[Cite as State v. Wright , 2020-Ohio-6783.]

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

State of Ohio/City of Toledo Court of Appeals No. L-20-101 6 Appellee Trial Court Nos. CRB-19-05681-0101 CRB-19-05682-0101 v. Sha-Dama L. Wright DECISION AND JUDGMENT Appellant Decided: December 18, 2020

* * * * * John F. Potts, for appellant.

* * * * * MAYLE, J. {¶ 1} Following a bench trial, defendant-appellant, Sha-Dama L. Wrigh t appeals the December 3, 2019 judgment of the Toledo Municipal Court, co nvicting her of aggravated menacing and littering. Plaintiff-appellee, the cit y of Toledo, has not filed a brief. For the following reasons, we affirm, in part, and reve rse, in part, the trial court judgment.2. I. Background {¶ 2} On May 16, 2019, defendant-appellant, Sha-Dama Wright, was char ged in Toledo Municipal Court case No. CRB-19-05681-0101, with aggrava ted menacing, a violation of R.C. 2903.21, a first-degree misdemeanor (Case 1), and in Toledo Municipal Court case No. CRB-19-05682-0101, she was charged with litterin g, a violation of R.C. 3767.32(A), a third-degree misdemeanor (Case 2). Wright retain ed counsel and entered a plea of not guilty in both cases on May 17, 2019. {¶ 3} Case 1 and Case 2 were assigned to two different judges. Case 1 was set for trial on May 29, 2019. The victims failed to appear for trial and over Wright’s objection, the case was reset for trial on June 18, 2019. {¶ 4} Wright appeared in court with counsel on both cases on June 18, 2019. Case 1 was set for an attorney-only pretrial on July 10, 2019. Case 2 was set for trial on July 16, 2019. {¶ 5} After the July 10, 2019 pretrial, Case 1 was set for trial on A ugust 7, 2019. Wright appeared with counsel in Case 2 on July 16, 2019, but th at trial was also reset for August 7, 2019. Wright appeared with counsel on August 7, 2019 , on both cases, but the cases were not tried. Instead, they were sent to the presiding judge for consolidation. The cases were consolidated on August 12, 2019. {¶ 6} The consolidated case was reset for trial on September 3, 2019. Wright appeared again with counsel, and the case was again reset for t rial on October 29, 2019.3. When she appeared with counsel on October 29, 2019, Wright info rmed the court that she wished to retain new counsel. The court inquired of Wright: The Court: We are here for a trial in this matter. However, i t’s been brought to my attention, Ms. Wright, that you are upset with yo ur current counsel; is that correct? The Defendant: I would like to hire new counsel, Your Honor. The Court: And why is that? The Defendant: Um, because I’m not um, -- we have some communication issues, and I’m not satisfied. The Court: Are you saying you’re not willing to work with this attorney? The Defendant: Um, yes, Your Honor. The Court: I don’t know anything about the case. Counsel appe ars in front of me often; if not weekly. She knows what she’s doin g. I don’t know what was discussed or what was going on but she’s as compe tent as anybody to try a case. But you will not work with her? The Defendant: No, Your Honor. {¶ 7} The court agreed to allow Wright’s attorney to withdraw so that she could retain new counsel. He addressed the victims and Wright, indic ating that the next trial date—December 3, 2019—would be firm:4. The Court: * * * Defendant, in our system, does have a right t o have an attorney. She does have an attorney, but now is indicating that she’s not willing to work with that attorney. Which creates some issues potentially, down the road, that prosecutor [sic] can discuss more with you. I’m very, very reluctantly going to grant another date in this case. But I’m telling you, on the record, Ms. Wright, that the date I set is the date it’s going for trial. That is, if you don’t have an attorney, it’s going to g o to trial. If you have an attorney, who you don’t like, and are disagreeing with that day, it’s going to go to trial. No matter what, the next date it’s going to go to trial.

Is that understood? The Defendant: Yes, Your Honor. The Court: You agree with that? The Defendant: Yes, Your Honor.

