[Cite as State v. Lee , 2020-Ohio-3987.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO Plaintiff-Appellee

v. CHUCKIE M. LEE Defendant-Appellant : : : : : : : : : : Appellate Case No. 28125 Trial Court Case No. 2017-CR-785/1 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 7th day of August, 2020.

. . . . . . . . . . . MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 00693 84, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, 5th F loor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee STEPHEN P. HARDWICK, Atty. Reg. No. 0062932, 250 East Broad Str eet, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

DONOVAN, J.-2- {¶ 1} Chuckie M. Lee appeals from his September 10, 2018 conviction, following a jury trial, of the following offenses: Counts 1 and 3 - murde r (proximate result) in violation of R.C. 2903.02(B), unclassified felonies; Count 2 - felonious assault (serious harm), in violation of R.C. 2903.11(A)(1), a felony of the second degree; Counts 4-8 - felonious assault (deadly weapon), in violation of R.C 2903.11(A)(2), fel onies of the second degree; and Count 9 - discharge of a firearm on or near prohibited prem ises, in violation of R.C. 2923.162(A)(3)(C)(4), a felony of the first degree. A three-ye ar firearm specification accompanied each of these counts. Lee was further found guilty by the court of: Count 10 - having weapons while under disability (prior drug convicti on), in violation of R.C. 2923.13(A)(3), a felony of the third degree; and Count 11 - hav ing weapons while under disability (prior offense of violence), in violation of R.C. 29 23.13(A)(2), a felony of the third degree. {¶ 2} At sentencing, the court merged Counts 2 through 4 into Count 1 , and the State elected to proceed to sentencing on Count 1; the court me rged Count 11 into Count 10, and the State elected to proceed on Count 10. The court se ntenced Lee to 15 years to life on Count 1; five years each on Counts 5, 7, 8, and 9; e ight years on Count 6; and three years on Count 10. The court ordered Count 10 to be serv ed concurrently to all other counts, and Counts 1, 5, 6, 7, 8, and 9 to be served cons ecutively to each other. The court ordered that additional terms of three years on each of the firearm specifications be served consecutively and prior to the definite term of impri sonment, for an aggregate sentence of 61 years to life. {¶ 3} The record before us demonstrates structural error in the trial court’s determination that Lee’s waiver of his right to counsel was val id. Lee asserted his right-3- to self-representation but further argued that he was unprepare d to proceed to trial in a few days due to his inability to obtain discovery. Lee conditi oned his waiver upon a continuance. Since Lee’s waiver was equivocal and unclear, the judgment of the trial court is reversed, and the matter is remanded for proceedings c onsistent with this opinion. {¶ 4} Lee was indicted on April 7, 2017, and his retained attorney, M ichael Pentecost, entered a notice of appearance the same day. Lee en tered a plea of not guilty the following day, and he executed a time waiver on Apri l 16, 2017. {¶ 5} On August 28, 2017, Lee filed a motion to sever proceedings fro m his codefendant, Kara Parisi-King. Lee supplemented the motion to se ver on October 13, 2017. {¶ 6} On December 6, 2017, a different attorney, Bradley Baldwin, wa s appointed to represent Lee, because he could not afford retained counsel. On February 19, 2018, Lee’s appointed counsel filed motions for a plea of not guilty by reason of insanity (NGRI) and for a psychiatric exam. A hearing was held on the NGRI ple a on February 21, 2018. At the hearing, during direct examination of Lee by defense cou nsel, Lee testified that he and his current defense counsel had discussed the NGRI plea and Lee’s mental state from the time counsel was appointed to the case, and that they had discussed discovery over the past several months, including hours of video and disc overy that had been produced very recently. On cross-examination by the prosecutor , Lee testified that his prior attorney had not done anything Lee had asked “in ten whol e months,” and had not provided him with discovery as his new attorney had done. {¶ 7} At the conclusion of the hearing, the court overruled Lee’s mot ion for leave to file a plea of not guilty by reason of insanity, and it issu ed a written decision on February-4- 26, 2018. Defense c ounsel filed a motion to withdraw on February 23, 2018, asserti ng that the attorney-client relationship had “become an adversaria l one”; the court granted the motion on February 26, 2018. Trial was rescheduled for Jun e 18, 2018. {¶ 8} On May 8, 2018, a second attorney was appointed for Lee, Anthon y VanNoy, replacing Baldwin; VanNoy filed a motion for a continuance of t he June 18, 2018 trial date, citing a scheduling conflict. The State opposed the moti on, noting that Lee had “had three attorneys appointed to represent him in the last yea r causing a delay each time.” {¶ 9} On May 14, 2018, counsel for Lee filed a notice of filing a ple a of NGRI and requesting a sanity evaluation. The State opposed the motion, noting that Lee already had a pending motion to continue the trial date and that, if th e court granted the motion for an NGRI evaluation, a further continuation of the trial cou rt would be needed. The State stated that it “was under the impression that there would be no more continuances in this case as it has been on this Court’s docket for over a y ear.” The court granted the motion for a continuance and rescheduled the trial for August 1 3, 2018. The court also ordered a sanity evaluation for Lee. (The report from any eval uation is not in our record, if in fact one was done.) {¶ 10} On July 19, 2018, counsel for Lee filed a motion for disclosure of grand jury transcripts; the State opposed the motion. On August 2, 2018, the court overruled the motion. On the same day, Lee filed pro se motions for the gran d jury transcripts, to preserve evidence, for an expert witness, and for an evidentiar y hearing. {¶ 11} On Thursday, August 9, 2018, Lee’s defense counsel, VanNoy., an d his cocounsel, Kimberly Melchor, each filed motions to withdraw. The following day, Lee filed-5- a pro se document entitled “Affidavit of facts Rescinding, Revo king and cancelling Attorney Anthony VanNoy.” The trial court conducted a hearing on the motions to withdraw on August 9, 2018. VanNoy told the court that Lee had advised him that he wanted to represent himself, which prompted him and his co-coun sel to file their motions to withdraw. {¶ 12} At the hearing, the court advised Lee of numerous factors relev ant to the waiver of a right to counsel: 1) that a criminal defendant has a right to assistance of counsel for his defense; 2) that a defendant has the independen t constitutional right of self-representation; 3) that a defendant may proceed to defend himself without the benefit of counsel when he voluntarily, knowingly, and intelligently el ects to do so; 4) that courts “are to indulge every reasonable presumption against the waiver of a fundamental constitutional right,” including the right to counsel; 5) that the waiver must affirmatively appear in the record; 6) that the State bears the burden of ove rcoming presumptions against a valid waiver; 7) that, pursuant to Crim.R. 44(C), a d efendant’s waiver of counsel must be made in open court and recorded as provided in Crim.R. 22; 8) that a valid waiver of counsel “must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishmen ts thereunder, possible defenses to the charges and circumstances in mitigation thereof , and all other facts essential to a broad understanding of the whole matter”; 9) tha t the court must make a sufficient inquiry to determine “whether the defendant fully un derstands and relinquished the right to counsel”; 10) that the court had an affirmative du ty to engage in a dialogue with the defendant to “inform him of the nature of the charges, any included offenses, the range of possible punishments, any possible defenses, and any o ther facts which are-6- essential for a total understanding of this situation”; and 11) that Lee must “be made aware of the dangers and disadv antages of self representation.” {¶ 13} Lee acknowledged his understanding of his right to counsel, as well as the court’s advisement that, if he qualified, the State would appoi nt and pay for a lawyer to advise him in the court proceedings. The court advised Lee tha t “a lawyer has the experience and knowledge of the entire trial process” and could call witnesses for him, question witnesses against him, and present evidence on his beh alf. The court advised Lee that, in a jury trial, a lawyer would question potential ju rors, object to questions that were improper, would have the experience to know which jurors w ould be in his best interest, and could advise him of the harm and consequences of what he said in court and what he had a right not to say. {¶ 14} Lee acknowledged his understanding of the court’s advisement th at a lawyer knows rules of evidence and what evidence can or cannot come in at trial and knows how to conduct a voir dire examination and the grounds fo r excusing a juror for cause, as well as other complex evidentiary rules. Lee further acknowledged his understanding of the court’s advisement that, in addition to th e rules of evidence, a lawyer is trained in the other rules of law and Ohio criminal procedur e, including rules about requesting a mistrial, proper grounds for a mistrial, how to re quest and object to jury instructions, how to proffer evidence to protect the record for appeal, and how to move for judgment for acquittal, and a lawyer “will argue for your s ide during the whole trial and present the best legal argument” for the defense. {¶ 15} The court advised Lee that he would not get any “special treat ment” from the Court because he was representing himself. In response to a question by Lee, the-7- following exchange occurred: THE COURT: Well, we’re going to explain that further, but generally, because you are not a trained legal professional, an d because you had an opportunity to have a trained legal professional, we ’re not going give you any special breaks or to - - for example, if you ask a ny objectionable question, we’re not going to explain that to you, because you don’t have legal training. We’re not going to explain to you h ow to ask it where it might not be objectionable. Do you understand that? MR. LEE: Yes, I do. May I ask a question about it? THE COURT: Um-um. MR. LEE: In a situation like that, am I permitted to confer wi th my standby counsel? THE COURT: * * * your standby counsel will be there to ask lega l questions. You can confer with them, but you may not delay the trial in order to do so. {¶ 16} The court advised Lee that if he represented himself, he would also be limited to the resources that were available to him while in cu stody. “A lawyer has less restriction in researching your defense, he’s able to avail him self of the law library and so forth, and any prior cases he has had back in his office, in hi s files, that he can refer to, and the like.” {¶ 17} When Lee asked if he would have access to a law library in the course of his trial, the court advised him that during trial he would be in the custody of the sheriff’s department, that it would be up to the sheriff’s department whe ther it had the time or the-8- manpower to take him to the library, and that the Court did not have any influence over what the sheriff’s department would do. However, the court adv ised Lee that it would give him an opportunity to inquire as to the sheriff’s departme nt’s policies regarding such transportation before he made his “full and final decision.” {¶ 18} The court further advised Lee th at the State would present its case against him using “an experienced lawyer.” The court advised Lee that, if he were disruptive in the courtroom, the court could end his self-representation and remove him from the courtroom, and the trial would continue without him present. T he court advised Lee that he would be limited in his ability to move around the courtroom , because he was in custody, and that the bailiff “would have to facilitate any evi dence [he] wish[ed] to show to the jury.” Lee indicated his understanding of all of these things. The court advised Lee that if a “stay away order” were in effect, he would be pro hibited from contacting the victim and any other witnesses to whom the order applied, where as a lawyer would be allowed “to speak to these people and question them regarding t heir testimony.” {¶ 19} Finally, the court advised Lee that if he were convicted after representing himself, he could not claim his own incompetence as a basis for an appeal; Lee acknowledged his understanding. {¶ 20} Lee advised the court that he understood the charges against hi m and all of the possible penalties. The prosecutor then recited all of the charges against Lee and the maximum prison sentences for each. In response to a questi on by the court, Lee indicated his understanding that he faced “a maximum of somewhe re around 73 years to life” in prison. The court noted, “that’s why we’re concerned that you’re giving up your right to a lawyer.”