[Cite as State v. Condos , 2022-Ohio-112.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. ZACHARY CONDOS Appellant C.A. No. 29782

APPEAL FROM JUDGMENT ENTERED IN THE STOW MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 20 CRB 1080

DECISION AND JOURNAL ENTRY Dated: January 19, 2022

HENSAL, Presiding Judge. {¶1} Zachary Condos appeals his criminal trespassing conviction from the Stow Municipal Court. This Court affirms in part, reverses in part, and remands the matter for further proceedings consistent with this decision.

I. {¶2} Mr. Condos was charged with one count of criminal trespassing i n violation of Tallmadge Codified Ordinance 541.05, which is a misdemeanor of the fourth degree, and considered a petty offense. See Crim.R. 2(C) and (D) (defining a “[p]etty offense” as a misdemeanor with a penalty of si x months or less of confinement ); Tallmadge Codified Ordinance 541.05(d)(1) (providing that criminal trespass is a m isdemeanor of the fourth degree);

id . at 501.99(b)(1)(D) (providing that jail time for a misdemeano r of the fourth degree shall be “not more than thirty days.” ). He pleaded not guilty and the m atter proceeded to a bench trial.2

{¶3} At the start of the trial, the prosecutor indicated that Mr. Co ndos was proceeding pro se. The prosecutor then indicated that the City had discus sed resolving the case with Mr. Condos at a pretrial, but that Mr . Condos was not interested in pleading guilty to the charged

offense. {¶4} The trial court then addressed Mr. Condos. It did not refer to the charge itself (either by name or statute), but indicated that it was a misdem eanor of the fourth degree, with punishment of up to 30 days in jail and a $250 fine. The trial court explained that the prosecutor had indicated that, if he plead ed guilty, the prosecutor would request a suspended jail sentence. The trial court also explained th at it would probably order him not to return to the property that was the subject of the trespassi ng charge. The trial court con firmed that Mr. Condos understood – and was rejecting – the prosecutor’s offer. {¶5} The trial court then asked Mr. Condos if he was representing hi mself, and he answered affirmatively. The trial court informed him that the Rules of Evidence applied to him

whether he knew those rules or not. Mr. Condos indicated that he understood. The trial court then stated that it was going to start the trial with opening s tatements, which – like closing arguments – are not evidence. Mr. Condos again indicated that he understood. After the prosecutor and Mr. Condos both d eclined to give opening stateme nts, the trial court allowed the prosecutor to call her first witness. {¶6} The trial court ultima tely found Mr. Condos guilty. It sentenc ed him to: (1) 30 days in jail, which it suspended, (2) a $250 fine with $150 sus pended; and (3) six months of community control. It also ordered him to have no contact with the property that was the subject of the trespassing charge, or with the family that resided ther e. Mr. Condos now appeals, raising four assignments of error fo r this Court’s review.3

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND PLAIN ERROR AND DEPRIVED MR. CONDOS OF HIS RIGHT TO COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION AS THE COURT FAILED TO ENSURE THAT MR. CONDOS HAD MADE A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER OF HIS RIGHT TO COUNSEL IN ACTING PRO SE AT THE TRIAL. {¶7} In his first assignment of error, Mr. Condos argues that the tr ial court violated his constitutional rights by not ensuring that he voluntarily, know ingly, and intelligently waived his right to counsel. This Court agrees. {¶8} The Sixth Amendment to the United States Constitution guarantee s a criminal defendant the right to counsel for his defense. Accord Ohio Constitution, Article I, Section 10. Pursuant to Criminal Rule 44(B), “[w]hen a defendant charged wi th 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] know ingly, intelligently, and volunt arily waives assignment of

counsel.” {¶9} “We review whether a defendant has made a knowing, voluntary, a nd intelligent waiver of his right to counsel de novo.” State v. Ott , 9th Dist. Summit No. 27953, 2017-Ohio521, ¶ 5. As this Court has stated: The Ohio Supreme Court has held t hat a defendant has the right of selfrepresentation and “that he may proceed to defend himself witho ut counsel when he voluntarily, and knowingly, a nd intelligently elects to do s o.” State v. Gibson , 45 Ohio St.2d 366 (1976), paragraph one of the syllabus. “In o rder to establish an effective waiver of right to couns el, the trial court must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right.” Id . at paragraph two of the syllabus. Part of that inquiry inclu des determining whether “the defendan t was advised of the dangers a nd disadvantages of self-representation.” State v. Hunter , 9th Dist. Lorain No. 10CA009903, 2012- Ohio-1121, ¶ 14, see Faretta v. California , 422 U.S. 806, 835 (1975). “This is because, ‘[w]hen an accused manages his own defense, he relinqu ishes, as a4

purely factual matter, many of t he traditional benefits associa ted with the right to counsel.’” State v. Dowey , 9th Dist. Summit No. 25963, 2012-Ohio-4915, ¶ 3, quoting Faretta at 835.

