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City of Berea v. Ferich

Court of Appeals of Ohio, Eighth District

July 25, 2013

CITY OF BEREA, PLAINTIFF-APPELLEE
v.
MARK FERICH, DEFENDANT-APPELLANT

Criminal Appeal from the Berea Municipal Court Case No. 12 TRD 02122.

ATTORNEYS FOR APPELLANT: Joseph C. Patituce Megan M. Patituce Jennifer Scott Catherine R. Meehan Patituce & Scott, L.L.C.

ATTORNEY FOR APPELLEE: James N. Walters, III Prosecuting Attorney City of Berea.

BEFORE: Blackmon, J., Rocco, P.J., and E.T. Gallagher, J.

JOURNAL ENTRY AND OPINION

PATRICIA ANN BLACKMON, J.

{¶ 1} Appellant Mark Ferich appeals his convictions following a bench trial in Berea Municipal Court, and assigns the following errors for our review:

I. The trial court erred when it denied appellant his constitutional right to the effective assistance of counsel. (TR. 5)
II. The trial court erred when it denied appellant his constitutional right to compulsory process. (TR. NA.)
III. The trial court erred when it denied appellant his right to a closing argument. (TR. 128)
IV. Appellant was denied due process of law where his conviction was not supported by legally sufficient evidence. (TR. NA)
V. Appellant was denied due process of law where his conviction was against the manifest weight of the evidence.

{¶2} Having reviewed the record and pertinent law, we reverse Ferich's convictions and remand for a new trial. The apposite facts follow.

{¶ 3} On May 23, 2012, the city of Berea charged Ferich with one count of failure to stop after an accident, a first degree misdemeanor, as well as one count of driving left of center, a minor misdemeanor. Ferich pleaded not guilty at the arraignment. On June 26, 2012, the matter proceeded to a bench trial.

{¶ 4} Prior to trial, the trial court stated the charges, the maximum penalties, and indicated that it was his understanding that Ferich had decided to proceed without an attorney. The trial court advised Ferich that he could hire an attorney, or if he could not afford one, the court would appoint one at no cost.

{¶ 5} However, Ferich indicated that he did not think an attorney was necessary. Thereafter, Ferich executed a written waiver and proceeded pro se. After the testimony of five witnesses for the city of Berea, as well as that of Ferich, the trial court found him guilty of both charges.

{¶6} On November 1, 2012, the trial court fined Ferich $100, plus court cost, imposed a six-month driver's license suspension, and placed him on one year of probation. Ferich now appeals.

Waiver of Counsel

{¶7} In the first assigned error, Ferich argues he was denied the effective assistance of counsel because the trial court erred in granting his request to represent himself. Ferich contends his waiver of his constitutional right to counsel was not made knowingly and intelligently.

{¶ 8} Although a defendant may eloquently express a desire to represent himself, a trial court must still satisfy certain parameters to ensure that the defendant's waiver of the constitutional right to counsel is made knowingly, intelligently, and voluntarily. State v. Moore, 8th Dist. No. 95106, 2012-Ohio-1958, 970 N.E.2d 1098, ¶ 43.

{¶ 9} In all cases where the right to counsel is waived, the court must make sufficient inquiry to determine whether the defendant fully understands and intelligently relinquishes that right. State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph two of the syllabus. For a petty offense, voluntary and knowing waiver may be shown through the court's colloquy with the defendant. State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024 54.

{¶ 10} In Gibson supra, the Ohio Supreme Court held a trial court must provide sufficient warning to the defendant of the seriousness of the trial and the possible results it ...


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