* * * The Court: And you understand December 3rd is going to be the trial date? One way or the other; with new counsel, without ne w counsel, you understand? The Defendant: Yes, Your Honor. The court instructed Wright to provide her new counsel with the discovery that had been provided to her by the city.5. {¶ 8} On November 12, 2019, Wright’s newly-retained attorney entered an appearance in the case. On November 26, 2019, he filed a motio n to vacate the trial date because he was already scheduled to be in trial in another cour troom on the same day. The court denied the motion the next day. {¶ 9} On December 3, 2019, counsel appeared with Wright and again exp lained that he was trying a case in another courtroom. He also told t he court that previous counsel failed to request certain potentially-exculpatory disco very and that he was unable to open one of the disks provided in discovery. He renewed his request to vacate the trial date. The court again denied the request. {¶ 10} The case proceeded to trial. The city offered an opening state ment; counsel for Wright respectfully declined to proceed and left when it wa s time for his conflicting trial to begin. Wright was given the opportunity to cross-exam ine the city’s witnesses, but Wright informed the court that she did not wish to proceed without her attorney. She declined to present her own evidence or provide closing argumen t for the same reason. {¶ 11} The court found Wright guilty of both charges. Without her att orney present, it sentenced Wright to 180 days on the aggravated mena cing conviction and 60 days on the littering conviction, ordered the sentences to be s erved concurrently, and ordered all of the days suspended, except two days, which the c ourt ordered Wright to serve on a weekend of her choosing. It also imposed 80 hours o f community service on each of the cases. Wright moved for a new trial, which the cou rt denied on December 18,

2019.6. {¶ 12} Wright appealed. She assigns the following errors for our revi ew: ASSIGNMENT OF ERROR I: IT CONSTITUTED ERROR NOT TO MAKE A REASONABLE INQUIRY AS TO WHY DEFENDANT

WAS DISSATISFIED WITH HER ORIGINAL RETAINED COUNSEL

BEFORE MAKING AN ORDER PURPORTING TO DENY

DEFENDANT THE ASSISTANCE OF COUNSEL AT TRIAL.

ASSIGNMENT OF ERROR II: IT CONSTITUTED ERROR TO

DENY DEFENDANT HER RIGHT TO BE REPRESENTED BY

COUNSEL OF HER CHOICE AT TRIAL.

ASSIGNMENT OF ERROR III: IT CONSTITUTED ERROR TO DENY DEFENDANT TO PROCEED TO TRIAL [sic] WITHOUT THE

ASSISTANCE OF COUNSEL.

ASSIGNMENT OF ERROR IV: IT CONSTITUTED ERROR TO

SENTENCE DEFENDANT WITHOUT COUNSEL.

ASSIGNMENT OF ERROR V: IT CONSTITUTED ERROR TO

CONSOLIDATE DEFENDANT’S CASES BEFORE JUDGE HOWE. II. Law and Analysis {¶ 13} Wright argues in her first assignment that the trial court erre d in failing to make a reasonable inquiry into the basis for her dissatisfactio n with her first attorney. In her second assignment, she argues that the court erred in denyi ng her right to be represented at trial by counsel of her choice. In her third as signment, she argues that the7. court erred in forcing her to proceed to trial without assistan ce of counsel. In her fourth assignment, she argues that the court erred in sentencing her w ithout counsel. And in her fifth assignment, she argues that it was error for the presidin g judge to assign her case to Judge Howe when it consolidated her aggravated menacing and lit tering cases. {¶ 14} We address Wright’s assignments out of order. A. Violation of Wright’s Right to Counsel {¶ 15} In her third assignment of error, Wright argues that the trial court violated her Sixth Amendment right to counsel because it forced her to g o to trial pro se (1) without giving her the required warnings, and (2) after she rep eatedly told the court that she did not want to proceed without a lawyer. This issue prese nts us with a question of law, which we review de novo. State v. Wilkerson , 4th Dist. Pike No. 06CA749, 2008- Ohio-398, ¶ 8. State v. Reece , 6th Dist. Lucas No. L-17-1314, 2019-Ohio-2259, ¶ 14 (“Whether a defendant knowingly, intelligently, and voluntarily waived the right to counsel is an issue that we review de novo.”). {¶ 16} “It is axiomatic that a criminal defendant has a right to couns el pursuant to

the Sixth and Fourteenth Amendments to the United States Consti tution and Section 10, Article I of the Ohio Constitution, as well as a right to act a s his own counsel during trial,

if he so chooses.” State v. Harris , 6th Dist. Erie No. E-02-019, 2003-Ohio-5190, ¶ 23, citing Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). But “before a defendant may serve as his own counsel, the defendant must knowingly, intelligently, and voluntarily waive his right to assistance of counsel.” State v. Weiss , 928. Ohio App.3d 681, 684, 637 N.E.2d 47 (9th Dist.1993). Ohio appe llate courts have recognized that a waiver of the right to counsel may be express , or it may be inferred

