[Cite as State v. Alexander, 2016-Ohio-5015.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ROSS COUNTY 

STATE OF OHIO, : 

 : Case No. 15CA3492 

Plaintiff-Appellee, : 

 : 

vs. : DECISION AND JUDGMENT 

 : ENTRY 

ZACHARY R. ALEXANDER, : 

 : 

 Defendant-Appellant. : Released: 07/12/15 

_____________________________________________________________ 

APPEARANCES: 

John A. Gambill, Portsmouth, Ohio, for Appellant. 

Sherri K. Rutherford, Chillicothe Law Director, and Michele Rout, Assistant 

Law Director, Chillicothe, Ohio, for Appellee. 

_____________________________________________________________ 

McFarland, J. 

{¶1} Zachary R. Alexander appeals from his conviction for domestic 

menacing, a charge for which he was convicted in the Chillicothe Municipal 

Court after a jury trial. On appeal, Appellant contends that the trial court 

committed reversible and prejudicial error in not demonstrating substantial 

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

whether he fully understood and intelligently relinquished his right to 

counsel, in violation of Section 10, Article I of the Ohio Constitution and 

Sixth and Fourteenth Amendments of the United States Constitution. We 
Ross App. No. 15CA3492 2

agree; however, we find that the trial court failed to substantially comply 

with Crim.R. 44(B), which governs assignment of counsel in petty offenses, 

rather than Crim.R. 44(A), which governs assignment of counsel in serious 

offenses. 

{¶2} Because Crim.R. 44(B) simply provides that a sentence of 

confinement may not be imposed upon an unrepresented defendant 

convicted of a petty offense, without a valid waiver of the right to counsel, 

we find that the proper remedy is to affirm Appellant’s conviction, but 

reverse and vacate the confinement portion of his sentence. Thus, 

Appellant’s sole assignment of error is sustained, to the extent we construe it 

to be an argument based upon a violation of Crim.R. 44(B). Accordingly, 

although Appellant’s conviction is affirmed, we must reverse the trial court’s 

judgment with respect to the imposition of a ten-day period of confinement 

and remand this cause to the trial court with the instruction to vacate the 

confinement portion of Appellant’s sentence. 

FACTS 

{¶3} Appellant was charged with domestic menacing, a second degree 

misdemeanor in violation of R.C. 2919.25(C), by way of a criminal 
Ross App. No. 15CA3492 3

complaint filed in the Chillicothe Municipal Court on March 24, 2015. 1

 The 

trial court orally advised Appellant of his right to counsel at this 

arraignment. Appellant responded that he did not want court appointed 

counsel and that he "may seek outside counsel." Nevertheless, Appellant 

executed a written waiver of his right to counsel and entered a plea of not 

guilty. The matter proceeded to a bench trial on May 15, 2015. At the 

beginning of trial, it was simply noted that Appellant was not represented by 

counsel, without any further discussion. Appellant was ultimately convicted 

of fourth-degree misdemeanor domestic menacing and was sentenced to ten 

days in jail and probation for one year.2

 

ASSIGNMENT OF ERROR 

“I. THE TRIAL COURT COMMITTED REVERSIBLE AND 

PREJUDICIAL ERROR IN NOT DEMONSTRATING 

SUBSTANTIAL COMPLIANCE WITH CRIM.R. 44(A) BY 

MAKING A SUFFICIENT INQUIRY TO DETERMINE WHETHER 

APPELLANT FULLY UNDERSTOOD AND INTELLIGENTLY 

RELINQUISHED HIS RIGHT TO COUNSEL IN VIOLATION OF 

SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND 

SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED 

STATES CONSTITUTION.” 

 

1

 We note that although the record before us consistently refers to Appellant’s charged offense as “domestic 

menacing,” R.C. 2919.25(C) refers to the offense as “domestic violence.” 

