[Cite as State v. Lowe, 2016-Ohio-3423.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

HUBERT LOWE, 

 Defendant-Appellant. 

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APPEAL NO. C-150101 

TRIAL NO. B-1404135 

O P I N I O N.

 

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

Judgment Appealed From Is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: June 15, 2016 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Roger W. Kirk for Defendant-Appellant. 
OHIO FIRST DISTRICT COURT OF APPEALS

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STAUTBERG, Judge. 

{¶1} Defendant-appellant Hubert Lowe was convicted of felonious assault 

in violation of R.C. 2903.11(A)(1) and sentenced to two years’ imprisonment. He has 

timely appealed his conviction and asserted three assignments of error. After a 

review of the record, we reverse the trial court’s judgment of conviction and remand 

the cause to the trial court for further proceedings in accordance with this opinion. 

{¶2} Lowe and Shannon Wagner lived on different floors in the same 

apartment building on Sunset Avenue. On June 27, 2014, the police responded to a 

call from Wagner regarding a dispute between Lowe and her at the apartment 

building. Wagner and Lowe provided conflicting accounts of the incident. Wagner 

alleged that Lowe, without provocation, had picked her up and had “slammed” her in 

the hallway as she passed by his apartment. Lowe, however, contended that Wagner 

was an unwelcome interloper who he had to physically remove from his apartment 

after asking her several times to leave. Regardless of whose account of the incident is 

accurate, the fact is that Wagner sustained a broken arm that required surgery. A 

grand jury indicted Lowe for felonious assault, a second-degree felony. 

{¶3} Lowe was appointed trial counsel who fully participated in the pretrial 

preparation and proceedings. Prior to trial, Lowe filed several pro se motions: (1) 

motion to proceed as co-counsel, (2) motion for a bill of particulars, (3) demand for 

discovery, and (4) motion to suppress evidence. 

{¶4} On the morning of trial, the court addressed Lowe’s pro se motions. 

Lowe’s defense counsel had only recently learned of Lowe’s motion to suppress, and 

did not argue the motion. The trial court then engaged Lowe in a lengthy discussion 

about his motion to suppress, as well as several issues regarding witnesses, medical 
OHIO FIRST DISTRICT COURT OF APPEALS

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records, and Lowe’s statements to police. After discussing those issues, the trial 

court denied Lowe’s motion to suppress. 

{¶5} The trial court then addressed Lowe’s motion to proceed as co-counsel. 

The court informed Lowe that he could not act as co-counsel, and that he could 

either proceed with an attorney or proceed pro se. The trial court stated, “Do you 

want to be your own lawyer or do you want him to represent you? * * * You’re under 

the same rules and structure that the Government is.” The trial court explained to 

Lowe that he would be at a disadvantage because he was not familiar with the proper 

technique to question a witness. Furthermore, the trial court informed Lowe that it 

would not assist him or provide information about why a question was improper. 

The trial court asked Lowe whether he wanted to speak to his lawyer, and Lowe 

responded affirmatively. 

{¶6} The court took a brief recess while Lowe conferred with his counsel. 

After the recess, Lowe discussed the matter on the record with the trial court, and 

took various positions with respect to proceeding with his current counsel—opting 

first for the appointment of new counsel, and then agreeing to continue with his 

current appointed counsel for the “time being.” The trial court recessed again so 

defense counsel could discuss the matter further with Lowe. After this recess and 

discussion, Lowe informed the court that he wanted to proceed pro se. 

Subsequently, the trial court permitted Lowe’s defense counsel to withdraw. 

{¶7} Lowe chose to waive his right to a jury trial and, after an inquiry by the 

court, signed a written waiver of his right to a jury trial. Lowe was not presented 

with nor did he sign a written waiver of his right to counsel. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶8} At trial, the state put on seven witnesses, including Wagner and police 

officers assigned to the incident. Lowe cross-examined the witnesses, and testified 

on his own behalf. 

{¶9} After closing arguments, the trial court took the matter under 

submission, and subsequently found Lowe guilty of felonious assault. The trial court 

later sentenced him to two years’ imprisonment. Lowe timely appealed. 

{¶10} In his first assignment of error, Lowe contends that trial court erred 

when it permitted him to represent himself without determining whether his waiver 

of counsel was made knowingly, intelligently, and voluntarily. We agree. 