Id. {¶10} Upon review of the record, there is no indication that the tria l court explained to Mr. Condos “the nature of the charges, the statutory offenses i ncluded within the m, the range of allowable punishments, possible defenses, mitigation, or other facts essential to a broad understanding of the whole matter[.]” State v. Martin , 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 43; Gibson at 377, quoting Von Moltke v. Gillies , 332 U.S. 708, 723 (1948). Accordingly, we cannot say that he voluntarily, knowingly, and intelligently wa ived his right to counsel.

See Martin at ¶ 45. Having determined that the trial court violated Mr. Condos’s constitutional right, we now turn to the appropria te remedy under these circum stances. {¶11} Over the years, the appellate courts, including this Court, hav e sometimes determined that the appropriate remedy for failing to advise a defendant of his or her right to counsel is to vacate the jail term portion of the defendant’s s entence. See, e.g. , State v. Briggs , 9th Dist. Wayne Nos. 18AP0008 and 18AP0023, 2021-Ohio-1980, ¶ 1 7. Other times, the appellate courts have determined that the appropriate remedy is to vacate the defendant’s conviction and grant the defendant a new trial. See, e.g. , City of Cuyahoga Falls v. Hurd , 9th Dist. Summit No. 26657, 2013-Ohio-3512, ¶ 10-11. In State v. Ott , this Court acknowledged

that it “has ordered both reme dies, depending on the particular circumstances of the case.” 2017- Ohio-521, at ¶ 7. This Court noted that, subsequent to those d ecisions, “the Supreme Court * * * provided additional guidance about the extent of a defendant’s right to counsel under Ohio law.”

Id. We then cited the Ohio Supreme Court’s decision in State v. Bode , which concluded that an “uncounseled adjudication amounted to an unconstitutional viola tion of [the defendant’s] due-5

process rights. 144 Ohio St.3d 155, 2015-Ohio-1519, ¶ 24. App lying Bode , we concluded that

the defendant’s conviction must b e reversed, and the case reman ded for a new trial. Ott at ¶ 8;

see State v. Owens , 9th Dist. Summit No. 29098, 2019-Ohio-2206, ¶ 14 (following Ott ); State v. Wamsley , 5th Dist. No. 15-COA-030, 2016- Ohio-2885, ¶ 18-25 (analyzing the Ohio Supreme

Court’s decision in Bode , and explaining why ordering a new trial, not vacating the jai l-term portion of the defendant’s senten ce, is the appropriate remedy) ; contra Briggs at ¶ 17. {¶12} Despite being entitled to a new t rial, Mr. Condos has requested that this Court vacate the jail term portion of his sentence; he has not reques ted a new trial. Nonetheless, we find that the appropriate remedy in this case is to remand the matter to the trial court with

instructions that Mr. Condos b e given the opportunity to reques t a new trial, or to request that the jail term portion of his sentence be vacated. See State v. Engle , 74 Ohio St.3d 525, 528 (1996) (remanding the matter to the trial court with instructions that the defendant be given the opportunity to withdraw her involuntary plea and proceed to tri al). Mr. Condos’s first assignment of error is s ustained on that basis.

ASSIGNMENT OF ERROR II

THE STATE FAILED TO PROVE TRESPASS BEYOND A REASONABLE DOUBT IN THAT IT FAILED TO PROVE THAT ZACHARY WAS ON THE PROPERTY HE DID NOT HAVE PRIVILEGE TO BE ON AND IT FAILED TO PROVE THAT ANY STATE’S WITNESS HAD AUTHORITY TO REVOKE PRIVILEGE[.] {¶13} In his second assignment of err or, Mr. Condos challenges the su fficiency of the evidence presented at trial. A lthough this Court has sustained Mr. Condos’s first assignment of error, “we must still address his sufficiency challenge, as a r eversal on sufficiency grounds

would bar retrial.” Owens , 2019-Ohio-2206, at ¶ 19.6

{¶14} Whether a conviction is supporte d by sufficient evidence is a q uestion of law,

which this Court reviews de novo. State v. Thompkins , 78 Ohio St.3d 380, 386 (1997). “The relevant inquiry is whether, after viewing the evidence in a li ght most favorable to the prosecution, any rational trier of fact could have found the es sential elements of the crime proven beyond a reasonable doubt.” State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. In conducting this inquiry, “we do not resolve evide ntiary conflicts or assess the credibility of witnesses, because these functions belong to the trier of fact.” State v. Hall , 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10. Additionally, whil e Mr. Condos challenges the admissibility of some of the evidence presented at trial in his fourth assignment of error, in a sufficiency analysis, “we consider all the testimony regardless of any alleged error in its

admission.” State v. Meinke , 9th Dist. Lorain Nos. 15CA010738 and 15CA010739, 2017-Ohio7787, ¶ 10. {¶15} Tallmadge Codified Ordinance 541.05(a)(1) provides that “[n]o p erson, without privilege to do so, shall * * * [k]nowingly enter or remain on the land or premises of another[.]” “A person acts knowingly, regard less of purpose, when the perso n is aware that the person’s conduct will probably cause a cer tain result or will probably b e of a certain nature. A person has knowledge of circumstances when the person is aware that such c ircumstances probably exist.”