2

 The trial court dismissed the second-degree misdemeanor charge, finding that the State failed to introduce 

evidence that Appellant had a prior conviction of domestic violence, but found Appellant guilty of 

domestic menacing as a fourth-degree misdemeanor. 
Ross App. No. 15CA3492 4

STANDARD OF REVIEW 

{¶4} "The Sixth Amendment to the United States Constitution 

provides that criminal defendants shall have the right to the assistance of 

counsel for their defense." State v. Bristow, 4th Dist. Scioto Nos. 07CA3186, 

07CA3187, 2009-Ohio-523, ¶ 12. "The right to counsel applies to 

misdemeanor prosecutions that could result in incarceration." State v. 

Vordenberge, 148 Ohio App.3d 488, 492, 774 N.E.2d 278 (1st Dist. 2002) 

(internal citations omitted). However, “[t]he Sixth Amendment * * * [also] 

guarantees that a defendant in a * * * state criminal trial has an independent 

constitutional right of self-representation and that he may proceed to defend 

himself without counsel when he voluntarily, and knowingly and 

intelligently elects to do so.” State v. Neyland, 139 Ohio St.3d 353, 2014-

Ohio1914, 12 N.E.3d 1112, ¶ 71; quoting State v. Gibson, 45 Ohio St.2d 

366, 345 N.E.2d 399 (1976), paragraph one of the syllabus; citing Faretta v. 

California, 422 U.S. 806, 95 S.Ct. 2525 (1975). “To establish an effective 

waiver of the right to counsel, the trial court must make sufficient inquiry to 

determine whether the defendant fully understands and intelligently 

relinquishes that right.” State v. Weddington, 4th Dist. Scioto No. 

13CA3560, 2014-Ohio-1968, ¶ 9; quoting State v. Bristow, 4th Dist. Scioto 
Ross App. No. 15CA3492 5

Nos. 07CA3186, 07CA3187, 2009-Ohio-523, ¶ 12; citing Gibson, supra, at 

paragraph two of the syllabus; see also State v. Vordenberge, supra, at 492. 

“There is no single, definitive test to determine whether a defendant 

voluntarily, knowingly, and intelligently waives the right to counsel.” State 

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

Instead, appellate courts should conduct a de novo review and 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. Id. 

LEGAL ANALYSIS 

{¶5} In his sole assignment of error, Appellant contends that the trial 

court committed reversible and prejudicial error by failing to demonstrate 

substantial compliance with Crim.R. 44(A) in that it failed to make sufficient 

inquiry to determine whether Appellant fully understood and intelligently 

relinquished his constitutional right to counsel. The State counters by 

arguing that Appellant was verbally advised of his right to counsel at his 

arraignment, that he signed a written waiver at that time and decided to 

proceed without counsel. 

{¶6} Crim.R. 44, which addresses the assignment of counsel and the 

waiver thereof, provides as follows: 
Ross App. No. 15CA3492 6

“(A) Counsel in serious offenses 

Where a defendant charged with a serious offense is unable to 

obtain counsel, counsel shall be assigned to represent him at 

every stage of the proceedings from his initial appearance 

before a court through appeal as of right, unless the defendant, 

after being fully advised of his right to assigned counsel, 

knowingly, intelligently, and voluntarily waives his right to 

counsel. 

(B) Counsel in Petty Offenses. 

Where a defendant charged with a petty offense is unable to 

obtain counsel, the court may assign counsel to represent him. 

When a defendant charged with a petty offense is unable to 

obtain counsel, no sentence of confinement may be imposed 

upon him, unless after being fully advised by the court, he 

knowingly, intelligently, and voluntarily waives assignment of 

counsel. 

(C) Waiver of counsel 

Waiver of counsel shall be in open court and the advice and 

waiver shall be recorded as provided in Rule 22. In addition, in 

serious offense cases, the waiver shall be in writing.” 
Ross App. No. 15CA3492 7

{¶7} Initially, we note that both Appellant and Appellee base their 

arguments on the requirements of Crim.R. 44(A), which applies to serious 

offenses. However, because Appellant’s offense is classified as a petty 

offense, Crim.R. 44(B) is the applicable rule. Appellant was charged with a 

second degree misdemeanor offense of “domestic menacing,” as referred to 

in the record. The maximum term of confinement for this particular second 

degree misdemeanor is ninety days. Crim.R. 2(D) defines “petty offense” as 

“a misdemeanor other than a serious offense.” Crim.R. 2(C) defines 

“serious offense” as “any felony, and any misdemeanor for which the 

penalty prescribed by law includes confinement for more than six months.” 