-9- {¶ 21} The court further stated: “I’ve heard self-defense and NGRI, bu t I don’t know what, if any, of these you’re going to pursue. But a lawyer kn ows how to present those defenses, and * * * at least one of them, is fairly technical, and do you understand that for you to present them without that technical knowledge might be d amaging to your case?” Lee acknowledged his understanding. Lee further acknowledged h is understanding that the court could not tell him how he should try his case or even advise him about it or help him in any way. The court advised Lee that the court’s “sworn duty” was “to be fair to each side.” {¶ 22} In the course of a series of questions, the court ascertained t hat Lee was able to read and write and that he had obtained his GED. Lee a dvised the court that he has been diagnosed with depression, anxiety, and PTSD. Lee sta ted that no one advised him not to use a lawyer or that a jury would be more sy mpathetic toward him if he represented himself. Lee acknowledged his understanding tha t appointed counsel would represent him at no cost, and he stated that he had never served as his own attorney. When asked if he had any questions related to appoin tment of a lawyer to represent him, Lee responded, “No.” {¶ 23} When asked if he understood the “danger and disadvantages” of representing himself in court, Lee indicated that his only conc ern was that he would be hindered from properly defending himself because of lack of “le gal access.” The court responded that, “at the appropriate time,” Lee would be given t he “right to object to that and preserve that for appeal.” {¶ 24} The court asked Lee if, in light of the penalties that he might suffer if he were found guilty and all the difficulties of representing hims elf, it was still his desire to-10- represent himself and to give up his right to be represented bya lawyer. Lee responded affirmatively. The court then advised Lee that “standby counse l” was “not there to conduct legal research for [him], but within restrictions, [cou ld] help [him] answer procedural questions during the trial”; Lee acknowledged his un derstanding. {¶ 25} At the conclusion of the colloquy, the court found that Lee had knowingly and voluntarily waived his right to counsel and stated that it would permit him to represent himself “at the trial of this matter beginning at 8:30 on Monda y morning.” {¶ 26} After a discussion about the appearance of Lee’s name on the wa iver of counsel form, the following exchange occurred: THE COURT: * * * [T]he Court is satisfied with how [the waiver of counsel form has] been prepared. MR. LEE: The Court is satisfied - - So it’s a force -- it’s -- basically I’m being forced into this contract right here. [DEFENSE COUNSEL]: No, you’re not. He’s saying you don’t have to sign - - MR. LEE: I don’t consent to - - I don’t consent to the contrac t. [DEFENSE COUNSEL]: Right, so if you don’t consent to it, the n you’re going to have a - - you’re going to have a lawyer repres ent you. * * * MR. LEE: This is the problem. * * * I have representation at one point * * *. Now, the reason I a m choosing to represent myself is because I am not being allowed to get all of the discovery that I’m sup posed to have,-11- and I (indiscernible), because I should be allowed to view ever ything that’s being said against me, okay. And I put a motion in for it, but I was told, because my attorney didn’t put the motion in, then * * * it cou ldn’t be a decision on this motion, right? And I understand that. So in order for me to have that kind of power, I have to represent myself. If I don’t represent myself, I’m under the impression that if I don’t represent myself, then when these motions get put in, if * * * my attorney don’t put it in, it won’t get done. So when I sit here and I a sk the Court, I say I would like to view the videos, right? Everybody else has them; everybody else has seen them. Everybody else has access to the m but me, the Defendant. * * * * * * So when I get something from the prosecutor that’s like this, that I got labeled with 20 different names, 20 different people give m e 20 different statements, and then I get the actual statements from one perso n that’s just as thick as the statements from 20 people, and I realize that t hese are the true original statements given by the people in this discovery that was provided to me from the prosecutor, then I have a problem becau se I say, okay, this is not what’s said. Now when I read these statements, the original statements, tha t has been audio recorded that I know exists, and then I go back and I find this woman, her name, and the statements that’s made in here, and I realize that out of 65 pages, the prosecution has - - or detectives hav e took the-12- same statement and bundled it into one paragraph. And it says nothing about the things or the actual occurrence of the events that ac tually happened. It only says what it’s believed that Chuckie Lee did . * * * * * * I’m not an attorney; I’m not a lawyer. But I do know th at I have a right to get the discovery and be allowed to view this discov ery and inspect this discovery, okay. And that’s the only thing I’m asking. I ’m asking that, at least, if I’m going to trial, let it be a fair trial. I get on the stand -- or somebody get on the stand and say som ething about me, and I say, oh, well, this doesn’t exist, I never hear d this before. Well, your attorney do, your attorney got it, why haven’t you s een it? It becomes an issue like this. * * * But when I’m asking to at lea st see these things or inspect these things for myself because of a time iss ue, because a person doesn’t have time to do it, then it’s a issue, because now I’m being deprived a right to view or inspect the things that I need to i nspect. * * * * * * THE COURT: Mr. Lee, let me interrupt you and tell you that num ber one - - three things. Number one, make no mistake, we are goin g to trial on Monday. Okay. You understand that. Number two, I’m wondering, as I hear you talk, if you’d rather represent yourself on your appeal rather than the trial, becaus e you’ve got all the objections after now three lawyers and so forth, that y ou’d like somebody besides me, apparently, to hear. So - - and finally and I’ll just mention this; I don’t normall y do this.-13- But I’ll tell you that we have for you perhaps the finest lawye r in Southern Ohio, certainly the finest lawyer that’s ever tried a defense c ase in this courtroom, sitting with you, and if you don’t want him to repre sent you, that is entirely up to you, and we can’t, try as we might, we’re not going to change your mind. So do you want to sign the waiver of counsel or no? MR. LEE: I would like to be given the opportunity to see the discovery. * * * * * * MR. LEE: * * * All I’m saying is that I would like to see the discovery. I would like to see the discovery in its entirety, and not bits and pieces, not notes. I’m getting notes. * * * * * * THE COURT: * * * I think that maybe where Mr. Lee is confused is after each of the prior times when there was change of counsel, we vacated the trial date and gave that counsel time to - - and so he migh t be thinking that now, at the eleventh hour, he’s going to choose himself fo r a lawyer and be able to vacate the trial date, and so Mr. Lee, if you we re thinking of that, I - - I’ve advised you that’s not going to happen. * * * MR. LEE: I would like to ask a question. The first time I seen you, the very first time that I asked yo u and tell you that I wanted to see the videos of every witness that has a audio/video-14- against me - - THE COURT: Mr. Lee, if you’d like to talk this over with your - - your lawyers, we’ll permit you to do that in private. * * * MR. LEE: I mean, I understand what you’re saying, and you kno w, it’s for a private attorney/client confidentiality, but the que stion I - - what I just asked is just the matter of did I ask to see them when I f irst spoke to you. To - - THE COURT: Once again, Mr. Lee, you’re talking about appellate issues. * * * I’ve indicated to you we’re not going to postpone the trial to give you a chance to get what you think you haven’t received yet, an d we’re going to proceed on Monday with competent counsel, or with you, depending on your decision here today. * * * (Pause in proceedings) THE COURT: * * *Well, asking you one final time, Mr. Lee, are y ou going to sign the waiver of counsel or not today? MR. LEE: I have to ask one question. In signing this waiver, will I then be allowed to view these videos and go over these things a nd look at -- so no as to even if I’m my own counsel, I still won’t be abl e to have discovery, right? Is that - - just for the record, because we on the record. I just want to know, like, will I be able to go over - - THE COURT: The Court has no control over that. Whether you are able to view discovery or not, that is a matter between you and your counsel, and the Court declines to interfere with that * * *-15- MR. LEE: But if I am counsel * * * * * * MR. LEE: -- then it’s my understanding that I should be able to have a right - - THE COURT: * * * The exercise of those rights, Mr. Lee, must b e made in a timely fashion. We let you by once with that on the NGRI filing, where we vacated a trial date at the eleventh hour. We are not going to entertain anything that will delay this trial any further * * * MR. LEE: * * * So basically, if I’m representing myself, I stil l can’t see the discovery, is what’s being said? THE COURT: Oh, I’m sure that prior counsel will provide you wi th that information, whether they will not be any longer required to or able, frankly, to provide information on which you might review or li sten to that, but we need to know whether you’re going to - - I’ve answered a ll the questions I’m going to answer. * * * MR. LEE: I would like to defend myself, and at the same time, I would like to be able to see the videos. I would like to be ab le to get the original interview documents, not this. This is not * * * what was said in the interview. * * * I’m not asking for nothing that’s not availabl e. I’m asking for something that it’s in - - it’s in the hands of the prosecutor. [DEFENSE COUNSEL]: They didn’t transcribe the video. MR. LEE: So if they didn’t transcribe the video, then allow me to-16- see the video. * * * (Pause in proc eedings) THE COURT: Counsel, while you are still counsel, have we a signed waiver? * * * [DEFENSE COUNSEL]: We do not have a signed waiver. THE COURT: * * * Mr. Lee, last chance. Are you going to sign that waiver? MR. LEE: You’re telling me * * * I have all these disadvantage s, yet I don’t even, even if I sign the waiver, I don’t even have the advantage of being able to see and go through and look at the evidence that’ s against me that’s part of the discovery, so either way it go, * * * I got two brick walls, one in front of me, one in the back of me, and I can’t go anywh ere. * * * [I]f I go in the courtroom off of the statements on this piece of pa per, without these right here, which is the statements that I can really fig ht - - THE COURT: Ms. Mel[chor] and Mr. VanNoy, I know that you have been preparing to try this case, since you were appointed on it . We’re going to find at this point that, because of discovery issues, the Defendant is not willing to waive his right to trial by counsel. We will - - MR. LEE: That’s not what I said. THE COURT: -- proceed to trial * * * at 8:30 on Monday morning -- MR. LEE: That’s not what I said, sir. THE COURT: - - with counsel.-17- MR. LEE: That’s not what I said. THE COURT: Court’s in recess. MR. LEE: Have you seen the videos? THE BAILIFF: All rise. (Recess taken) THE BAILIFF: This Court is again in session. * * * THE COURT: * * * Beginning at approximately ten minutes after 3, this Court bega n a dialogue with the Defendant regarding his professed desire to p roceed in this matter to trial on Monday without counsel. We, during tha t time period, discussed the advantages of proceeding with counsel, the disadv antages of proceeding without counsel, and Mr. Lee indicated that he un derstood all of those, but after some 20 minutes, I would estimate, discussi on ending at approximately ten minutes after 3 [sic], the Court found that d ue to Mr. Lee’s perceived difficulties with discovery that -- the Court conclud ed his prolonged reluctance to sign the waiver indicated his desire to proceed with counsel just seven or eight minutes ago at -- or about ten minu tes after we recessed, we learned that Mr. Lee is ready to sign the waiver o f counsel. * * * [DEFENSE COUNSEL]: Your Honor, Mr. Lee would like to execute the waiver of counsel. THE COURT: Okay. Very well. [DEFENSE COUNSEL]: Mr. Lee?-18- (Defendant signs document) MR. LEE: For the record, * * * I agree to represent the Defend ant, which is myself, but not to proceed, because I’m not ready . I haven’t seen the discovery, * * * there’s a lot of things in my discovery th at I don’t have in my possession. THE COURT: Can you see this document? Is that your signature on there? MR. LEE: I can’t see this from - - I can’t see it from up here

