[Cite as State v. Patterson, 2020-Ohio-1437.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HANCOCK COUNTY 

 

STATE OF OHIO, 

 

 PLAINTIFF-APPELLEE, CASE NO. 5-19-34 

 v. 

CORNELIUS PATTERSON, JR., 

 O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Hancock County Common Pleas Court 

Trial Court No. 2009 CR 218 

Judgment Reversed and Cause Remanded 

Date of Decision: April 13, 2020 

 

APPEARANCES: 

W. Alex Smith for Appellant 

Phillip A. Riegle for Appellee 
Case No. 5-19-34 

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ZIMMERMAN, J. 

{¶1} This appeal, having been placed on the accelerated calendar, is sua 

sponte being assigned and considered on the regular calendar pursuant to Loc.R. 

12(1). Under the authority of Loc.R. 12(5), we have elected to issue a full opinion 

in lieu of a judgment entry. 

{¶2} Defendant-appellant, Cornelius Patterson, Jr., (“Patterson”) appeals the 

August 29, 2019 judgment entry of resentencing of the Hancock County Common 

Pleas Court. For the reasons that follow, we reverse. 

{¶3} On October 27, 2009, the Hancock County Grand Jury indicted 

Patterson on four criminal counts including: Count One of aggravated murder in 

violation of R.C. 2903.01(B), an unclassified felony; Count Two of aggravated 

burglary in violation of R.C. 2911.11(A)(1), a first-degree felony; Count Three of 

improperly discharging firearm at or into a habitation in violation of R.C. 

2923.161(A)(1), a second-degree felony; and Count Four of tampering with 

evidence in violation of R.C. 2921.12(A)(1), a third-degree felony. (Doc. No. 1). 

The indictment included firearm specifications as to Counts One, Two, and Three 

under R.C. 2941.145. (Id.). 

{¶4} The case proceeded to a jury trial on February 8-11 and 14-15, 2011. 

(Doc. Nos. 165, 170). On February 15, 2011, the jury found Patterson guilty of 

Counts One, Two, Three, and Four and the specifications as to Counts One, Two, 
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and Three. (Doc. Nos. 158, 159, 160, 161). The trial court filed its judgment entry 

of conviction on March 17, 2011. (Doc. No. 170). On April 21, 2011, the trial court 

sentenced Patterson to 30 years to life in prison as to Count One, a mandatory term 

of three years in prison as to the firearm specification in Count One, and a four-year 

prison term as to Count Four for an aggregate prison term of 37 years to life. (Doc. 

No. 172). For purposes of sentencing, the trial court merged Counts One, Two and 

Three. (Id.). The trial court filed its judgment entry of sentence on April 27, 2011.1

 

(Id.). 

{¶5} On December 26, 2018 and February 14, 2019, Patterson entered his 

notices of appearance as counsel, pro se, pursuant to State v. Gibson, 45 Ohio St.2d 

366 (1976) and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525 (1975). (Doc. 

Nos. 283, 284). Thereafter, Patterson filed motions in the trial court to correct a 

void judgment and to waive payment of a deposit and the imposition of court 

costs/fees.2

 (Doc. Nos. 285, 286). The State filed its memorandum in opposition to 

Patterson’s motion to correct a void judgment. (Doc. Nos. 287, 288). 

{¶6} The trial court granted Patterson’s motion to correct a void judgment 

and scheduled a video-conferenced-resentencing hearing for June 27, 2019 under 

 

1

 This court recited much of the factual and procedural background of this case in previous appeals, and we 

will not duplicate those efforts here. See State v. Patterson, 3d Dist. Hancock No. 05-11-15, 2012-Ohio2839 and State v. Patterson, Case No. 05-18-24, which was voluntarily dismissed on December 20, 2018 

upon Patterson’s pro-se motion. (Appellee’s Brief at 1). 

