[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 judgment 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 him to an aggregate term 

of eight years in prison. 
2.

{¶ 2} On June 27, 2017, appellant entered guilty pleas to one count of 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; and 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 control and 

ordered to pay restitution. 

{¶ 4} On July 31, 2019, appellant stipulated to violating the terms of his 

community control. On August 20, 2019, he was then sentenced to 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 of a 

hearing regarding a Community Control Violation where the Court has not 

advised the Defendant of the right to retained counsel under Ohio 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 with this case since 

its inception. On February 4, 2016, the record of the clerk reflects that appellant had 

retained counsel Sam Eidy. On August 1, 2016, Mr. Eidy was granted leave to withdraw 

and appellant was instructed by the court to seek counsel through the Wood County 
3.

Public Defender’s Office. On September 1, 2016, William V. Stephenson of the Wood 

County Public Defender’s Office was granted leave to withdraw due to a conflict with a 

potential codefendant. On September 2, 2016, attorney Scott Coon entered his 

appearance, presumably as appointed counsel. Mr. Coon represented 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 sentencing that occurred on 

September 8, 2017. On December 20, 2017, Patrick T. Murphy entered his appearance 

on behalf of appellant and filed a motion for stay and modification 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 community control. 

Ultimately, appellant was apprehended by the Wood County Sheriff 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 Scott Coon and bond was set 

at $100,000. The matter was continued to July 31, 2019. The following 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 represent 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 absconded, but 

he’s not been making restitution, as required. If he can’t make 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 him. 

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 family members, 

his living conditions and pled for reinstatement of his O.R. bond. 

{¶ 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 that’s going to 

make the deal. But, wasting money on an attorney when you’ve absconded 

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 no sincere 

effort or desire or remorse for what you did and you don’t want to pay these 
5.

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 case was 

then continued to August 20, 2019, for disposition. We note that when the case was 

called, neither appellant nor Mr. Coon renewed a request for another 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 represented by 

retained counsel and shall so be advised. 

{¶ 12} Appellee argues that the dialogue with the trial court evidences 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 intervention 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 entitled 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 right to 

retained counsel at a community control violation hearing is a nonconstitutional right. 

We find that appellant asserted his right to retained counsel without 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 counsel and voluntarily chose to 

continue to be represented by his appointed counsel. 

{¶ 15} Therefore, we find appellant’s sole assignment of error not well-taken and 

denied. 

{¶ 16} Based on the foregoing, the judgment of the Wood County Court of 

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant 

to App.R. 24. 

Judgment affirmed. 

A certified copy of this entry shall constitute the mandate pursuant 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 Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.