. THE COURT: If you could stand a little closer so he can see it and show it to him. (R eading document) MR. LEE: Okay, but it doesn’t say anything about me being read y to proceed. I don’t have the discovery. THE COURT: We’re [sic] just indicated that, at this point, whe ther you want to proceed without counsel. MR. LEE: I want to proceed in being counsel to represent mysel f. I am not ready for trial, because I don’t have the discovery. THE COURT: Very well. Is that your signature that appears on that document? MR. LEE: Yeah, that’s the name signed. THE COURT: The Court approves this, finding the Defendant has knowingly and voluntarily waived his right to be represented bycounsel. As indicated prev iously, we’ll proceed to tr ial at 8:30 on Mond ay morning.-19- Mr. VanNoy, the Court will then grant your motion to withdraw as trial counsel and appoint you as standby counsel for procedural issue s. * * * (Emphasis added.) {¶ 27} Lee’s August 9, 2018 Waiver of Counsel, on which his printed na me and the trial judge’s signature appear, states: Now comes the Defendant, Chuckie Lee, pursuant to Ohio Criminal Rule 44(C), and after having been fully advised of my right to have assigned counsel for the above captioned case, and after being fully adv ised by the Court of the nature of the charges against me, the statutory of fenses within, the range of allowable punishments for each offense, possible d efenses,mitigation, and the general dangers and disadvantages of selfrepresentation, do hereby make a knowing, voluntary and intelli gent waiver of my right to counsel. I understand that I will represent myself at all future stages of the criminal prosecution. This would include any motions, hearings , and/or trial. No one has forced, threatened or promised me anything i n order for me to waive my right to counsel. {¶ 28} On August 13, 2018 (the day of trial), Lee filed pro se motions for transcripts of the grand jury proceedings, to preserve evidence, for an exp ert witness, for an evidentiary hearing, and for a continuance. In his motion for a continuance, Lee asserted that the request was for good cause so he could “adequately pre pare his defense.” Lee argued that he had “not been afforded the opportunity” to inspe ct video surveillance or to listened to audio 911 calls. Lee also asserted that the record “clearly reflect[ed] that-20- discovery ha[d] been withheld” from him by previous attorneys, and that it was his belief that his inability to review all the evidence the State intende d to use against him at trial would greatly impair his defense and deprive him of his “right to Confrontation.” Lee requested “access to media, to view video surveillance from bar , listen to 911 calls, receive discovery, and compel witnesses to take the stand that worked the morning shift of the day in question of the alleged event.” He further sough t “text messages from personal cell phone * * *.” {¶ 29} The trial began as scheduled on August 13, 2018. Outside the p resence of the jury, prior to voir dire, the court noted that Lee had f iled a number of motions that morning, many of which had been previously overruled. Regarding Lee’s motion for a psychological/psychiatric expert, the court found that that was “untimely made and would cause undue delay” and that such a matter “ought to have been a dvanced far in advance of trial”; it overruled the motion. {¶ 30} The following exchange occurred: THE COURT: * * * Mr. Lee, we’re going to advise you that we understand that you have or may have an objection to whatever d iscovery you have received or failed to receive. * * * * * * THE COURT: Have you any objections as to discovery which you claim has not been provided or not been timely provided? MR. LEE: Yes, I do. * * * * * * MR. LEE: * * * I don’t know it may seem like that I filed these motions-21- in an untimely manner but I have proof that I actually sent the se motions to my previous attorneys because these are the same motions that t hey had turned over to Mr. VanNoy. THE COURT: And for the record, the Court has heard this frequently and for a long time. And in light of the demonstrat ed history in this matter of last minute requests for the purpose of delaying trial, the Court has - - that argument would be considered, but not where it doe sn’t change the Court’s mind. MR. LEE: I was trying to address it but I didn’t get a chance to really address it. * * * THE COURT: * * * Well, go ahead. MR. LEE: Every motion that I filed I got previous filings or previous instructions to have my attorneys file and this is dated back t o last year, all the way to 2017 up until I think the most recent was back in li ke January. I got the motions here * * * -- they have been copied by the prev ious attorneys but they never put the motions in. * * * All I can do when I’m sitting in this room with my attorney is tell him, listen, * * * I need you to file this motion for me. I can’t make them do it. * * * That’s * * * why I choose to * * * represent myself because it seemed like some of these things that I needed to be done, it wouldn’tbe done no matter how many times I ask or what I ask, it’s just like the N GRI. * * * I * * * told Michael Pentecost, and this is dated back to April of last year, and it’s 2017 where I told him, I said, “Listen, * * * I need you t o * * * go to the-22- Nova [H]ouse, go to the federal building, * * * or fax them jus t to get the paperwork back and I would * * * sign whatever consent or relea se form I needed to sign. He didn’t do it so what I did, I had to write the judge myself. That’s when I found out * * * well this is maybe go this route when I end up writing the judge myself, I ended up getting[ ] the same papers that I had been asking them for which is why the NGRI was granted on the s econd motion. That’s the same scenario with the rest of these motions that I have filed or that I have asked to be filed and they’re not getting filed by the attorneys that I’m asking to file them, which is both Bradley B aldwin and Michael Pentecost. And like I said, I got all the records righ t here to show that I actually asked them to file. They got them in they file s [sic]. They got the motions that I did pro se and they say well, let me do it, let me see your motions; I’m gonna copy them. But they never did nothing with them. So it’s not that I didn’t do it in a timely manner, it’s that the previous attorneys wouldn’t represent my position. They wouldn’t - - th e things that I was asking them to do, they was not allowing me to do. It’s like these videos. I been asking to see these videos since April of last year. It’s no reason why I’ve only seen two or three videos. Then * * * I’m getting field notes from officers and detective s that’s saying one thing just - - just prime example. Here’s one, and you got statements given to - - from [State’s witness] Candace Allen, D etective David House where she says one thing then on another day she sa y-23- something totally different, but this is a four paragraph state ment. This is the real discovery. The discovery is * * * 65 pages l ong. And then there’s discovery - - I did a match up last night and everything that’s highlighted is the difference in another discovery. * * * So I’m trying to figure out why this say something different t han the other transcribed one and then that say something different tha n what the videos say. * * * It’s contradictions on all three, but they su pposed to be transcribed. * * * I got a brief right here. Everybody who got different statements by different officers and different detectives. And in every statement they saying something totally different. That’s why I put in the motion for the grand jury transcripts for impeachment purposes because if these are different and they ‘pos ed to be the same thing, the i nterview was different than what these say and then the field notes is diffe rent than what the interviews say * * * I mean, I’m not saying, you know, bad police work, misconduct, or none of that. But what I will do, I’ma [sic] ra ise the issue because I don’t see how things change from one person to the ne xt. I don’t know if it’s going through the hands and we gonna take this out , we gonna take this out. Because like I said, I cross-referenced it with things and this is not nothing. * * * I been in jail 16 months. This was given to me in disco very from one lawyer to the next lawyer to the next lawyer and it’s chang ed in between lawyers. And like I said, I have everything right here to say that. [Lee identified six State’s witnesses who he claims gave diffe rent-24- statements at different times.] So what I see is, is that when I’m looking over the subpoena l ist and I see the 75 witnesses on my subpoena list. * * * And when I’m [sic] asked them for these videos, all of sudden they saying that, * * * we ll, these are just from field notes. * * * So * * * let me see the field note s so I can cross them with this because in a murder investigation and my underst anding, interviews are ‘posed to be recorded. * * * I have asked for th at. * * * [S]o when they doing these interviews, if they are ‘pose d to be recorded, I don’t understand why it’s the ones that’s contradic tory to each other that’s not the recorded ones and then the ones that are r ecorded, I’m not being allowed to see them. You got [two specific witnesses] that’s in the same car. Firs t, she says I’m crossing the street from one corner to the next, the n ext she say she seen me just standing in the middle of the street and then in the statement, he say she’s screaming, “They chasing us.” * * * Am I on the car? Am I crossing the street?” * * * I’m getting so many dif ferent state - - half of the stuff that’s in here I really don’t believe. I really don’t believe and I feel like under the compulsory pr ocess, which is right here, it gives the accused the right to call for evidence in his favor, to be able to impeach is in my favor. * * * I have not had this. I’m representing myself. * * * THE COURT: * * * We’re going to have to ask you, Mr. Lee, to s tate concisely * * * what your objections are regarding discovery * * *.