from the circumstances of an individual case. State v. Ebersole , 107 Ohio App.3d 288, 293, 668 N.E.2d 934, 937 (3d Dist.1995). {¶ 17} In Weiss , the court observed that trial courts are sometimes confronted with a defendant who is financially able to retain counsel but fails to do so “in an attempt to delay or otherwise frustrate the judicial process.” Id. at 685. It acknowledged that in such a situation, a valid waiver may be implied from the circum stances of the case, however, it emphasized that even where a waiver is implied by a defendant’s purported delay tactics, the court must inquire to determine whether the defendant fully understands and intelligently relinquishes his or her right to counsel and to ensure that he or she has “some sense of the magnitude of the undertaking and the hazards inherent in selfrepresentation.” Id. {¶ 18} Citing the U.S. Supreme Court’s decision in Von Moltke v. Gillies , 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (1948), the Weiss court outlined the information that must be provided to a defendant in order to ob tain a valid waiver of the right to counsel: “an apprehension of the nature of the charge s, the statutory offenses included within them, the range of allowable punishments thereu nder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.” Weiss at 685

. The court clarified that this9. inquiry must be made, “even when the defendant is seemingly eng aging in delay tactics

* * *.” Id. {¶ 19} In Weiss, the defendant appeared for trial without an attorney after retaining and firing several attorneys and indicating that he w anted a private attorney to represent him. Over Weiss’s objection, the trial court proceed ed to trial, requiring Weiss to represent himself with appointed counsel serving as second c hair. The appellate court determined that “[a]lthough the court evidently informed Weiss that, if he showed up in court without representation, he would not be granted a further continuance and would be required to proceed pro se, there [was] nothing to indicate that Weiss knew the

ramifications of that threat.” Id. at 686. It concluded that the trial court should have made an inquiry of Weiss consistent with Von Moltke to ensure that he understood the ramifications of proceeding without an attorney, and if Weiss s aid that he still wanted an attorney, it should have granted one last continuance. “If Wei ss then appeared in court without representation, the court could proceed with trial, kno wing that Weiss knew that he would be required to proceed pro se and also knew the possible consequences of being required to represent himself.” Id. {¶ 20} Numerous Ohio courts have followed Weiss. In City of Akron v. Hill , 9th Dist. Summit No. 17230, 1996 WL 11983 (Jan. 10, 1996), the cour t set a trial date of January 17, 1995. On December 7, 1994, Hill’s retained attorne y moved for a one-day continuance because of a scheduling conflict; the court denied the motion. On10. December 30, 1994, counsel moved to withdraw “‘based upon the w ishes of the

Defendant.’” Id. at *1. The trial court granted the motion. {¶ 21} On January 17, 1995, Hill appeared without counsel. She expres sed that she was having financial difficulties in retaining a lawyer and asked the court to appoint her one. The court told her that she did not qualify for appoi nted counsel. It continued the trial until February 2, 1995, to give her an opportunity to retain new counsel. The court told her that she had the right to an attorney, but if sh e did not have one, she would have to go forward, representing herself. {¶ 22} On January 31, 1995, new counsel entered an appearance and move d the trial court to continue the trial date due to a scheduling conf lict. The court denied the motion the next day: “The trial was set on January 17, 1995 af ter the court had allowed two continuances at the request of the defense. On January 17, 1995 the court advised the defendant on the record and in open court that she should r etain counsel immediately, because the date of jury trial would not be continued again. B ased upon the foregoing,

the defense motion for continuance of trial is overruled.” Id. at *2. {¶ 23} Hill appeared for trial on February 2, 1995, without counsel. The court asked her if she intended to offer an opening, and Hill respond ed that she was not qualified to do so. The trial court recounted the events leadi ng to her appearance at trial without counsel, and informed her of her right to participate i n the trial. Hill repeated that she was not qualified to defend herself. She did not ques tion witnesses, put on11. evidence, or make a closing argument. The jury found defendant guilty of the charges against her. {¶ 24} On appeal Hill argued that the trial court deprived her of her constitutional right to counsel. The city maintained that she implicitly waiv ed her right to counsel “under the totality of the circumstances.” The appellate court concluded that Hill’s right

to counsel had been violated. It found that while “the trial c ourt warned defendant on January 17, 1995, that, if she showed up on February 2, 1995, w ithout counsel, she would be forced to proceed pro se [,] [i]t did not * * * conduct the type of inquiry into defendant’s understanding of the ramifications of proceeding wi thout an attorney that is necessary to ensure that a waiver is knowing and voluntary.” Id. at *4. {¶ 25} Similarly, in State v. Hunter , 9th Dist. Lorain No. 10CA009903, 2012- Ohio-1121, the trial court set a trial date of May 13, 2009, wh ich it then continued to June 10, 2009. When the parties appeared for trial on June 10, 2009, Hunter requested a continuance to retain counsel. The court denied the request an d the matter proceeded to trial, where Hunter was forced to defend himself. {¶ 26} The appellate court recognized that “[t]he Sixth Amendment prov ides that