2

 The trial court granted Patterson’s motion to waive payment of deposit and imposition of court costs/fees 

on October 22, 2019. (Doc. No. 308). 
Case No. 5-19-34 

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R.C. 2929.191(C).3

 (Doc. Nos. 290, 291). However, on May 13, 2019, Patterson 

filed a motion to be personally present for the R.C. 2929.191(C) hearing “and to 

consult with counsel of giving statement [sic] to impose the postrelease control 

sanction” which was overruled by the trial court. (Doc. Nos. 292, 293, 298). Thus, 

the resentencing hearing occurred by video on June 27, 2019.4

 (June 27, 2019 Tr. 

1-34); (Doc. No. 312). On August 29, 2019, the trial court journalized its judgment 

entry of correction of its postrelease control notification.5

 (Doc. No. 298). Patterson 

filed his notice of appeal on September 25, 2019.6

 (Doc. No. 301). He raises one 

assignment of error for our review. 

Assignment of Error 

The Trial Court Erred By Not Allowing Mr. Patterson to Be 

Represented by Counsel [sic] 

 

3

 Arrangements were made to permit Patterson to participate in the hearing via video-conference equipment 

from the Marion Correctional Institution’s facility (“MCI”). (See Doc. No. 290). 4

 Patterson never explicitly requested the appointment of counsel in his motion. (See Doc. No. 292). Rather, 

he argued that were he not permitted to be physically present he “would be denied the right to privately 

consult with counsel” in an effort to establish prejudice for his physical-presence claim. (Id.). Patterson’s 

prayer’s for relief in his motion requested only that the trial court convey him from MCI to Hancock County 

Common Pleas Court. (Doc. No 292) 

5

 Patterson filed a motion for [sic] request of journalization for [sic] the resentencing hearing (video 

conference) pursuant to R.C. 2929.191 on August 30, 2019 which the trial court overruled on the basis it was 

moot. (Doc. Nos. 299, 300). (See Doc. No. 298). 

6

 On the same day, Patterson filed a motion to waive payment of deposit and imposition of court costs/fees 

on appeal with attached affidavit of indigency and motion for appointment of appellate counsel. (Doc. No. 

307). The trial court granted Patterson’s request for appointment of appellate counsel on October 22, 2019 

(Oct. 22, 2019 JE). 
Case No. 5-19-34 

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{¶7} In his assignment of error, Patterson argues that the trial court erred by 

failing to appoint Patterson counsel in open court at the video-conferencedresentencing hearing. 

Standard of Review 

{¶8} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence 

“only if it determines by clear and convincing evidence that the record does not 

support the trial court’s findings under relevant statutes or that the sentence is 

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 

¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the 

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id. 

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the 

syllabus. 

Analysis 

{¶9} Here, Patterson was resentenced to correct the trial court’s improperpostrelease-control-sanction notification at his original sentencing hearing pursuant 

to R.C. 2929.191(C). R.C. 2929.191(C) states in its pertinent parts: 

(C) On and after the effective date of this section, a court that wishes 

to prepare and issue a correction to a judgment of conviction of a type 

described in division (A)(1) or (B)(1) of this section shall not issue 

the correction until after the court has conducted a hearing in

accordance with this division. Before a court holds a hearing pursuant 

to this division, the court shall provide notice of the date, time, place, 

and purpose of the hearing to the offender who is the subject of the 

hearing, the prosecuting attorney of the county, and the department of 
Case No. 5-19-34 

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rehabilitation and correction. The offender has the right to be 

physically present at the hearing, except that, upon the court’s own 

motion or the motion of the offender or the prosecuting attorney, the 

court may permit the offender to appear at the hearing by video 

conferencing equipment if available and compatible. An appearance 

by video conferencing equipment pursuant to this division has the 

same force and effect as if the offender were physically present at the 

hearing. At the hearing, the offender and the prosecuting attorney may 

make a statement as to whether the court should issue a correction to 

the judgment of conviction. 

(Emphasis added.) R.C. 2929.191(C). 

{¶10} Initially, we note that Patterson notified the trial court, twice, that he 

intended to engage in self-representation by virtue of his designations of counsel 

filed on December 26, 2018 and February 14, 2019. (Doc. Nos. 283, 284). After 

filing his notices of self-representation, he filed a motion to correct a void judgment 

in the trial court. (Doc. Nos. 287, 288). Importantly, Patterson never requested the 

appointment of counsel in the trial court at any time prior to the resentencing 

hearing. (June 27, 2019 Tr. at 7-8); (Doc. No. 312). 