-25- MR. LEE: * * * My objections are my 6th Amendment rights are b eing violated believe [sic] I’m not given the opportunity and my due process, for the record, I’m not given * * * discovery in its full, full dis closure. I’m getting’ [sic] bits and pieces of what they want to give me. And under the 6th Amendment * * * I’m ‘posed to be provided that. * * * It’s my r ight to be able to personally inspect it for my own self. * * * [THE PROSECUTOR] Your Honor, to address - - * * * [THE PROSECUTOR]: - - address the discovery issue, the state ha s provided Mr. Lee * * * ten copies, these are electronically fil ed discovery receipts of all the discovery that the state has provided to th e defense throughout the course of this case which has been going on over a year * * *. The itemized list shows everything the state has turned over. We have fully complied with Criminal Rule 16 in that regard. * * * So Mr. Lee’s argument seems to be more in gear (sic) of impeachment testimony that will be brought forth during the tri al phase of this during the witnesses’ testimony. * * * {¶ 31} After advising Lee that he would be permitted to attend the jur y view, the court asked Lee, “Can you assure the Court at this time that yo u continue to want to represent yourself in this case without a lawyer?” Lee respond ed, “Yes.” {¶ 32} When the court indicated it was moving on to voir dire examinat ion, Lee-26- asked a question, leading to the following exchange: MR. LEE: * * * I’m not able to view the rest of my discovery, just for the record? I just want to know is this - - that’s the final v erdict that I will not be able to see these videos and none of that, or be able to inspect for my own personal inspection. * * * Is that the judge’s decision in this matter, sir? THE COURT: Well, that’s an appellate issue. If the prosecuting attorney has failed to provide you or your attorney with - - MR. LEE: I am my attorney. THE COURT: * * * Hear me out and then - - if the prosecuting attorney has failed to provide your lawyer or you with all lawf ul discovery, or if your lawyer or any of your previous lawyers in this case hav e failed to provide you with the discovery which they have received in this case, then in each of those cases, those are appellate issues which we are not going to deal with at the trial level. * * * So, the discovery issues [sic] over. You’ve made your objections as to th e discovery and we’ll not hear abo ut them again. Yes? MR. LEE: It was the point when I was making my objection I was cut off before I could finish my objection. * * * THE COURT: - - for the record, to clarify, your objection regar ding discovery is that either you have not been given it or it was n ot given to you-27- in a timely fashion to prepare for trial; is that right? MR. LEE: I have not seen it. My attorney has been given it - - THE COURT: I.e., it was not given to you? MR. LEE: Right. No, it was not given to me. * * * THE COURT: * * * And that’s your objection? MR. LEE: That is my objection. My objection is I don’t have t he discovery. Previous attorneys had it and they did not let me v iew it. * * * THE COURT: And I understand that objection. * * * THE COURT: And I think you’ve made it for the record. {¶ 33} After a discussion regarding Lee’s motion for an expert witness , the following exchange occurred: THE COURT: And, Mr. Lee, the other thing that you would know i f you were an attorney is that if you have things that you want d one, like the time to prepare your own defense representing yourself, you got to do that in a timely fashion well in advance and you failed to do that. We’ve continued this matter three times now and we’re not goin g to continue it again and we’ve explained that to you and - - MR. LEE: The only reason why I’m representing myself is becaus e it wasn’t getting done. * * * I’m being denied a chance to do i t on my own. You right, I’m not an attorney. That’s why it’s so much more h arder for me to do it.-28- So I get this stuff and in three days I’m supposed to be ready for trial and I don’t even know what’s out there. I ain’t even seen half the videos that they got. Mr. VanNoy showed me a stack of videos yesterda y in his hand. I don’t know what’s on them videos. All I know is the o ne or two that I have seen, it’s not what’s on this paper and what I see on this paper, it’s changed from * * * officer to officer with the same person . * * * THE COURT: Mr. Lee, once again, you’ve already made your objection about not getting discovery. * * * MR. LEE: What about the motion to preserve evidence for appel late purposes? I filed a motion for that. * * * THE COURT: Well, we’ll grant that motion to the extent that i t means anything at this point. * * * * * * THE COURT: Anything else? MR. LEE: The motion should have been here a couple few days ago; I gave it to the sheriffs. And that was - - you told me * * * last time when I was asking about me getting[ ] to law library. You said , everything I had to do, I had to do through the sheriffs. I gave him a mo tion. * * * MR. LEE: So, I don’t know if you got it on your desk this mor ning or however that went but it was sent to the Clerk of Courts, and t hat was a-29- motion - - that was the actual motion for continuance in this m atter because of these reasons. * * * THE COURT: Very well. The motio n for continuance if not made in writing, certainly now made verbally is overruled pursuant t o what the Court has indicated repeatedly in this matter over the last wee k. {¶ 34} The case proceeded to trial, with Lee representing himself. He was found guilty by the jury of two counts of murder, six counts of felon ious assault, and one count of discharging a firearm at or near a prohibited premises. He was also found guilty by the court of two counts of having weapons under disability. Af ter merger of several offenses, Lee was sentenced to an aggregate term of 61 years, a s discussed above. {¶ 35} Lee’s first assignment of error is as follows: THE TRIAL COURT ERRED BY DENYING MR. LEE HIS RIGHT TO COUNSEL BECAUSE HIS WAIVER OF COUNSEL WAS NOT KNOWING, INTELLIGENT, AND VOLUNTARY. * * * {¶ 36} Lee asserts that it is clear from the record that he did not ag ree to represent himself at a trial that would begin only days after the trial c ourt accepted his waiver of counsel. According to Lee, his assertion of his right to self- representation, but not without a continuance, wass not a clear and unequivocal asserti on of the right. {¶ 37} The State responds that, as a whole, the record and “particular ly the protracted [inquiry] conducted by the trial court” show that Le e’s decision to forego representation by counsel and to instead represent himself at t rial was made knowingly, intelligently, and voluntarily. The State asserts that, during the hearing on his motion to represent himself, Lee acknowledged his full understanding of t he advantages of being-30- represented by counsel and the disadvantages of self-representa tion, but “indicated unequivocally that it was his desire to represent himself,” and despite learning that the trial would not be continued, Lee “never requested to withdraw his waiver of counsel” or gave any indication that he had changed his mind about represen ting himself. The State asserts that, despite the discovery dispute and his clear desir e that the trial be continued, Lee never conditioned his waiver of counsel on being granted a continuance, and his claims to the contrary are “simply unsubstantiated.” {¶ 38} The State argues that “Lee does not challenge the fact that, be fore allowing him to represent himself, the trial court fully explained to Le e the nature of the charges against him, the advantages of allowing counsel to represent hi m, and the dangers and disadvantages of proceeding to trial on his own”; therefore, Le e “knew what he was doing and was fully aware of the risks of doing it.” According to th e State, Lee’s only basis for claiming that his waiver of counsel was not knowing, intelligen t, and voluntary is that his waiver was “ conditioned on the trial being continued.” According to the State, Lee ga ve no indication that, if the court insisted on proceeding with th e August 13, 2018, jury trial as scheduled, then he wanted to withdraw his waiver and proceed ing to trial with counsel. The State asserts that Lee advised the court that he “wanted to represent himself and he wanted the trial continued; his request for one was never condi tioned on the trial court granting the other.” In fact, on the morning of trial, “with t he jury waiting and his hope for a continuance gone for good, Lee was asked a final time if he s till wanted to represent himself without a lawyer,” and he said that he did. Thus, the State concludes that Lee’s “contention that his waiver of counsel was conditioned on the t rial also being continued is unsubstantiated and belied by the record.-31- {¶ 39} In reply, Lee argues that he did not merely tell the trial cour t he wanted to represent himself and that he wanted a continuance for trial sc heduled within days; he ‘specifically told the court that if he did not get a continuan ce, he was not ready to represent himself .” He draws our attention to his assertion in the trial court that he agreed to represent himself, but not to proceed, because he was “not ready” to represent himself. Lee argues that his waiver was “unclear and equivocal ,” and that a valid waiver must be both clear and unequivocal. {¶ 40} We conduct an independent review to determine whether a defend ant voluntarily, knowingly, and intelligently waived his right to c ounsel based on the totality of the circumstances. “Courts are to indulge every reasonable pres umption against the waiver of a fundamental constitutional right including the righ t to be represented by counsel.” State v. Dyer , 117 Ohio App.3d 92, 95, 689 N.E.2d 1034 (1996). We appreciate that waiver of counsel is a stormy sea for a tria l court to navigate. There is even a foundational question as to whethe r a defendant is waiving a right (assistance of counsel) or asserti ng a right ( self