a criminal defendant shall be entitled to have the assistance o f counsel for his defense, as well as the right to act as his own counsel when he knowingly, voluntarily, and intelligently elects to do so.” Id. at ¶ 14. But it observed that to ensure that a waiver of counsel is made knowingly, voluntarily, and intelligently, the trial court must make “a sufficient inquiry to determine whether the defendant was advis ed of the dangers and12. disadvantages of self-representation.” Id. This requires “a showing on the record that the

defendant who elects to conduct his own defense had some sense of the magnitude of the undertaking and the hazards inherent in self-representation.” Id. at ¶ 15. It emphasized that this inquiry “‘must be made, even when the defendant is se emingly engaging in delay tactics, because such a delaying strategy by the defendan t is often employed where

the defendant does not understand the crucial role of counsel i n criminal cases.’” Id. , quoting Weiss , 92 Ohio App.3d at 685, 637 N.E.2d 47. {¶ 27} Because the trial court did not advise Hunter of the dangers ofselfrepresentation before commencing trial, the court concluded tha t the defendant’s Sixth Amendment right to counsel was violated. See also State v. Miyamoto , 3d Dist. Union No. 14-05-43, 2006-Ohio-1776, ¶ 16-19 (finding violation of rig ht to counsel even though the proceedings were continued twice so that defendant c ould obtain counsel, and he was given a Public Defender Application which was never comp leted and submitted to the court). {¶ 28} Here, it cannot be disputed that the trial court advised Wright on the record on October 29, 2019 (the fifth trial date in the aggravated men acing case)—and Wright

indicated that she understood—that the case would be tried on D ecember 3, 2019 with or

without counsel. Despite Wright’s representation that this was never journaliz ed,

notations consistent with the admonition are contained in the d ocket entries: the docket in the aggravated menacing case indicates that it “will go forw ard w/ or w/out counsel,” and the docket in the littering case indicates that the case wa s “not to be reset by13. [defendant] again.” Moreover, counsel confirmed that Wright co mmunicated this message to him (“[T]he defendant did tell me The Court had caut ioned her that this case was going to proceed to trial today no matter what.”). {¶ 29} A review of the transcript of the October 29, 2019 hearing also demonstrates that the nature of the charges and the potential p enalties were, for the most part, explained to Wright. But this was done in the context of detailing a rejected plea offer, and Wright expressed a major concern about certain colla teral consequences on her state employment if convicted; the court and counsel were unabl e to advise her in this regard. Nor did the court address “possible defenses” and “cir cumstances in mitigation”

or discuss with her the crucial role of counsel in criminal cas es. See Von Moltke , 332 U.S. at 724, 68 S.Ct. 316, 92 L.Ed. 30; Hunter , 9th Dist. Lorain No. 10CA009903, 2012- Ohio-1121, at ¶ 15. {¶ 30} Like the trial court, we are very troubled by the timeline in t his case. The aggravated menacing case was scheduled for trial six times; the littering case five times. The victims appeared multiple times—one from Amherst, Ohio, and one from Napoleon, Ohio. Moreover, counsel entered an appearance on November 12, 2019, yet despite these clear warnings by the court, he waited two full weeks before fi ling a motion for a continuance. He filed this motion November 26, 2019—the Tuesda y before Thanksgiving—and the court promptly denied the motion the next day, before the holiday. Nevertheless, Wright and her attorney appeared the fo llowing Tuesday not prepared to proceed. While this may not have been a delay tact ic, per se, it certainly14. presented an inconvenience to the witnesses and interfered with the court’s

administration of its docket. {¶ 31} Having said this, “there is a presumption against finding that a defendant has waived his or her right to counsel.” Reece , 6th Dist. Lucas No. L-17-1314, 2019- Ohio-2259, at ¶ 9. See also State v. Wilkerson , 4th Dist. Pike No. 06CA749, 2008-Ohio398, ¶ 12 (“[W]e must indulge every reasonable presumption agai nst a waiver of fundamental constitutional rights.”) Moreover, “[t]he State be ars the burden of overcoming presumptions against a valid waiver.” (Internal quo tations and citations omitted.). State v. Herron , 11th Dist. Lake No. 2009-L-119, 2010-Ohio-2050, ¶ 23. Here, the state did not make any arguments against waiver—indeed, it did not file a brief on appeal. {¶ 32} Under the circumstances of this case, particularly given the ci ty’s failure to file a brief on appeal, we cannot conclude that Wright was adeq uately informed of the magnitude of the undertaking and the hazards inherent in self-r epresentation such that a waiver of her right to counsel may be inferred. {¶ 33} Accordingly, we find Wright’s third assignment of error well-ta ken. We deny as moot her first, second, and fourth assignments of error