{¶11} Here, Patterson argues that he was denied his right to counsel and 

directs us to the following exchange with the trial court and Patterson that occurred 

during his resentencing hearing. 

[Trial Court]: And as I indicated in the judgment entry from April 

9, 2019, you are not subject to a five-year PRC 

sanction. In the event, you would be granted parole 

you could be subject, however, to an optional three 
Case No. 5-19-34 

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years of PRC on Count 4, the tampering with 

evidence. 

 It is optional because the Department of Corrections 

is not required to put you on PRC for a felony of the 

third degree, it’s discretionary under the statute. If, 

however, within the discretion of the Department of 

Corrections, if they were to decide that you should 

be placed on PRC, for Count 4, tampering with 

evidence, they could choose to put you on PRC for 

as long as three years. 

 Do you understand that? 

[Patterson]: No, I do not. 

[Trial Court]: What is it that -- 

[Patterson]: I’m not understanding. Hold on, hold on, Your 

Honor. 

 I don’t understand, first and foremost, I don’t 

understand how you can just go and give me a PRC 

off of my indefinite sentence and then turn around 

and put it on a regular sentence and make it 

discretionary, first of all. 
Case No. 5-19-34 

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 Second of all, I completely object to actually having 

the video court because relying upon Criminal Rule 

43, I have a right to be present in open court and I 

have a right to an attorney of my choosing and I 

have a right to consult with them privately. 

(Emphasis added.) (June 27, 2019 Tr. at 6-7); (Doc. No. 312). Thereafter, Patterson 

goes on to argue the following: 

 [Patterson]: Plus, relying on State v. Moore, this is not 

considered to be present in open court. This is a 

critical stage of my sentencing and I have a right to 

be present at this point and time now, you have the 

ability to take PRC of my invalid sentence and yet 

turn around and resentence me. 

 That’s a critical step because PRC is part of the 

actual sentence, relying upon a case that is directly 

out of your courtroom, State versus Todd [sic] 

(inaudible) and relying on State versus (inaudible), 

was the Ohio Supreme Court case which clearly 

states I have a right to not stand alone against the 

State at any given time in the proceedings. 
Case No. 5-19-34 

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[Trial Court]: Well, Mr. Patterson, I did receive your objection that 

you filed to doing this video. I overruled that 

objection. The statute clearly contemplates that it 

can be done by video and that Ohio Supreme Court 

has said that the sentence or a resentencing for PRC, 

because I have no discretion as to what PRC is 

imposed, it does not require you to be present. The 

court can simply do that. 

[Patterson]: (Interrupting) That’s not true, Your Honor. 

[Trial Court]: - - you filed the motion on your own behalf, 

indicating that you were going to be representing 

yourself. You did not make a request in advance of 

this hearing to have an attorney appointed for you. 

And, again, this is not a hearing that I have discretion 

over. I don’t have a choice about what I advise you 

of for PRC. 

 Judge Niemeyer incorrectly ordered five years of 

PRC because he believe that’s what the statute 

required. You were correct in - - 

[Patterson]: Which is true. 
Case No. 5-19-34 

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(Emphasis sic.) (Id. at 7); (Id.). 

{¶12} The Supreme Court of Ohio has determined “that the right to counsel 

attaches at a resentencing hearing conducted for the limited purpose of imposing 

statutorily mandated postrelease control”. State v. Schleiger, 141 Ohio St.3d 67, 

2014-Ohio-3970, ¶ 17. However, that does not end the inquiry, “[w]hile a defendant 

has a right to counsel, the defendant may also waive that right when the waiver is 

voluntary, knowing, and intelligent.” State v. Petaway, 3d Dist. Logan No. 8-05-

11, 2006-Ohio-2941, ¶ 8, citing State v. Gibson, 45 Ohio St.2d 366 (1976), 

paragraph one of the syllabus, citing Faretta, 422 U.S. at 806, 95 S.Ct. at 2525. 

{¶13} “In order to establish an effective waiver of right to counsel, the trial 

court must make sufficient inquiry to determine whether defendant fully 

understands and intelligently relinquishes that right.” Gibson at paragraph two of 

the syllabus. 