representation ). Further, the self

- representation right has itself been limited by the allowance of appointment of standby counsel overthe selfrepresented defendant’s objection, McKaskle v. Wiggins , (1984), 465 U.S. 168, 178-179, 104 S.Ct. 944, 79 L.Ed.2d 122, and the mandatory representation by counsel at trial on the ground the defendant is competent to stand trial, but lacks the mental capacity to conduct his tr ial unless represented. Indiana v. Edwards , (2008), [554] U.S. [164], 128 S.Ct. 2379, 171 L.Ed.2d 345. And if the judge makes the wrong call, either the-32- complete denial of counsel, Johnson v. United States , (1997), 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718, citing Gideon [v. Wainwright , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)], supra, or the denial of self

representation constitutes structural error which requires automatic reversal. McKaskle , supra; State v. Reed , (1996), 74 Ohio St.3d 53 4, 660 N.E.2d 456. State v. West , 2d Dist. Greene No. 2015-CA-72, 2017-Ohio-7521, ¶ 47, quoting State v. Gatewood , 2d Dist. Clark No. 2008 CA 64, 2009-Ohio-5610, ¶ 33-34. {¶ 41} To ensure that a waiver of counsel is made knowingly, intellig ently and voluntarily, the trial court must make sufficient inquiry to de termine whether a defendant fully understands and intelligently relinquishes that right. State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144; State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976). This Court has previously noted the U.S. Su preme Court’s holding that: “ ‘ * * * “The constitutional right of an accused to be repres ented by counsel invokes, of itself, the protection of a trial court, in which the accused—whose life or liberty is at stake—is without counsel. T his protecting duty imposes the se rious and weighty responsibility upon the trial judge of determining whether there is an intelligent and compet ent waiver by the accused.” [ Johnson v. Zerbst , 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).] To discharge this duty properly in light o f the strong presumption against waiver of the constitutional right to couns el, a judge must investigate as long and as thoroughly as the circumstances of the case-33- before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this righ t does not automatically end the judge’s responsibility. 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 punishmen ts thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad un derstanding of the whole matter. A judge can make certain that an accused’s p rofessed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstan ces under which such a plea is tendered.’ (Citations omitted.)” State v. Albert , 2d Dist. Montgomery No. 23148, 2010-Ohio-110, ¶ 12, quoting Von Moltke v. Gillies , 332 U.S. 708, 723-724, 68 S.Ct. 316, 92 L.Ed. 309 (1948) and citing State v. Engle, 183 Ohio App.3d 488, 2009-Ohio-1944, 917 N.E.2d 817, ¶ 9-10. {¶ 42} The Tenth Circuit noted in United States v. Hansen , 929 F.3d 1238, 1249- 1251 (10th Cir.2019): The “tried-and-true method” for a district court to assess whet her a waiver is being made knowingly and intelligently is to “conduct a thorough and comprehensive formal inquiry of the defendant on the record .” [ United [ State v. ] Vann , 776 F.3d 746, 763 [(10th Cir.2015)] (quoting United States v. Willie , 941 F.2d 1384, 1388 (10th Cir.1991)). Such a formal inquiry typically takes place in the context of a waiver hearing, custo marily referred
to as a Farettahearing, in recognition of the Supreme Court’s seminal-34- waiver case, [ United States v. Faretta , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).] See id. Faretta hearings are intended to “ensure[ ] the defendant is not unwittingly or impulsively disposing of hi s constitutional right to counsel,” id. , by determining whether “the defendant is aware of the nature of the charges, the range of allowable punishments and p ossible defenses, and is fully informed of the risks of proceeding pro se,” [ United States v. Williamson (“ Brett Williamson ”)], 859 F.3d [843,] 862 [(10th Cir. 2017] (quoting Vann , 776 F.3d at 763). These topics of inquiry stem from Justice Black’s plurality opinion in Von Moltke [332 U.S. at 724, 68 S.Ct. 316]. * * * The Supreme Court has emphasized that the requisite thoroughnes s of the district court’s inquiry into the relevant factors shoul d be viewed through a “pragmatic” lens—that is, the degree of thoroughness should correspond to how “substantial” and “obvious” the dangers of se lfrepresentation are at any particular stage of the criminal proc eedings. Patterson v. Illinois , 487 U.S. 285, 298, 299-300, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988); see [ Iowa v. Tovar , 541 U.S. 77, 90, 124 S.Ct. 1379, 158 L.Ed. 209 (2004)]. (“ Patterson describes a ‘pragmatic approach to the waiver question,’ one that asks ‘what purposes a lawyer can ser ve at the particular stage of the proceedings in question, and what assis tance he could provide to an accused at that stage,’ in order ‘to determ ine the scope of the Sixth Amendment right to counsel, and the type of warnin gs and-35- procedures that should be required before a waiver of that righ t will be recognized.’ ” (quoting Patterson , 487 U.S. at 298, 108 S.Ct. 2389)). Thus, as relevant here, the Supreme Court “require[s] a more searchin g or formal inquiry before permitting an accused to waive his right to coun sel at trial than [it] require[s] for a Sixth Amendment waiver during postin dictment questioning.” [ Id . at 229.] More specifically, “[w]arnings of the pitfalls of proceeding to trial without counsel ... must be ‘rigorous[ly]’ conveyed.” Tovar , 541 U.S. at 89, 124 S.Ct. 1379 (second alteration in original) (quoting Patterson , 487 U.S. at 298, 108 S.Ct. 2389). “[W]e ‘indulge in every reasonable presumption against waiver.’ ” United States v. Simpson , 845 F.3d 1039, 1046 (10th Cir.) (quoting Brewer v. Williams , 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)), * * *; see Von Moltke, 332 U.S. at 723-24, 68 S.Ct. 316 (“To discharge this duty [of inquiry] properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate a s long and as thoroughly as the circumstances of the case before him demand.” (emphasis added) (footnote omitted)); United States v. Padilla , 819 F.2d 952, 956 (10th Cir. 1987) (“The task of ensuring that defendant possesses the requisite understanding init ially falls on the trial judge, who must bear in mind the strong presumption against waiver .” (emphasis added)); United States v. Williamson (“ John Williamson ”), 806 F.2d 216, 219-20 (10th Cir. 1986) (“Courts indulge every presumption against the waiver of fundamental constitutional rights. ... [D]oubts concerning an a ttorney waiver-36- must be resolved in the defendant’s favor ....” (citations omit ted)). Nevertheless, the Supreme Court has not “prescribed any formula or script to be read to a defendant who states that he elects to p roceed without counsel.” Tovar , 541 U.S. at 88, 124 S.Ct. 1379. Relatedly, the Court has acknowledged that “[t]he information a defendant must possess i n 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 pr oceeding.” Id .; see Johnson , 304 U.S. at 464, 58 S.Ct. 1019 (“The determination of whether there has been an intelligent waiver of right to counse l must depend, in each case, upon the particular facts and circumstanc es surrounding that case, including the background, experience, an d conduct of the accused.”). Our caselaw embodies the substance of the Supreme Court’s pragmatic approach. Notably, in Padilla , although we held that “the trial judge should conduct an inquiry sufficient to establish a defen dant’s knowledge and understanding of the factors articulated in Von Moltke ,” we also made clear that “[n]o precise litany is prescribed” for th e court’s knowing-and-intelligent inquiries. [ Padilla ], 819 F.2d at 959. And, relatedly, our cases have repeatedly stressed that the kno wing and intelligent nature of the waiver of the right to counsel tu rns on the “totality of the circumstances, including the background, exper ience, and conduct of the defendant.” John Williamson , 806 F.2d at 220; see Vann ,-37- 776 F.3d at 763 (“We reflect on the totality of the circumstanc es to decide whether a defendant has knowingly [and intelligently] decided t o proceed
pro se .”); Padilla , 819 F.2d at 958 (recognizing that “the question of an intelligent waiver turns not only on the state of the record [i ncluding presumably the court’s inquiry into the Von Moltke factors in a Faretta hearing ], but on all the circumstances of the case , including the defendant’s age and education, his previous experience with criminal trials , and representation by counsel before trial” (emphasis added)); [ United States v. Weninger , 624 F.2d [163] at 164 (“To ascertain whether [a defendant] knowingly and intelligently waived his right to counsel, we mus t consider ‘the total circumstances of the individual case including backg round, experience and the conduct of the accused person.’ ” (quoting United States v. Warledo , 557 F.2d 721, 727 (10th Cir.1977))); see also Turner , 287 F.3d at 983 (endorsing an inquiry into “the surrounding facts and ci rcumstances” to determine whether a defendant knowingly and intelligently wa ived the right to counsel); cf. John Williamson , 806 F.2d at 219 (noting that “[e]ach case must be reviewed individually, with the objective of deter mining whether the judge fully inquired into the circumstances”). {¶ 43} In United States v. Ductan , 800 F.3d 642 (4th Cir.2015), the Fourth Circuit further noted: In addition to requiring that a waiver be knowing and intellige nt as a constitutional minimum, we have imposed one other requirement. In Fields, we noted the “thin line between improperly allowing the defend ant-38- to proceed pro se, thereby violating his right to counsel, and improperly having the defendant proceed with counsel, thereby violating hi s right to self-representation.” [ Fields v. Murray ,] 49 F.3d [1024] at 1029 (internal quotation mark omitted). Acknowledging that “[a] skillful defen dant could manipulate this dilemma to create reversible error,” we held th at a waiver of counsel through the election of self-representation must be mor e than knowing and intelligent: it must also be “clear[ ] and unequivo cal[ ].” Id. We explained that this requirement “greatly aids the trial cour t in resolving this dilemma” by allowing the court to presume that “the defend ant should proceed with counsel absent an unmistakable expression by the defendant that so to proceed is contrary to his wishes.” Id. (emphasis added). Id ., quoting Fields v. Murray , 49 F.3d 1024, 1029 (4th Cir.1995). {¶ 44} Lee directs our attention to United States v. Simpson , 845 F.3d 1039 (10th Cir.2017), which noted: The Sixth Amendment provides criminal defendants with the right to represent themselves. Faretta v. California , 422 U.S. 806, 819-20, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). But this right lies in tens ion with the Sixth Amendment right to counsel. Id. at 832 * * * (noting that selfrepresentation “cut[s] against the grain of this Court’s decisi ons holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of coun sel”). The right to counsel helps to assure a defendant a fair trial. Id . at 832-33 * * *. By contrast, self-representation ordinarily undermines the defe ndant's-39- chance of a favorable outcome. McKaskle v. Wiggins , 465 U.S. 168, 177 n.8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). In light of this re ality, we have noted that the right to counsel serves “both the individual and collective good,” while the right to self-representation protects only “in dividual interests.” United State v. Mackovich, 209 F.3d 1227, 1237 (10th Cir.2000) (citation omitted). This distinction results in “constitutional primacy” of the rig ht to counsel. United States v. Smith , 413 F.3d 1253, 1280 (10th Cir.2005) (citation omitted), abrogated on other grounds by Boyle v. United States , 556 U.S. 938, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009). Partly because of the primacy of that right, a defendant wanting to proceed pr o se must satisfy four requirements: First, the defendant must “clearly and unequivocally” inform the district court of his intention to represent himself. Seco nd, the request must be timely and not for the purpose of delay. Third , the court must conduct a comprehensive formal inquiry to ensure that the defendant's waiver of the right to counsel is “knowing ly and intelligently” made. Finally, the defendant “must be ‘able and willing to abide by rules of proc edure and courtroom protocol.’ ” United States v. Tucker , 451 F.3d 1176, 1180 (10th Cir.2006) (citations omitted). In evaluating whether the defendant satisfied these requirements, we “indulge in every reasonable presumption again st waiver.” Brewer v. Williams , 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d-40- 424 (1977); Smith , 413 F.3d at 1280 (citation omitted). * * * In requiring “clear and unequivocal” expression of a request fo r selfrepresentation, we protect not only the defendant but also the trial court. United States v. Mackovich , 209 F.3d 1227, 1236 (10th Cir.2000); United States v. Miles , 572 F.3d 832, 836 (10th Cir.2009). Without a clear and unequivocal request, the court would face a dilemma, for an equ ivocal demand creates a potential ground for reversal however the tria l court rules. Miles , 572 F.3d at 836. If the court determines that the defendant wants to proceed pro se, the defendant can assert a violation of the rig ht to counsel; if the court provides counsel, the defendant can assert a viola tion of the right to proceed pro se. Id. By requiring the self-representation request to be clear and unequivocal, we prevent the trial court from having to guess atthe defendant’s intent. Id. at 836-37. Instead, the court can infer intent from the defendant's conduct and representations. Id. at 837; see also United States v. Loya-Rodriguez , 672 F.3d 849, 858-59 (10th Cir.2012) (finding no clear request—even though the defendant expressly stated in a l etter that he wanted to communicate without his attorney—because the lette r, when “taken as a whole,” could “fairly be read” to conclude that the defendant was not requesting self-representation). Thus, the absence of a cl ear, unequivocal request can allow the court to reasonably infer tha t the defendant does not wish to proceed pro se. Miles , 572 F.3d at 837.-41- (Footnotes omitted.) Simpson at *1046-47. {¶ 45} The following facts were relevant in Simpson : At a hearing on the morning of trial, Mr. Simpson presented two motions: a written motion to represent himself and an oral moti on to continue the trial. The district court asked Mr. Simpson if he was prepared to represent himself without a continuance, and he responded th at he was not. From this exchange, the district court apparently underst ood that Mr. Simpson was not asking to represent himself if the trial were t o proceed that morning. Based on this apparent understanding, the court denie d the motion for self-representation, reasoning that it had been unti mely. Id . at *1044. {¶ 46} The Tenth Circuit concluded that Simpson’s written motion did “ not expressly ask for a continuance, but implicitly did so by menti oning future discovery procedures. The second was an oral motion for a continuance, w hich was based on the request for self-representation.” Id. at *1047. The Tenth Circuit noted that, read together, “the two motions stated that Mr. Simpson wanted to ob tain more time for trial and to represent himself at the eventual trial.” Id . The Tenth Circuit found that the district court had “conflated the two motions and denied them” and that “Simpson did not clearly and unequivocally state that he wanted to represent him self even without a continuance.” Id. at *1047-48. {¶ 47} The Tenth Circuit further conducted the following analysis: * * * We must consider Mr. Simpson's statements in context and consider the inferences reasonably drawn by the district court. See United-42- States v. Miles , 572 F.3d 832, 837 (10th Cir.2009) (district court may “reasonably dr[a]w ... inference[s]” from a defendant's action or inaction to decipher the defendant's intent). Thus, even when defendants ap pear to request self-representation, their other statements or actions may render the requests unclear or ambiguous. See United State v. Bennett , 539 F.2d45, 50-51 (10th Cir.1976) (defendant expressly requested selfrepresentation, but his additional statements rendered his posi tion on selfrepresentation unclear); * * *. The written self-representation motion indicated a desire to en gage in further discovery. Then, when the pretrial hearing began, M r. Simpson orally requested a continuance. This request led the district court to ask Mr. Simpson if he was prepared to represent himself without a c ontinuance; Mr. Simpson answered that he was not. This answer led the court to understand that Mr. Simpson did not want to proceed pro se with out a continuance. We do not know if this understanding was correct, but it was at least reasonable. See Miles , 572 F.3d at 837. Mr. Simpson could easily have clarified that he wanted to represent himself even without a co ntinuance. But he admittedly “never asked if this w[ere] an option.” * * * In similar circumstances, we have indicated that the trial court could reasonably conclude that defendants wanted to represent themsel ves only if certain conditions were met. For example, in Stalling v. Franco, the defendant filed multiple motions, one stating that he wanted to proceed pro-43- se but adding: “ ‘Although I did ask to go pro-se, I am not pre pared at this time for trial, because I do not know the rules and procedures to a New Mexico jury trial.’ ” 576 Fed.Appx. 820, 823 (10th Cir.2014). We concluded that the defendant had not made a clear, stand-alone self-repre sentation request, as his motions could reasonably be read as “a request for conditional ... representation.” Id. Similarly, in United States v. Smith, the defendant made a selfrepresentation request, but was unprepared for trial. 413 F.3d 1253, 1281 (10th Cir.2005). Even though the defendant did not request a c ontinuance, we assumed that granting the request “would mandate another len gthy continuance to allow Mr. Smith to prepare for his own defense.” Id. ; see also United State v. Tucker , 451 F.3d 1176, 1181 (10th Cir.2006) (noting that in Smith , the need for a continuance was a “case-specific factor[ ] tha t made it proper for the district court to deny the defendant's m otion”). We have also held that a defendant's request is not unequivocal when it simultaneously appears to request self-representation b ut adds a qualification that confuses what the defendant wants. For examp le, in United State v. Callwood , the defendant asserted that he preferred not to be represented by counsel, but he also said that he “at least” wanted to question a witness himself. 66 F.3d 1110, 1114 (10th Cir.1995) . We noted that the defendant had “never made any other statement re garding his desire for self-representation.” Id. at 1114

. Thus, we held that the defendant had not unequivocally requested an opportunity to rep resent-44- himself. Id. * * * Drawing on these opinions for guidance, we conclude that Mr.Simpson did not clearly and unequivocally say whether his selfrepresentation motion was a conditional motion or a stand-alone motion. We can draw two reasonable conclusions: (1) Mr. Simpso n wanted to represent himself even without a continuance, or (2) he want ed to represent himself only if he obtained additional time. We read the record with a presumption favoring exercise of the right to counsel; w e do not presume that Mr. Simpson wanted to represent himself unprepared