. B. Consolidation of the Cases {¶ 34} In her fifth assignment of error, Wright argues that the proced ure used in consolidating her aggravated menacing and littering cases viola ted Toledo Municipal Court Local Rule 15(C)(3). She maintains that under this rule, the cases should have15. been consolidated within the case with the lower case number. Had this procedure been used, her cases would have been assigned to Judge Wagner instea d of Judge Howe. {¶ 35} Toledo Municipal Court Local Rule 15(C)(3) provides that “[i]n criminal and traffic cases, when a plea of not guilty is entered, the co urt services department will randomly assign the case to a specific judge except: * * * [i] f a defendant has multiple charges with different case numbers, the cases will be assigned to a single judge.” While it may be the custom of the municipal court to consolidate case s into the case with the lowest case number, Toledo Municipal Court Local Rule 15(C)(3) does not state that the

cases must be consolidated into the case with the lower case nu mber. Compare Lucas County Common Pleas Court Local Rule 5.02(B) (“If the designati on sheet indicates that there is a related or companion case pending, the designation s heet will be sent to the newly assigned judge to review the request for consolidation wi th the judge who has the pending case with the lowest number.”). {¶ 36} Accordingly, we find Wright’s fifth assignment of error not wel l-taken.

III. Conclusion {¶ 37} Because the trial court forced Wright to proceed to trial pro s e without obtaining an express or implied waiver of her right to counsel, thereby violating her Sixth Amendment right to counsel, we find her third assignment of err or well-taken. Because Toledo Municipal Court Local Rule 15(C)(3) does not state that when consolidating cases, the case with the higher case number must be consolidate d into the case with the16. lower case number, we find her fifth assignment of error not we ll-taken. We deny as moot her first, second, and fourth assignments of error. {¶ 38} We affirm, in part, and reverse, in part, the December 3, 2019 judgment of the Toledo Municipal Court. We remand this matter to the munic ipal court for a new trial. The city is ordered to pay the costs of this appeal und er App.R. 24.

Judgment affirmed, in part, and reversed, in part.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________

________ JUDGE Christine E. Mayle, J. CONCUR. _______________________________ JUDGE

Gene A. Zmuda, P.J. ______________________

_________ CONCURS AND WRITES J UDGE SEPARATELY.

ZMUDA, P.J. {¶ 39} Because I agree with the majority’s analysis regarding the assi gned errors, I concur with the majority’s decision to reverse for a new trial. I write separately to address the character of the continuances in the trial court pr oceedings, viewed as probable delaying tactics by the majority.17. {¶ 40} Initially, appellant was charged in two separate cases and had two separate judges, one presiding over her littering case and one presiding over her aggravated menacing case. While there were numerous continuances in each case, both before and after the matter was consolidated before a single judge, the re cord indicates that the trial court continued the first trial date in the aggravated menacing case over appellant’s objection, after the victim did not appear for trial. Furtherm ore, the aggravated menacing case was twice continued for pretrial with attorneys only, appa rently to address the status of plea negotiations. Another trial continuance occurred immed iately after the two cases were consolidated, with both cases assigned to the judge presid ing over the littering case. {¶ 41} Once the trial court consolidated the two cases in August 2019, there were

two more trial continuances. The trial court continued the tri al from September 3 until October 29, 2019. On September 4, 2019, appellant’s trial coun sel was granted leave to withdraw. The trial court noted that appellant refused to coop erate with her counsel and rejected a negotiated plea. The trial court continued the tria l date until December 3, 2019, and cautioned appellant that the new trial date was a fir m date, and the trial would proceed whether appellant had retained new counsel or not. {¶ 42} Based on the trial court’s docket entries regarding each new tr ial date, I would not characterize each continuance as a pure, delaying str ategy on the part of appellant, as the chronology of events in this case do not bear the unmistakable mark of undue delay. It appears, instead, that the trial court accommo dated counsel requests to explore a plea agreement and also rescheduled the trial date af ter consolidation to place18. the two cases on a single court calendar. While appellant may have purposefully worked toward delaying her trial date, the record presents a more nuan ced picture, demonstrating additional factors at play. I agree with the majority’s judgme nt, but I find this case presents even more egregious circumstances than the trial court ’s mere failure to engage in a colloquy with appellant, as noted by the majority. I, the refore, respectfully concur.

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/.