Thus, because this particular second degree misdemeanor charge was subject 

to a maximum sentence of ninety days, it is excluded from the definition of 

serious offense and is thus a petty offense. As such, we analyze Appellant’s 

argument under Crim.R. 44(B) rather than Crim.R. 44(A). 

{¶8} As this Court noted in State v. Weddington, the Supreme Court 

of Ohio has stated as follows regarding the waiver of counsel: 

“To discharge this duty properly in light of the strong 

presumption against waiver of the constitutional right to 

counsel, a judge must investigate as long and as thoroughly as 

the circumstances of the case before him demand. The fact that 
Ross App. No. 15CA3492 8

an accused may tell him that he is informed of his right to 

counsel and desires to waive this right 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 

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.” Weddington, 

supra, at ¶ 13; quoting State v. Gibson, 45 Ohio St.2d 366, 377, 

345 N.E.2d 399 (1976); quoting Von Moltke v. Gillies, 332 U.S. 

708, 723, 68 S.Ct. 316 (1948); see also State v. Martin, supra, at 

¶ 40. 

{¶9} Further, as this Court noted in State v. Jones, 4th Dist. Athens 

No. 14CA7, 2014-Ohio-5177, ¶ 11, "[t]he assertion of the right to selfrepresentation must be clear and unequivocal. Citing State v. Neyland at 

¶ 72; citing State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 

97, ¶ 68; State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 722 N.E.2d 

81, ¶ 38. Moreover, and as noted in Jones, "in order for the defendant to 

‘competently and intelligently * * * choose self-representation, he should be 
Ross App. No. 15CA3492 9

made aware of the dangers and disadvantages of self-representation, so that 

the record will establish that he knows what he is doing and his choice is 

made with eyes open.’ " Jones at ¶ 12; quoting Faretta, v. California, supra,

at 835; quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 

63 S.Ct. 236 (1943); State v. Mootispaw, supra, at ¶ 20. 

{¶10} Finally, and importantly, in State v. Vordenberge, supra, the 

First District Court of Appeals reasoned that being told of the right to 

counsel and waiving that right in a written form during an arraignment is 

"standing alone, insufficient to demonstrate a knowing, intelligent, and 

voluntary waiver of counsel for trial." Vordenberge at 493. The court went 

on to state that "[t]he inquiry necessary to establish a constitutionally valid 

waiver for trial is, by its nature, more suited to the trial court, and not the 

arraignment proceeding[,]" due to the fact that the " 'cattle call' nature of the 

arraignment proceedings does not lend itself to the judge or magistrate 

conducting an inquiry sufficient to pass constitutional muster." Id. 

{¶11} A review of the record presently before us indicates that 

Appellant appeared at an arraignment hearing on March 27, 2015, at which 

time he was orally advised of his right to counsel, informed the court that he 

did not want appointed counsel but "may seek outside counsel," signed a 

written waiver of counsel and entered a plea of not guilty. The transcript 
Ross App. No. 15CA3492 10

from the arraignment hearing contains the following exchange between 

Appellant and the trial court: 

"COURT: This is CRB1500527, the State against Zachory 

Alexander, Mr. Alexander, do you have a copy of the 

complaint? 

MR. ALEXANDER: Yes, sir. I do. 

COURT: You also have a pink sheet there advising you of 

the rights and the pleas. Do you understand those? 

MR. ALEXANDER: Yes, your Honor. 

COURT: Go ahead and sign the first blank line. This is a 

charge of domestic menacing. It's a second degree 

misdemeanor punishable by up to ninety days in jail and a fine 

up to $750.00. Do you understand what you're charged with? 

MR. ALEXANDER: Yes, your Honor. 

COURT: Do you want to hire an attorney? 

MR. ALEXANDER: Not court appointed, sir. 

COURT: You're going to hire one? 

MR. ALEXANDER: I may seek outside counsel. 

COURT: Do you want time to do that or are you going to 

enter a plea today? 
Ross App. No. 15CA3492 11

MR. ALEXANDER: I'll still enter a plea today. 