. (Footnotes omitted.) Simpson at *1048-49. {¶ 48} Finally, in United States v. Austin , 797 Fed. Appx. 233 (6th Cir.2019), Austin argued that “the district court violated his Sixth Amend ment rights by delaying the grant of his self-representation request until the eve of jury selection and nearly three weeks after it was made, thereby depriving Austin of adequate t ime to meaningfully prepare for trial”; the Circuit Court found his claim to be bas eless. Id . at *238. Austin relied upon the Ninth Circuit’s decision in United States v. Farias , 618 F.3d 1049, 1050- 51 (9th Cir.2010), in which the defendant requested to represen t himself one day before trial. Id . at *239. The Sixth Circuit observed: * * * The district court in Farias told the defendant that the trial would not be continued, and thus he would only have one day to prepar e to represent himself. Id. As a result, the defendant proceeded to trial with counsel. Id. The Ninth Circuit vacated the defendant’s conviction, finding-45- that the lower court had committed structural error by “foreclo sing any possibility of a continuance” and thereby “effectively den[ying the defendant] the right to meaningfully represent himself.” Id. at 1055. The Ninth Circuit proclaimed that “a right to proceed pro se withou t adequate time to prepare renders that right ‘meaningless.’ ” Id. at 1054. Contrary to Austin’s argument, the facts in Farias are not comparable to the case at hand. Here, there was no suggestion to the dist rict court that Austin lacked sufficient time to prepare to represent himself. To the contrary, Austin repeatedly told the court that he was prepared to proceed to trial while representing himself. On September 15, he told the district court that he “believe[d]” he knew his “case well” and was “pre pared to defend” himself, * * * and on October 3, when the court asked A ustin if he was “ready to defend” and “represent” himself, Austin responded , “Yes sir, I am”. Not only did Austin never imply that he wanted a contin uance, he affirmatively indicated to the court that one was not needed. Id. at 239. {¶ 49} Reading the record before us with a strong presumption favoring the exercise of the right to counsel, we conclude that under the to tality of the circumstances, the trial court should have rejected Lee’s request to proceed p ro se. That is, accepting a waiver contingent upon a continuance without granting a conti nuance constitutes an abuse of discretion, particularly with unresolved discovery mat ters. We further conclude that the court’s “wrong call” requires reversal for structural error. See West , 2d Dist. Greene No. 2015-CA-72, 2017-Ohio-7521, ¶ 47.-46- {¶ 50} The equivocal and unclear nature of Lee’s request for self-rep resentation was demonstrated in the course of the colloquy at the waiver he aring and confirmed on the first day of trial. At the conclusion of the court’s expla nation of the dangers and disadvantages of self-representation, the court found that Lee had “knowingly and voluntarily waived his right to counsel.” Lee, however, assert ed that he felt “forced into this contract” and that he did not “consent to the contract.” Lee advised the court that he was “not being allowed to get all the discovery that [he was] s upposed to have” and “should be allowed to view everything that’s being said” agains t him. He advised the court, “I do know that I have a right to get the discovery and be allowed to view this discovery and inspect this discovery.” In response, the court advised Lee, “make no mistake, we are going to trial on Monday,” and “we’re not going to postpone the trial to give you a chance to get what you think you haven’t received yet, and we’re going to proceed on Monday with competent counsel, or with you, dependin g on your decision here today.” (Emphasis added). {¶ 51} The court inquired, “one final time, Mr. Lee, are you going to sign the waiver of counsel or not today?” Lee then asked, “In signing this wai ver, will I then be allowed to view these videos and go over these things * * *?” The court advised Lee that it had “no control over that,” that whether Lee was able to view disco very or not was between him and his counsel, and that the Court “declines to interfere with that.” When Lee responded that, as his own counsel, he “should be able to” to v iew discovery, the court advised Lee that the “exercise of those rights * * * must be ma de in a timely fashion. * * * We are not going to entertain anything that will delay this tri al any further.” {¶ 52} As noted above, Lee initially expressed concern about the disco very issue-47- at the February 21, 2018 NGRI hearing, almost six months before trial. He asserted at that time that there was “stuff that [he] got in discovery toda y that [he] had never seen in ten whole months” and that there were videos that he had first seen with his attorney in “the last couple of days” that he had “never seen” previously. In the course of the waiver colloquy, Lee indicated to the court that he had been asking “t o see the videos of every witness that has a audio/video” against him since the first tim e he came to court. {¶ 53} We further note that while the trial court appeared to suggest that previous continuances were granted so that substitute counsel had the op portunity to prepare, one requested continuance was due to a scheduling conflict, and the trial court also rescheduled the trial due to the February 21, 2018 NGRI hearing

. {¶ 54} Lee further inquired, “if I’m representing myself, I still can ’t see the discovery, is that what’s being said?” The court’s response wa s largely unintelligible: “I’m sure that prior counsel will provide you with that informa tion, whether they will not be any longer required to or able, frankly, to provide information on which you might review or listen to that, but we need to know whether you’re going to - - I’ve answered all the questions I’m going to answer.” Lee responded, “I would like t o defend myself, and at the same time, I would like to be able to see the videos. I wo uld like to be able to get the original interview documents * * *.” {¶ 55} The court then indicated, “Mr. Lee, last chance. Are you going to sign that waiver?” Lee responded, “I have all these disadvantages, yet * * * even if I sign the waiver, I don’t even have the advantage of being able to see an d go through and look at the evidence that’s against me that’s part of the discovery * * *.” When the court indicated that Lee was “not willing to waive his right to counsel,” Lee t hree times responded, “That’s-48- not what I said.” {¶ 56} After a recess, and after Lee executed the written waiver, he i mmediately stated, “just to make part of the record, I agree to represent the Defendant, which is myself, but not to proceed, because I’m not read y. I haven’t seen the discovery * * * there’s a lot of things in my discovery that I don’t have in my possession.” Unlike the defendant in Austin , Lee emphasized, after reviewing the written waiver, that it d id not “say anything about [his] being ready to proceed.” He reiterate d, “I don’t have the discovery,” and “I want to proceed in being counsel to represen t myself. I am not ready for trial, because I don’t have the discovery.” {¶ 57} Lee’s right to counsel herein necessarily invoked the court’s p rotection. As noted in Albert , 2d Dist. Montgomery No. 23148, 2010-Ohio-110, ¶ 12, this “pro tecting duty” imposed a “serious and weighty responsibility” upon the c ourt of determining whether Lee’s waiver was intelligent and competent. Id ., quoting Von Moltke, 332 U.S. 708, 723-724, 68 S.Ct. 316, 92 L.Ed. 309. The court was required to conduct a “penetrating and comprehensive inquiry of the circumstances” su rrounding Lee’s request. Id . at ¶ 12. This duty accordingly required a thorough examinati on of the case-specific factors herein. {¶ 58} The record establishes that Lee’s date of birth was July 25, 1 978. Lee indicated at the waiver hearing that he was able to read and wr ite, and in terms of education, he had obtained his GED. The record indicates that he had been diagnosed with depression, anxiety, and post-traumatic stress disorder. {¶ 59} As noted in Hansen , the degree of the trial court’s thoroughness in its inquiry was required to correspond to the substantial and obvious dange rs of self-representation.-49- Lee was facing an 11-count indictment which included murder, nu merous counts of felonious assault, and multiple specifications, as well as a co mplex trial before a jury and essentially a life sentence. He indicated that he had no prior experience representing himself in court. When Lee expressed concern about having acce ss to a law library, the court indicated that Lee would have the opportunity to inquire regarding the sheriff’s policies of providing access (although there is no indication t hat such an opportunity was in fact afforded); when Lee raised the issue again, the court a dvised him that he would be able to object to preserve the issue for appeal. We conclud e that the trial court failed to rigorously convey appropriate warnings regarding Lee’s abili ty to conduct legal research. {¶ 60} While Lee repeatedly stated that he was deprived of the right t o view all of the discovery, the trial court did not inquire of Lee specifica lly what he had not seen; it also did not ask defense counsel to establish for the record th e specific discovery or the extent thereof to which Lee had been given or denied access. I nstead, the court stated, “make no mistake, we are going to trial on Monday.” {¶ 61} We agree with Lee that he equivocated at the waiver of counsel hearing in that he asserted his right to self-representation and yet disag reed with proceeding to trial the following Monday. We further conclude that the court bore an obligation to clear up the ambiguity in Lee’s statements with further inquiry. We can not conclude that Lee wanted to represent himself without a continuance of the trial, and we cannot conclude that Lee’s equivocal statements constituted a valid waiver of h is right to counsel. This is especially so in light of his repeated attempts to explain his lack of preparedness to proceed to trial. To the extent that the State suggests that L ee agreed on the morning-50- of trial to proceed pro se, such an assertion is belied by Lee’ s written and oral requests for a continuance and the lengthy exchange between Lee and the court regarding the discovery issues. We conclude that, in finding that Lee knowin gly and voluntarily waived his right to counsel and in proceeding to trial, the court deni ed Lee the right to meaningfully represent himself. {¶ 62} As noted above, the right to counsel serves both the individua l and collective good. For the foregoing reasons, the record demonst rates structural error, and we accordingly sustain Lee’s first assignment of error. {¶ 63} Lee’s second assignment of error is as follows: THE RECORD DOES NOT CL EARLY AND CONVINCINGLY SUPPORT THE TRIAL COURT’S FINDING THAT CONSECUTIVE SENTENCES ARE NECESSARY TO PROTECT THE PUBLIC. {¶ 64} As the State concedes, the trial court failed to make the stat utory findings required to impose consecutive sentences. See R.C. 2929.14(C)(4). Nevertheless, our resolution of Lee’s first assignment of error renders analysis of this assigned error moot. {¶ 65} For the reasons discussed in the first assignment of error, the judgment of the trial court is reversed, and the matter is remanded for further proceedings consistent with this opinion.