[F]or the defendant’s waiver of counsel to be valid ‘“such waiver must 

be made with an apprehension 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.”’ 

State v. Owens, 3d Dist. Allen No. 1-07-66, 2008-Ohio-4161, ¶ 10, quoting Gibson

at 377, quoting Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316 (1948). 

However, the United States Supreme Court ‘ha[s] not * * * prescribed 

any formula or script to be read to a defendant who states that he elects 

to proceed without counsel. The information a defendant must 
Case No. 5-19-34 

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possess in order to make an intelligent election * * * will depend on a 

range of case-specific factors, including the defendant’s education or 

sophistication, the complex or easily grasped nature of the charge, and 

the stage of the proceeding.’ 

State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 101, quoting Iowa v. 

Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379 (2004). Stated differently, “the sufficiency 

of the trial court’s inquiry will depend on the totality of the circumstances * * *.” 

State v. Edmonds, 12th Dist. Warren No. CA2014-03-045, 2015-Ohio-2733, ¶ 26, 

citing City of Akron v. Ragle, 9th Dist. Summit No. 22137, 2005-Ohio-590, ¶ 11-

12. See State v. Alexander, 4th Dist. Ross No. 15CA3492, 2016-Ohio-5015, ¶ 4 

(“[A]ppellate courts should * * * independently examine the record to determine 

whether the totality of circumstances demonstrates a knowing, intelligent, and 

voluntary waiver of the defendant’s right to counsel.”), citing State v. Mootispaw, 

4th Dist. Highland No. 09CA33, 2010-Ohio-4772, ¶ 21. 

{¶14} In addition, “Crim.R. 44(A) provides that a criminal defendant 

charged with a serious offense is entitled to counsel ‘unless the defendant, after 

being fully advised of his right to assigned counsel, knowingly, intelligently, and 

voluntarily waives his right to counsel.’” Schleiger, 141 Ohio St.3d 67, 2014-Ohio3970, at ¶ 20, quoting Crim.R. 44(A). Further, “Crim.R. 44(C) provides that 

‘[w]aiver of counsel shall be in open court and the advice and waiver shall be 

recorded as provided in [Crim.R. 22]’” and that “in serious offense cases the waiver 

shall be in writing.” Id., quoting Crim.R. 44(C). Only substantial compliance with 
Case No. 5-19-34 

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Crim.R. 44(A) is required. See id., quoting State v. Martin, 103 Ohio St.3d 385, 

2004-Ohio-5471, ¶ 39. 

{¶15} “As the right to self-representation and the right to counsel are ‘two 

faces of the same coin,’ the assertion of one necessarily requires the waiver of the 

other.” United States v. Pryor, 842 F.3d 441, 448-449 (6th Cir.2016), citing United 

States v. Conder, 423 F.2d 904, 908 (6th Cir.1970), quoting United States v. 

Plattner, 330 F.2d 271, 276 (2d Cir.1964). Because the “dangers and disadvantages 

of self-representation during trial are so substantial,” a trial court must make a 

“searching or formal inquiry” before permitting a waiver of the right to counsel 

although no such inquiry is required for the correlative waiver of right to selfrepresentation.7

 Hill v. Curtin, 792 F.3d 670, 677 (6th Cir.2015) (en banc). 

{¶16} The important distinction between the two rights comes into play 

when considering the waiver analysis. See Brown v. Wainwright, 665 F.2d 607, 610 

(5th Cir.1982) (en banc). Unlike the right to counsel, the right of self-representation 

can be waived by a failure to assert the right. Id. at 610-611. “Even if a defendant 

asserts self-representation, the right may be waived through defendant’s subsequent 

conduct indicating he is vacillating on the issue or has abandoned his request 

 

7

 Some courts have justified the lack of inquiry by asserting that the right to counsel “attaches automatically 

and must be waived affirmatively to be lost, while the [right to self-representation] does ‘not attach unless 

and until it [i]s asserted.’” Stano v. Dugger, 921 F.2d 1125, 1143 (11th Cir.1991) (en banc) (second alteration 

in original), quoting Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir.1986); see also Brown v. 