COURT: Go ahead and sign the second blank line on that 

pink sheet then, if you're going to go ahead without an attorney 

today. June 22nd will be the last day for trial to the court." 

{¶12} The "pink sheet" referred to by the trial court and signed by 

Appellant is entitled "Notice to All Accused of a Criminal or Traffic 

Offense." It provides as follows, with respect to the right to counsel and 

waiver thereof: 

"If you are charged with an offense, you have the following 

rights: 

* * * 

2. You have the right to have the charge explained to you and 

to understand the possible penalties. 

3. You have the right to be represented by a lawyer. You have 

the right to be granted a reasonable continuance to obtain a 

lawyer even though you many eventually wish to plead guilty 

or no contest. 

4. If you are charged with an offense that carries a possible jail 

sentence, and if you cannot afford to hire an attorney, you have 

the right to have a lawyer assigned to represent you. There will 
Ross App. No. 15CA3492 12

be a fee of $25 charged to anyone who either requests or 

obtains a public defender."3

Appellant also signed the "Waiver of an attorney" section at the bottom of 

the pink sheet, which provides as follows: "I understand that I have a 

constitutional right to counsel (a lawyer), and to have a lawyer assigned to 

represent me as stated above, I voluntarily waive my right to counsel and 

freely state that I do not want a lawyer." 

{¶13} Although there was a purported waiver of counsel for purposes 

of entering a pro se plea of not guilty at the arraignment hearing, we cannot 

conclude that such waiver was unequivocal, as Appellant expressly stated he 

"may seek outside counsel." Additionally, although the trial court did 

inform Appellant of his right to counsel, court-appointed counsel if needed, 

the charge against him and the possible penalty, there is no evidence before 

us that the trial court informed Appellant of the possible defenses to the 

charges and circumstances in mitigation thereof, or the dangers and 

 

3

 The State filed a motion to supplement the appellate record with a "Transcript of Opening Statements to 

the gallery of Defendants at the Opening of Arraignments for the Defendant in this Matter as such does 

contain an explanation of the Rights and Pleas and information relative to the Right to Counsel." This 

Court granted Appellant's motion and the county clerk filed a "Supplemental Notice of Transmission or 

Record or Supplement to Record" on November 12, 2015, stating that a transcript of Rights and Pleas held 

on March 27, 2015 was included. Our review of the transcript, however, indicates that no such "Rights and 

Pleas" was transcribed. Instead, the transcription begins with the trial court addressing Appellant 

individually as set forth above. We find, however, that the omission of this portion of the transcript is 

inconsequential. As argued by Appellant, a video soliloquy to a gallery of criminal defendants does not 

constitute a proper "inquiry" for purposes of Crim.R. 44. See State v. Donkers, 170 Ohio App.3d 509, 

2007-Ohio-1557, 867 N.E.2d 903, ¶ 34-35 (11th Dist.) (reasoning that while such a recording may satisfy 

Crim.R.10 that defendants be advised of their rights at arraignment, there was no evidence that defendant 

was present, was instructed to watch the video or understood the video.). 
Ross App. No. 15CA3492 13

disadvantages of self-representation, such as the fact that he would “ ‘be 

required to follow the same rules of procedure and evidence which normally 

govern the conduct of a trial.’ ” Quoting State v. Vordenberg, supra, at 493; 

quoting State v. Doane, 69 Ohio App.3d 638, 646-647, 591 N.E.2d 735 

(1990); see also State v. Boyle, 1st Dist. Hamilton No. C-950670, 1996 WL 

482945 (Aug. 28, 1996) (failure to warn defendant of hazards of the rules of 

evidence resulted in ineffective waiver of counsel). 