. . . . . . . . . . . . . FROELICH, J., concurs in judgment only: {¶ 66} I do not necessarily disagree with either of my colleagues’ int erpretations of the record. There are parts that support a knowing, intelligen t, and voluntary waiver of Lee’s right to counsel and parts that support a conclusion thatany waiver was conditioned-51- on receiving discovery and a trial continuance; this is true de spite thorough and patient dialogues and explanations by the trial court. {¶ 67} As noted by my colleagues, a defendant must “ ‘unequivocally an d explicitly invoke’ the right to self-representation.” State v. Obermiller , 147 Ohio St.3d 175, 2016- Ohio-1594, 63 N.E.3d 93, ¶ 29, quoting State v. Cassano , 96 Ohio St.3d 94, 2002-Ohio3751, 772 N.E.2d 81, ¶ 38. There is a strong presumption again st waiver of the constitutional right to counsel, and trial courts are required to “indulge in every reasonable presumption against waiver of the right to counsel.” Id ., quoting Brewer v. Williams , 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). In light of this presumption and the lack of an “unequivocal and explicit” waiver by Lee, I conc ur in the judgment. {¶ 68} Lee was convicted of heinous acts, and this opinion does nothin g to minimize that. However, “the safeguards of liberty have freque ntly been forged in controversies involving not very nice people.” United States v Rabinowitz , 339 U.S. 56, 59, 70 S.Ct. 430, 94 L.Ed. 653 (1950) (Frankfurter, J., dissent ing).

TUCKER, P.J., dissents: {¶ 69} In my opinion, the record supports the conclusion that Lee clea rly and unequivocally waived his right to counsel. Based upon this con clusion, I dissent. {¶ 70} No purpose is served by replowing the ground covered in the maj ority opinion. It is sufficient to note the following. First, a cri minal defendant has a separate, distinct constitutional right to self-representation. Faretta , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. This right creates tension with a defendant’s right to counsel so that “there can be no blinking the fact that the right of an accused to conduct his own defense seems to cut against the grain of [those Supreme Court] decisio ns holding that the-52- Constitution requires that no accused can be convicted and impr isoned unless he has been accorded the right to the assistance of counsel.” Id. at 832, citing Gideon , 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. (Other citations omitted.) As conceded by the Faretta majority opinion, these decisions allow a “strong argument” tha t a “State may constitutionally impose a lawyer upon * * * an unwilling defend ant.” Id. at 833. But this argument was rejected because “it is one thing to hold that eve ry defendant, rich or poor, has the right to the assistance of counsel, and quite another t o say that a State may compel a defendant to accept a lawyer he does not want.” Id. The Faretta decision was also informed by the reality that, when a “defendant will not v oluntarily accept representation by counsel, the potential advantages of a lawyer ’s training and experience can be realized, if at all, only imperfectly[,] [and] [t]o forc e a lawyer on a defendant [in such a circumstance] can only lead him to believe that the law contrives against him.” Id. {¶ 71} It is secondly noted that this tension has, quite appropriately , resulted in the requirement that before accepting a defendant’s waiver of couns el, the trial court must engage in a painstaking discussion with the defendant to insure that the selfrepresentation decision is kno wing, intelligent, and voluntary. Obermiller , 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93; Hansen , 929 F.3d 1238. This colloquy, known as

a Faretta hearing, must include a review of the pending charges, the adva ntages of having counsel, and the pitfalls of self-representation, so that the d efendant’s choice is made with his “eyes open.” Obermiller at ¶ 30, quoting Adams v. United States ex rel. McCann , 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed.2d 268 (1942). Finall y, though each right is constitutionally protected, the case law, again quite appropria tely, assumes a defendant-53- is better served with counsel; thus, the waiver of counsel must be “unequivocal and explicit,” and, when making the waiver determination, a trial c ourt is required to “indulge in every reasonable presumption against waiver of the right to counsel.” Id. at ¶ 29, quoting Brewer , 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424. {¶ 72} Turning to the pending case, at the end of the lengthy, compreh ensive Faretta hearing, Lee balked at signing the waiver of counsel form. Lee ’s reluctance was based upon his assertion he had been denied access to discoverymaterials and thus was not prepared to proceed to trial. The trial court sensed, probably correctly, that Lee was trying to leverage the situation to obtain another trial co ntinuance and declared that, “because of discovery issues, [Lee] is not willing to waive his right [to counsel].” In response, Lee immediately asserted “That’s not what I said. Tha t’s not what I said sir.” The trial court, without responding to Lee’s declarations, anno unced a recess. At this point, the waiver had not been signed, and the trial was schedu led to begin the following Monday with Lee represented by counsel. {¶ 73} Soon thereafter, within ten minutes or so, the hearing resumed with the trial court’s statement that “Lee’s perceived difficulties with disco very * * * [and his] prolonged reluctance to sign the waiver indicated his desire to proceed w ith counsel * * *.” In response, Lee’s counsel stated that Lee, in fact, desired “to e xecute the waiver of counsel”; Lee then signed the waiver of counsel but continued t o insist that, because of discovery issues, he was not ready to proceed to trial. Lee’s discovery concerns were not addressed, and the hearing was adjourned with Lee’s having signed the waiver of counsel, knowing a continuance was not going to occur, but obje cting to the trial beginning on Monday morning.-54- {¶ 74} On Monday morning, before the commencement of jury selection, t he following exchange occurred regarding the issues of Lee’s self- representation and his continued assertion that he had been denied access to discovery materials: THE COURT: Can you assure the Court at this time that you conti nue to want to represent yourself in this case without a lawyer? MR. LEE: Yes. THE COURT: Okay. Very well - - MR. LEE: Excuse me. * * * MR. LEE: So, I just want to ask one question. So I’m in - - THE COURT: Sure. Go ahead. MR. LEE: So I’m bee - - I’m not - - I’m not able to view the re st of my discovery, just for the record? I just want to know this - - t hat’s the final verdict that I will not be able to see these videos and none of that, or be able to inspect for my own personal inspection. Is that what the - - is that the decision? Is that the Judge’s decision in this matter, sir? THE COURT: Well, it’s an appellate issue. If the prosecuting a ttorney has failed to provide you or your attorney with - - MR. LEE: I am my attorney. THE COURT: Please don’t interrupt me. Okay. Hear me out then - - if the prosecuting attorney has failed to provide your lawyer or you w ith all lawful discovery, or if your lawyer or any previous lawyers in this ca se have failed to provide you with the discovery which they have received in t his case,-55- then in each of those cases, those are appellate issues which w e are not going to deal with here at the trial level. Okay. So, the dis covery issues over [sic]. You’ve made your objections as to the discovery an d we’ll not hear about them again. Yes. MR. LEE: It was the point when I was making my objection I was cut off before I could finish my objection. THE COURT: Well, we - - MR. LEE: (Indiscernible) is trying to stop me and then gave the prosecution a opportunity to say what he had to say but, I was right becaus e I prepared everything. I prepared - - I prepared it just, you know, for t he purpose of my motions. THE COURT: Well, you were - - MR. LEE: And - - THE COURT: - - for the record, to clarify, your objection regar ding discovery is that either you have not been given it or it was not given t o you in a timely fashion to prepare for trial; is that right? MR. LEE: I have not seen it. My attorney has been given it - - THE COURT: I.e., it was not given to you. MR. LEE: Right. No, it was not given to me. No, it was not. THE COURT: Okay. And that’s your objection? MR LEE: That is my objection. My objection is I don’t have the discovery. Previous attorneys had it and th ey did not let me view it.-56- THE COURT: Yeah. And - - MR. LEE: I have never seen it. THE COURT: And I understand that objection. Thus, just prior to the commencement of the trial, Lee reaffirm ed his desire to represent himself, and he was given an opportunity to lodge an objection concerning his purported inability to review witness videos generated during the police investigation and seemingly provided to defense counsel. Based upon the exchanges that occ urred the prior week and the morning of trial, Lee knew that the trial was going for ward despite his desire to view witness videos before the trial began. With this knowledg e, he opted to represent himself. {¶ 75} The majority opinion accepts Lee’s assertions that his self-rep resentation request was conditioned upon a trial continuance so that he cou ld review the muchdiscussed videos, and that his waiver thus was not explicit and unequivocal. From this, Lee asserts the trial court erred by accepting the waiver. I, in contrast, conclude that the record compels the conclusion that Lee did not tie the self-rep resentation demand to a trial continuance. Lee asserted his right to self-representati on and he wanted a trial continuance, but he knew the trial was not going to be continue d. With this knowledge, Lee, in an explicit and unequivocal fashion, waived his right t o counsel, and then on the first morning of trial, reaffirmed the waiver. In short, Lee m ade his decision with “eyes open,” and, given this, the trial court did not err by not comp elling Lee “to accept * * * lawyer[s] he [did] not want.” Faretta, 422 U.S. at 833, 95 S.Ct. 2525, 45 L.Ed.2d 562.-57- Upon this basis, I respectfully dissent. 1

Copies sent to: Mathias H. Heck, Jr. Andrew T. French Stephen P. Hardwick Hon. Gregory F. Singer

1 Based upon the fact that Lee’s self-representation request was made a few days before the scheduled trial, I acknowledge that the trial court could h ave denied the request on this basis. State v. Dean , 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 68, citing United States v. Frazier-El , 204 F.3d 553, 559 (4th Cir.2000). But as long as the request was knowing, intelligent, and voluntary, late notice do es not mean that a trial court errs by allowing a self-representation request made shortly bef ore a scheduled trial.