender’s Office. On September 1, 2016, William V. Ste phenson of the Wood County Public Defender’s Office was granted leave to withdraw d ue to a conflict with a potential codefendant. On September 2, 2016, attorney Scott Co on entered his appearance, presumably as appointed counsel. Mr. Coon represen ted appellant through discovery, motion practice as well as pretrial proceedings. On June 27, 2017, Mr. Coon was present and represented appellant at the plea hearing and s entencing that occurred on September 8, 2017. On December 20, 2017, Patrick T. Murphy ent ered his appearance on behalf of appellant and filed a motion for stay and modifica tion of sentence which was subsequently denied on December 21, 2017. {¶ 7} On August 24, 2018, the court issued a warrant for appellant’s arrest. On August 27, 2018, the state filed a petition for revocation of c ommunity control. Ultimately, appellant was apprehended by the Wood County Sherif f on July 18, 2019. On July 23, 2019, appellant was brought before the court for a bond hearing on the revocation petition. He was present with appointed counsel Sco tt Coon and bond was set at $100,000. The matter was continued to July 31, 2019. The f ollowing exchange then took place. MR. COON: Your Honor, my client would ask the Court to grant him a short continuance so he can engage private counsel to rep resent him

on these matters. THE COURT: You’re appointed counsel, is that correct?

MR. COON: I am.4. THE COURT: My concern, Mr. Coon – and I will address your client – but, we’re before the Court because not only has he ab sconded, but he’s not been making restitution, as required. If he can’t mak e restitution, how is he going to hire private counsel? MR. COON: I haven’t asked him that question, Judge. THE COURT: Well, I am asking the question. MR. COON: I think that he is going to ask his family to help h im. THE DEFENDANT: Judge Mayberry, can I speak, please? THE COURT: You can stand up. Yes. THE DEFENDANT: Okay, Thank you.

THE COURT: Go ahead. {¶ 8} Appellant then went on to describe his relationship with his fa mily members, his living conditions and pled for reinstatement of his O.R. bo nd. {¶ 9} Ultimately, the colloquy continued:

THE DEFENDANT: And I understand that I made a mistake. THE COURT: I don’t want a used car salesman telling me that “I ’ll make you a deal” because that’s not happening. I’m the one tha t’s going to make the deal. But, wasting money on an attorney when you’ve a bsconded for a year rather than paying these people back, is not making me happier, it’s making me less happy. It’s making me feel that you have n o sincere effort or desire or remorse for what you did and you don’t want to pay these5. people back, so I don’t want to throw good money after bad. If you have money, it needs to go to these people. THE DEFENDANT: That’s fair. I will do that. I’ll keep Coon – Mr. Coon – as my attorney. {¶ 10} Appellant admitted to the community control violation and the c ase was then continued to August 20, 2019, for disposition. We note th at when the case was called, neither appellant nor Mr. Coon renewed a request for an other continuance for retained counsel and there was no objection to proceeding with disposition on that date. {¶ 11} It is undisputed that the trial court failed to comply with the unequivocal language of Crim.R. 32.3(B) which states, in relevant part: (B) Counsel. The defendant shall have the right to be represen ted by

retained counsel and shall so be advised. {¶ 12} Appellee argues that the dialogue with the trial court evidence s a waiver of appellant’s right to retained counsel, citing State v. Ingrami , 8th Dist. Cuyahoga No. 84925, 2005-Ohio-1967. {¶ 13} However, the facts are different in this case. In Ingram , appellant was facing a violation of an intervention program. The Ingram court distinguished Crim.R. 32.3(B) community control revocation proceedings from violations of in tervention in lieu of conviction programs which are governed by statute, R.C. 2951 .041. That statute does not require the trial court to advise the offender that he is e ntitled to retained counsel.6. Nevertheless, Ingram also held that the right to retained counsel could be waived (although the court referenced Crim.R. 32.2(B), which does not exist). {¶ 14} Under Crim.R. 32.3(B), advisement by the trial court of the rig ht to retained counsel at a community control violation hearing is a nonconstitutional right. We find that appellant asserted his right to retained counsel w ithout such advisement. However, after engaging in a colloquy with the court, not only did he waive the right to such an advisement, he also waived his right to retained counse l and voluntarily chose to continue to be represented by his appointed counsel. {¶ 15} Therefore, we find appellant’s sole assignment of error not wel l-taken and

denied. {¶ 16} Based on the foregoing, the judgment of the W ood C ounty Court of Common Pleas is affirmed. Appellant is ordered to pay the cost s of this appeal pursuant to App.R. 24. Judgment affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.7. State v. Bernard C.A. No. WD-19-072

Mark L. Pietrykowski, J. ________________________

_______ JUDGE Thomas J. Osowik, J.

_______________________________ Gene A. Zmuda, P.J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.