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State v. Harris

Court of Appeals of Ohio, Second District, Montgomery

June 2, 2017

STATE OF OHIO Plaintiff-Appellee
v.
ANGELA S. HARRIS Defendant-Appellant

         Criminal Appeal from Municipal Court T.C. NO. 16-TRD-1240

          NOLAN C. THOMAS, Prosecuting Attorney, Wilmington Pike, Kettering, Attorney for Plaintiff-Appellee.

          DANIEL J. O'BRIEN, Talbott Tower, Ludlow Street, Dayton Attorney for Defendant-Appellant.

          OPINION

          FROELICH, J.

         {¶ 1} After a bench trial in Kettering Municipal Court, Angela Harris was found guilty of a marked lanes violation, in violation of R.C. 4511.33, a minor misdemeanor. The charge stemmed from a two-vehicle collision at the intersection of West Alex Bell and McEwen Roads in Washington Township, Ohio. The trial court imposed a $25 fine and court costs. As a result of the conviction, two points would be assessed on Harris's driver's license. At Harris's request, the trial court stayed the judgment pending appeal.

         {¶ 2} Harris raises three assignments: (1) the trial court erred in failing to inform her of and obtain a waiver of her right to counsel, (2) the trial court committed plain error in allowing a deputy to testify as an accident reconstruction expert, and (3) her conviction was based on insufficient evidence and was against the manifest weight of the evidence. We will address them in an order that facilitates our analysis.

         {¶ 3} For the following reasons, the trial court's judgment will be affirmed.

         I. Defendant's Right to Counsel

         {¶ 4} In her first assignment of error, Harris claims that the trial court erred in failing to inform her of her right to counsel. Harris further states that she never knowingly, intelligently, and voluntarily waived her right to counsel.

         {¶ 5} In State v. Wheeler, 2016-Ohio-2964, 65 N.E.3d 182 (2d Dist.), we discussed a defendant's right to counsel when he (or she) is charged with a minor misdemeanor:

"[A] defendant has no constitutional right to court-appointed counsel when a criminal prosecution carries no possibility of incarceration." (Citations omitted.) State v. Woods, 2d Dist. Montgomery No. 16665, 1998 WL 906786, *4 (Dec. 31, 1998). Rather, a defendant merely has the right to retain counsel of his or her own choice. State v. Bettah, 5th Dist. Licking No. 05 CA 50, 2006-Ohio-1916, ¶ 42. Under that circumstance, we have held that a trial court is not obligated to advise a defendant of the right to counsel or to obtain a waiver of that right. State v. Minne, 2d Dist. Montgomery No. 23390, 2010-Ohio-2269, ¶ 20, citing State v. Sturgill, 3d Dist. Auglaize No. 2-01-34, 2002 WL 596114, *2 (Apr. 18, 2002), and State v. Wiest, 1st Dist. Hamilton No. C-030674, 2004-Ohio-2577, ¶ 26-27.
* * * Wheeler was charged with a minor misdemeanor, which does not carry the possibility of incarceration. Because he was not facing the possibility of incarceration, Wheeler had no right to a court-appointed counsel and the trial court did not have any obligation to advise Wheeler of the right to counsel or to obtain a waiver of that right. Therefore, we do not find that the trial court's failure to obtain a waiver of the right to counsel violated due process, as Wheeler had no such right to waive. Without this right, the act of determining whether Wheeler understood the ramifications of representing himself or his capability of doing so was unwarranted.

Wheeler at ¶ 23-24.

         {¶ 6} Here, Harris was charged with a marked lanes violation, in violation of R.C. 4511.33. Pursuant to R.C. 4511.33(B), a marked lanes violation is generally a minor misdemeanor.[1] As discussed in Wheeler, because a minor misdemeanor does not carry the possibility of incarceration, Harris had no right to court-appointed counsel, and the trial court was not required to inform her of her right to counsel and to obtain a waiver of her right to counsel.

         {¶ 7} Harris's first assignment of ...


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