{¶11} The Sixth and Fourteenth Amendments to the United States 

Constitution guarantee a criminal defendant the right to counsel. Faretta v. 

California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A defendant 

also has the constitutional right to waive the right to counsel and represent himself at 

trial. Id. at 821-836. However, “[c]ourts are to indulge in every reasonable 

presumption against the waiver of a fundamental constitutional right, including the 

right to be represented by counsel.” (Citations omitted.) State v. Vordenberge, 148 

Ohio App.3d 488, 491, 774 N.E.2d 278 (1st Dist.2002), quoting State v. Dyer, 117 

Ohio App.3d 92, 95, 689 N.E.2d 1034 (2d Dist.1996). 

{¶12} Crim.R. 44(A) provides that in order for the defendant to waive the 

right to counsel, the waiver must be knowing, voluntary, and intelligent. This court 

has required the trial court undertake a two-part inquiry when determining whether 

a defendant has knowingly, intelligently, and voluntarily waived his right to counsel: 

“(1) whether the defendant is competent to waive the right to counsel if it has reason 

to doubt the defendant’s competency, and (2) whether the waiver is knowing and 
OHIO FIRST DISTRICT COURT OF APPEALS

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voluntary.” Vordenberge at 492; see State v. Watson, 132 Ohio App.3d 57, 63, 724 

N.E.2d 469 (8th Dist.1998). 

{¶13} In State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 

227, paragraph two of the syllabus, the Ohio Supreme Court held: 

In the case of a “serious offense” * * *, when a criminal defendant 

elects to proceed pro se, the trial court must demonstrate substantial 

compliance with Crim.R. 44(A) by making a sufficient inquiry to 

determine whether the defendant fully understood and intelligently 

relinquished his or her right to counsel. 

{¶14} There must be a candid and thorough discussion “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.” Martin at ¶ 40, quoting State v. Gibson, 45 Ohio St.2d 366, 377, 345 N.E.2d 

399 (1976). A judge must investigate as long and as thoroughly as the circumstances 

of the case demand in light of the strong presumption against the waiver of the right 

to counsel. Gibson at 377. Waiver of counsel has been described as intelligent when 

the defendant “knows what he is doing and his choice is made with eyes open.” Iowa 

v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), quoting Adams v. 

United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942). 

{¶15} The state contends that Lowe’s waiver was knowing, intelligent, and 

voluntary. It points to State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 

N.E.2d 1144, for the proposition that the trial court can presume that defense counsel 

had discussed all relevant facts of the case with Lowe prior to his waiver of counsel. 

The case before us is factually distinguishable from Johnson. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶16} Here, the record does not support the contention that Lowe knowingly, 

intelligently, and voluntarily waived his right to counsel. Although the trial court 

granted sufficient time to accommodate Lowe’s vacillating positions with respect to 

counsel, there is not enough in the record to demonstrate that Lowe knowingly, 

intelligently, and voluntarily waived his Sixth Amendment right to counsel. We do 

not presume a waiver of the right to counsel from a silent record. Vordenberge, 148 

Ohio App.3d at 491, 774 N.E.2d 278. Here, the trial court did explain the challenges 

of self-representation against an experienced prosecutor, and it pointed out that 

Lowe was facing “serious charges.” However, the trial court did not go further to 

explain the statutory offense with which Lowe was charged, the range of possible 

punishments, possible mitigating factors, the defenses to the charge, or other facts 

pertinent to the case. 

{¶17} Based on the record before us, we sustain Lowe’s first assignment of 

error. 

{¶18} In Lowe’s second assignment of error, he argues that the trial court 

erred by overruling his pro se motion to suppress evidence without providing him an 

evidentiary hearing and by permitting the state’s inaccurate bill of particulars, and in 

his third assignment of error, he challenges his conviction based on the weight and 

sufficiency of the evidence. Because we have sustained Lowe’s first assignment of 

error, his second and third assignments of error are moot. 

{¶19} The judgment of conviction is reversed and this cause is remanded to 

the trial court for further proceedings consistent with law and this opinion. 

Judgment reversed and cause remanded. 

DEWINE, P.J., and MOCK, J., concur.
OHIO FIRST DISTRICT COURT OF APPEALS

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Please note: 

 This court has recorded its own entry this date.