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State v. Yeager

Court of Appeals of Ohio, Ninth District, Summit

February 14, 2018

STATE OF OHIO Appellee
v.
ANDRE M. YEAGER Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. CR-2016-07-2429-A CR-2016-11-3971

          NEIL P. AGARWAL, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          TEODOSIO, PRESIDING JUDGE

         {¶1} 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.

         I.

         {¶2} 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.

         {¶3} 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 prison.

         {¶4} 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 review.

         II.

         ASSIGNMENT OF ERROR ONE

         THE 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.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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 counsel.

         {¶11} 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."

         {¶12} 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 ΒΆ 13 (court may consider other relevant factors when allowing defendant to proceed pro se). Upon review of the ...


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