Wainwright, 665 F.2d 607, 610 (5th Cir.1982) (en banc). 
Case No. 5-19-34 

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altogether.” Id. at 611, citing Chapman v. United States, 553 F.2d 893, (5th 

Cir.1977), fn.12, citing United States v. Bennett, 539 F.2d 45, 50-51 (10th Cir.1976), 

cert. denied, Bennet v. United States, 429 U.S. 925, 97 S.Ct. 327 (1976), United 

State v. Mahar, 550 F.2d 1005 (5th Cir.1977), and United States v. Montgomery, 

529 F.2d 1404, 1406 (10th Cir.1976), cert. denied, Montgomery v. United States, 

426 U.S. 908, 96 S.Ct. 2231 (1976). 

The right of self-representation, then, is waived if not asserted, while 

the right to counsel is not. Since the right of self-representation is 

waived more easily than the right to counsel at the outset, before 

assertion, it is reasonable to conclude it is more easily waived at a later 

point, after assertion. * * *. A waiver may be found if it reasonably 

appears to the trial court that defendant has abandoned his initial 

request for self-representation * * *. 

Id. Here, the record reveals that Patterson was abandoning his previously filed 

notices of self-representation. (See June 27, 2019 Tr. at 6-7); (Doc. Nos. 283, 284, 

312). 

{¶17} Because self-representation entails the waiver of the Sixth 

Amendment right to counsel, a trial court’s evaluation of a defendant’s request for 

self-representation “is fraught with the possibility of error.” Cross v. United States, 

893 F.2d 1287, 1290 (11th Cir.1990). 

A trial court can commit reversible constitutional error by either 

improperly granting a request to proceed pro se—and thereby 

depriving the individual of his right to counsel—or by denying a 

proper assertion of the right to represent oneself, and thereby violating 

Faretta. 
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Id., citing United States v. Fant, 890 F.2d 408, 409-410 (11th Cir.1989); Brown, 

665 F.2d at 610; Chapman, 553 F.2d at 892. 

In recognition of the thin line a trial court must traverse in evaluating 

demands to proceed pro se, and the knowledge that a shrewd litigant 

can exploit this difficult constitutional arena by making ambiguous 

self-representation claims or later waiver of self-representation to 

inject error into the record, an individual must clearly and 

unequivocally assert the desire to represent himself. 

Id., citing Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; Fant, 890 F.2d at 409; Orazio 

v. Dugger, 876 F.2d 1508, 1512 (11th Cir.1989); Brown, 665 F.2d at 610. 

{¶18} Without counsel, Patterson was in the position of relying upon the trial 

court’s advice regarding the nuances of the limited-resentencing-hearing process. 

The opportunity to consult with counsel would have been helpful for Patterson to 

discuss the interpretation of our previous rulings and to navigate the legal 

terminology being used by the trial court. Thus, the presence of counsel in this 

instance would not have been superfluous. See State v. Peace, 3d Dist. Hancock 

No. 5-12-04, 2012-Ohio-6118, ¶ 18, (concluding that “the presence of counsel is 

not superfluous in limited-resentencing hearings conducted to properly impose 

postrelease control.”). 

{¶19} We recognize that Patterson bears some responsibility for creating the 

murkiness of the issue before us by not clearly and unequivocally asserting his Sixth 

Amendment right to counsel after having previously clearly and unequivocally 

asserted his right to self-representation. Nevertheless, the trial court should have 
Case No. 5-19-34 

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halted the resentencing hearing to inquire and determine whether Patterson had 

changed his mind (as to self-representation). This not being the case, we agree that 

Patterson’s Sixth Amendment right to counsel was infringed. Consequently, we 

conclude that Patterson’s sentence is contrary to law. 

{¶20} Accordingly, we sustain Patterson’s assignment of error. 

{¶21} Having found error prejudicial to the appellant herein in the particulars 

assigned and argued in his assignment of error, we reverse the judgment of the trial 

court and remand for further proceedings consistent with this opinion. 

Judgment Reversed and 

 Cause Remanded 

PRESTON and WILLAMOWSKI, J.J., concur. 

/jlr