FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
SUMMIT, OHIO CASE Nos. CR-2016-07-2429-A CR-2016-11-3971
P. AGARWAL, Attorney at Law, for Appellant.
BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY,
Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
TEODOSIO, PRESIDING JUDGE
Defendant-Appellant, Andre Yeager, appeals from his
convictions in the Summit County Court of Common Pleas. This
Court affirms in part and reverses in part.
A grand jury indicted Mr. Yeager in two separate criminal
cases. In Case No. 2016-07-2429(A), he was indicted on one
count each of receiving stolen property, possessing criminal
tools, obstructing official business, and driving under
suspension. In Case No. 2016-11-3971, he was indicted on four
counts of breaking and entering. A court-appointed attorney
initially represented Mr. Yeager in both cases, but withdrew
from representation when Mr. Yeager declared his intention to
represent himself. The trial court ultimately accepted Mr.
Yeager's decision to waive his right to counsel and later
appointed stand-by counsel to assist him at trial.
Mr. Yeager's two cases were tried together. His counts
for possessing criminal tools and driving under suspension
were ultimately dismissed, but the jury found him guilty of
each of his remaining counts. In Case No. 2016-07-2429(A),
the court sentenced him to a total of six months in prison.
In Case No. 2016-11-3971, the court sentenced him to a total
of four years in prison and ordered him to pay $14, 928.18 in
restitution. The court ordered his sentences to run
consecutively for a total of four and one-half years in
Mr. Yeager appealed his convictions in both cases, and this
Court consolidated the two appeals for purposes of review and
decision. Mr. Yeager raises six assignments of error for our
OF ERROR ONE
TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR WHEN IT
PERMITTED DEFENDANT TO PROCEED PRO SE WITHOUT SUBSTANTIALLY
COMPLYING WITH CRIM.R. 44(A), AND IN VIOLATION OF SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION.
In his first assignment of error, Mr. Yeager argues that the
trial court violated Crim.R. 44 and his constitutional rights
by allowing him to act pro se. He asserts that he is entitled
to relief because the court did not ensure that his waiver of
counsel was knowingly, voluntarily, and intelligently entered
or reduced to writing and signed in open court. This Court
rejects Mr. Yeager's argument.
The Sixth Amendment guarantees a defendant both the right to
counsel and "the right to elect self-representation
instead." State v. Tucker, 9th Dist. Lorain No.
13CA010339, 2016-Ohio-1353, ¶ 11. A defendant who wishes
to represent himself must knowingly, voluntarily, and
intelligently waive his right to counsel. State v.
Gibson, 45 Ohio St.2d 366 (1976), paragraph one of the
syllabus. Accord Crim.R. 44(A). Before accepting a
defendant's waiver, "the trial court must make
sufficient inquiry to determine whether [the] defendant fully
understands and intelligently relinquishes [his] right."
Gibson at paragraph two of the syllabus. Though
"no one factor is dispositive, " the Court should
consider whether the defendant was advised of "the
dangers and disadvantages of self[-]representation, "
"the nature of the charges and the range of allowable
punishments, " and "the possible defenses to the
charges and applicable mitigating circumstances."
State v. Trikilis, 9th Dist. Medina Nos. 04CA0096-M
& 04CA0097-M, 2005-Ohio-4266, ¶ 13. Additionally,
the court may consider "various other factors, including
the defendant's age, education, and legal
experience." Id. It is not necessary that the
court "'undertake pseudo-legal representation of a
defendant by specifically advising him of possible viable
defenses or mitigating circumstances * * *.'"
State v. Bloodworth, 9th Dist. Summit No. 26346,
2013-Ohio-248, ¶ 12, quoting State v. Ragle,
9th Dist. Summit No. 22137, 2005-Ohio-590, ¶ 12.
"[A] broader discussion of defenses and mitigating
circumstances as applicable to the pending charges is
sufficient." Trikilis at ¶ 13.
In felony cases, a waiver of counsel must be made in open
court, recorded, and in writing. Crim.R. 44(C). "If a
trial court substantially complies with Crim.R. 44(A),
however, the failure to obtain a written waiver is harmless
error." State v. Tucker, 9th Dist. Lorain No.
14CA010704, 2016-Ohio-1354, ¶ 17. A court substantially
complies with Crim.R. 44(A) "by making a sufficient
inquiry to determine whether the defendant fully understood
and intelligently relinquished his or her right to
counsel." State v. Martin, 103 Ohio St.3d 385,
2004-Ohio-5471, ¶ 39. This Court "review[s] whether
a defendant has made a knowing, voluntary, and intelligent
waiver of his right to counsel de novo." State v.