{¶14} This Court has previously held that “the right to retained 

counsel exists in all cases including ‘petty offenses.’ ” State v. Paul, 4th 

Dist. Athens No. CA-980, 1980 WL 350963, *4. In Paul, we further held 

that “[e]ven if it is concluded that a defendant fully understands his right to 

counsel, further inquiry, even in petty offense cases, of his desire and ability 

to retain counsel must be made.” Id. Moreover, we noted in Paul that “[i]f, 

in a ‘petty offense’ case, the defendant cannot obtain counsel and there is no 

waiver of counsel, the court may try the defendant without counsel, but no 

imprisonment may be a part of the penalty.” Id.; citing Crim.R. 44(B). In 

Paul, we further noted that the “[a]bility to retain counsel does not rest alone 

on indigency.” Id.; citing State v. Tymcio, 42 Ohio St.2d 39, 325 N.E.2d 556 

(1975). 
Ross App. No. 15CA3492 14

{¶15} The record before us shows there was no follow up or inquiry 

with Appellant regarding his wishes as to hiring counsel prior to the start of 

trial. Instead, the only discussion at the beginning of trial was as follows: 

"COURT: This is CRB1500527, the State against Zachory 

Alexander. He's here; he's not represented by counsel. 

Assistant Law Director Michele Rout is here on behalf of the 

State. This case scheduled [sic] for trial. Mrs. Rout, is the 

State ready to proceed? 

MS. ROUT: We are you Honor. * * * 

COURT: Mr. Alexander, are you ready to proceed with the 

trial? 

MR. ALEXANDER: Yes, your Honor. I have three 

witnesses here today. 

COURT: Alright. 

MR. ALEXANDER: We will be dealing all the evidence, 

apparently? Is that correct: 

COURT: I guess. Whatever is offered will be seen. 

MR. ALEXANDER: Can I put some evidence in as well, 

your Honor? 

COURT: Yeah, during your part of the trial, you will. 
Ross App. No. 15CA3492 15

MR. ALEXANDER: Thank you." 

This exchange prior to trial certainly does not meet the requirements for 

establishing a knowing, intelligent and voluntary waiver of Appellant's 

constitutional right to counsel or for an inquiry regarding his ability to retain 

counsel. Here, there was no unequivocal waiver of counsel at the 

arraignment hearing, and there was no inquiry by the trial court as to 

Appellant's failure to retain "outside counsel" or his continuing waiver of his 

constitutional right to counsel for purposes of trial. 

{¶16} Based on these facts, and in light of the foregoing statutory and 

case law, we conclude that the trial court did not demonstrate substantial 

compliance with Crim.R. 44(B). Thus, Appellant’s sole assignment of error 

is sustained, to the extent we construe it to be an argument based upon a 

violation of Crim.R. 44(B). Accordingly, although Appellant’s conviction is 

affirmed, we must reverse the trial court’s judgment with respect to the 

imposition of confinement and remand this cause to the trial court with the 

instruction to vacate the confinement portion of Appellant’s sentence. 

JUDGMENT AFFIRMED IN 

PART, REVERSED IN PART, 

AND CAUSE REMANDED FOR 

FURTHER PROCEEDINGS 

CONSISTENT WITH THIS 

OPINION. 
Ross App. No. 15CA3492 16

JUDGMENT ENTRY 

 It is ordered that the JUDGMENT BE AFFIRMED IN PART, 

REVERSED IN PART, AND CAUSE REMANDED FOR FURTHER 

PROCEEDINGS CONSISTENT WITH THIS OPINION. Appellant and 

Appellee shall split the costs. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Chillicothe Municipal Court to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE 

UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL 

COURT OR THIS COURT, it is temporarily continued for a period not to 

exceed sixty days upon the bail previously posted. The purpose of a 

continued stay is to allow Appellant to file with the Supreme Court of Ohio 

an application for a stay during the pendency of proceedings in that court. If 

a stay is continued by this entry, it will terminate at the earlier of the 

expiration of the sixty day period, or the failure of the Appellant to file a 

notice of appeal with the Supreme Court of Ohio in the forty-five day appeal 

period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme 

Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the 

appeal prior to expiration of sixty days, the stay will terminate as of the date 

of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

 

Harsha, J.: Concurs in Judgment and Opinion. 

Abele, J.: Concurs in Judgment Only. 

 

 For the Court, 

 BY: _____________________________ 

 Matthew W. McFarland, Judge 

NOTICE TO COUNSEL: Pursuant to Local Rule No. 14, this 

document constitutes a final judgment entry and the time period for 

further appeal commences from the date of filing with the clerk.