Id. at 501.08(b)

. {¶16} At trial, the City called L.L. as its first witness. L.L. test ified that he lives at the subject property, and that he was there on the day Mr. Condos a llegedly trespassed. He testified that he was sitting on his front porch, and that his son and hi s son’s dog were in his front yard. According to him, he saw Mr. Condos walking down the road. Mr. Condos then stopped in front of his house and started cursing at his son. Mr. Condos then w alked to L.L.’s neighbor’s yard,7

continued cursing at his son, and then walked back into L.L.’s yard. L.L. testified that he and his son repeatedly told Mr. Condos t o leave, but Mr. Condos remaine d on his property and continued yelling and cursing at his son. L.L. then told Mr. Condos he w as going to call the police, at which point Mr. Condos walked away. L.L. also testified that h e had told Mr. Condos on two or three prior occasions that he w as not welcome on his property, and that the police had been involved in the past. {¶17} The City then called L.L.’s wife, who testified that she was no t home when Mr. Condos was on their property. She testified that she was on he r way back from the gas station and saw Mr. Condos walking away from their house. She also tes tified that Mr. Condos had trespassed on their property in the past, and that Mr. Condos h ad been told several times that he

was not allowed on the ir property. {¶18} Next, the City called Sergeant Woofter, who testified that he h ad past dealings with Mr. Condos. He testified that those dealings included tre spassing issues at the subject property, and that he had previous ly told Mr. Condos that he wa s never to return to that property, or have any more contact with L.L.’s son. {¶19} Finally, the City called Office r Quillen, who responded to the scene and spoke with L.L., his wife, his son, and – eventually – Mr. Condos. H e testified that he was aware that Sergeant Woofter had previously told Mr. Condos not to return t o the property. He testified that Mr. Condos was very agitated, and that Mr. Condos insisted that there was no proof that he was on L.L.’s property. He also testified that Mr. Co ndos told him that he was on the street to mow his grandparent’s lawn, and that he just happened to walk by L. L.’s house. {¶20} With that evidence in mind, we now turn to Mr. Condos’s argumen ts with respect to the sufficiency of the evidence. He argues that the City fa iled to prove: (1) that he lacked8

privilege to be on the property; (2) that he was even on the pr operty, as opposed to a public area near the property; (3) that his privilege to be on the property had been revoked; (4) that he remained on the property after being told to leave; and (5) tha t L.L. had the authority to tell him to leave the property. {¶21} Despite Mr. Condos’s arguments to the contrary, the testimony p resented at trial indicated that L.L. lived at the subject property, that Mr. Con dos walked into his yard and started cursing at his son, that L.L. and his son repeatedly told him t o leave, that Mr. Condos remained on the property despite being told to leave, and that Mr. Condo s did not leave until L.L. told him he was going to call the poli ce. The testimony also indicated that Mr. Condos had been previously told never to return to L.L.’s property. Viewing th is evidence in a light most favorable to the City, we concl ude that a rational trier of fac t could have found the essential elements of criminal trespassing proven beyond a reasonable dou bt. Mr. Condos’s second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]

ASSIGNMENT OF ERROR IV

THE TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING TESTIMONY AS TO “OTHER ACTS” EVIDENCE PERTAINING TO CLAIMS OF ZACHARY TRESPASSING AT TIMES OTHER THAN ON MAY 2, 2020. {¶22} In light of this Court’s resolution of Mr. Condos’s first and s econd assignments of error, we decline to address hi s third and fourth assignments o f error on the basis that they are

moot. See App.R. 12(A)(1)(c).9

III. {¶23} Mr. Condos’s first assignment of error is sustained. Mr. Condo s’s second assignment of error is overruled. We decline to address Mr. Co ndos’s third and fourth assignments of error on the basi s that they are moot. The judg ment of the Stow Municipal Court is affirmed in part, reversed in pa rt, and the matter is remand ed for further proceedings consistent

with this decision. Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Stow Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed equa lly to both parties.

JENNIFER HENSAL FOR THE COURT10

CARR, J. TEODOSIO, J. CONCUR.

APPEARANCES: RICHARD P. KUTUCHIEF, Attorn ey at Law, for Appellant. MEGAN E. RABER, Director of Law, and MELODY L. BRIAND, Assistan t Director of Law, for Appellee.