Ott, 9th Dist. Summit No. 27953, 2017-Ohio-521, ¶
5. "In determining the sufficiency of the trial
court's inquiry in the context of a defendant's
waiver of counsel, this Court reviews the totality of the
circumstances." Trikilis at ¶ 13.
Mr. Yeager had counsel for almost five months before he filed
a pro se motion to represent himself. The court held a
hearing on his motion the following week and, after
permitting counsel to withdraw, spoke directly with Mr.
Yeager. The court explained to Mr. Yeager the State's
current plea offer, all of the charges against him, and the
possible maximum sentences he faced. See id. The
court also repeatedly emphasized that he would be "at a
tremendous disadvantage" if he chose to represent
himself because he would be responsible for knowing the rules
of evidence and criminal procedure, identifying the issues,
and raising any applicable defenses. The court offered to
appoint new counsel for Mr. Yeager or to afford him more time
to consider, but Mr. Yeager declined and indicated that he
wished to represent himself. The court then asked Mr. Yeager
whether he understood its warnings about self-representation
and whether he understood that he would not receive
"special consideration" if he chose to go forward
without counsel. Each time the court inquired of Mr. Yeager,
he indicated that he understood and wished to represent
himself. The court, therefore, accepted Mr. Yeager's
waiver of his right to counsel.
The record reflects that the court did not strictly comply
with Crim.R. 44(A) when it accepted Mr. Yeager's waiver
because it did not reduce his waiver to writing. As noted,
however, strict compliance with Crim.R. 44(A) is not required
so long as a court, through adequate inquiry, ensures that a
defendant fully understands and intelligently relinquishes
his right to counsel. See Tucker, 2016-Ohio-1354, at
¶ 17; Martin, 103 Ohio St.3d 385,
2004-Ohio-5471, at ¶ 39. Though Mr. Yeager argues that
the court engaged in an inadequate inquiry, the record belies
his argument. Moreover, to the extent that the court's
initial inquiry was in any way limited, the record reflects
that the court revisited the topic of counsel a number of
times before Mr. Yeager actually went to trial.
Four months ultimately elapsed between Mr. Yeager's
initial request to represent himself and his trial. During
that time, he filed a wealth of motions pertaining to
discovery, potential Brady v. Maryland violations,
prosecutorial misconduct, and suppression. The court
conducted multiple pre-trials and, at the majority of them,
spoke to Mr. Yeager about his decision to waive counsel. The
court informed Mr. Yeager that he was placing himself at a
disadvantage by not having counsel who could locate
witnesses, timely file the proper motions, and sort out
discovery matters on his behalf. Nevertheless, Mr. Yeager
repeatedly rejected the court's offer to appoint him new
One month before trial, the court held another pretrial and
once more encouraged Mr. Yeager to accept new counsel. The
court noted that an attorney would not suffer from the same
time and access restrictions that Mr. Yeager faced while
incarcerated. The court also asked Mr. Yeager whether he had
a high-level of confidence as far as examining witnesses and
speaking with the jury because he would have to handle those
matters himself if he chose not to have counsel. The court
informed Mr. Yeager that, while he seemed "bright
enough, " the court always discouraged lay people from
representing themselves due to their unfamiliarity with the
rules of evidence and procedure. During that conversation,
the court explained to Mr. Yeager the concept of stand-by
counsel and asked whether he would be willing to accept that
option. Mr. Yeager ultimately agreed to stand-by counsel, but
reiterated that he did not wish to accept the appointment of
another attorney. Mr. Yeager represented to the court that
"this [was] not [his] first time being pro se."
Upon review, we must conclude that Mr. Yeager validly waived
his right to counsel. The record reflects that he understood
his right, but was adamant about his decision to represent
himself. See Tucker,2016-Ohio-1354, at ¶
18-19. He indicated, on more than one occasion, that he
understood he would be bound by the rules of evidence and
criminal procedure if he chose to represent himself. He also
indicated that he understood the charges against him and
maximum penalties he faced if convicted. Further, he
indicated that he understood the court's warnings about
being "at a tremendous disadvantage" if he chose to
represent himself. "The trial court sufficiently
explained the dangers of self-representation, the nature of
the charge[s] against [him], and the allowable penalties for
[those] charge[s]." State v. Ragle, 9th Dist.
Summit No. 22137, 2005-Ohio-590, ¶ 14. Moreover, there
was evidence in the record that Mr. Yeager actively
participated in the proceedings, seemed "bright, "
and represented that "this [was] not [his] first time
being pro se." See Trikilis,2005-Ohio-4266, at
¶ 13 (court may consider other relevant factors when
allowing defendant to proceed pro se). Upon review of the