Court of Appeals of Ohio, Fourth District, Jackson
Timothy Young, Ohio Public Defender, and Nikki Trautman
Baszynski, Ohio Assistant Public Defender, Columbus, Ohio,
Lovett, Jackson County Prosecuting Attorney, and Nick Wille,
Jackson County Assistant Prosecuting Attorney, Jackson, Ohio,
DECISION AND JUDGMENT ENTRY
HOOVER, PRESIDING JUDGE
Nathan Tilley ("Tilley") appeals from the judgment
of the Jackson County Court of Common Pleas. The trial court
had revoked his community control based on his pro se guilty
plea to violating it and had sentenced him to serve the
underlying 36-month prison sentence and ordered him to pay
the costs of the case.
Tilley initially asserts that his conviction and sentence
should be reversed because the trial court did not obtain a
knowing, intelligent, and voluntary waiver of his right to
counsel. The totality of the circumstances in this case
include: (1) the trial court failed to explicitly advise
Tilley that he had the right to be represented by retained
counsel as required by Crim.R. 32.3(B); (2)Tilley did not
waive his right to counsel in writing as required by Crim.R.
32.3(D) and 44(C); (3)the trial court did not discuss any
possible defenses to the charge of violating community
control or circumstances in mitigation of the violation with
Tilley before accepting his waiver of counsel; and (4) the
trial court did not discuss the dangers and disadvantages of
self-representation with Tilley when he advised the court
that he was representing himself. Based on these
circumstances, the trial court did not obtain a knowing,
intelligent, and voluntary waiver. We sustain Tilley's
first assignment of error.
Tilley next contends that the trial court erred in assessing
certain unauthorized costs related to subpoenas issued in the
underlying criminal case, but res judicata precluded him from
claiming error in the court's imposition of costs when he
did not file a timely appeal or move to modify the original
sentencing entry. We overrule Tilley's third assignment
Tilley finally argues that the clerk of courts improperly
issued a writ to the Jackson County Sheriff to execute on his
property for the unpaid costs. We agree because under the
sentencing entries, he was not yet liable to pay the ordered
costs; and the final sentencing entry has now been reversed
in light of our disposition of his first assignment of error.
We sustain Tilley's fourth assignment of error.
Having sustained Tilley's first and fourth assignments of
error, we reverse his conviction and sentence as well as the
writ of execution for costs that are not yet due and remand
for further proceedings consistent with this opinion.
Facts and Procedural Background
In May 2014, the Jackson County Grand Jury returned an
indictment charging Tilley with one count of illegal
possession or assembly of chemicals for the manufacture of
drugs in violation of R.C. 2925.041(A), a felony of the third
degree. Tilley, who was represented by retained counsel,
entered a plea of not guilty to the charge and filed a motion
to suppress evidence. The court issued subpoenas for
witnesses to appear at the suppression hearing. After the
trial court held a hearing, it denied the motion to suppress.
Tilley then pleaded guilty to the charge; and the trial court
convicted him. In July 2016, the court sentenced Tilley to
five years of community control, with conditions that he
consume no alcohol, illegal drugs, or narcotics of any type
and that he pay court costs "within the term of his
community control." The trial court notified Tilley that
violation of his community control would lead to a 36-month
prison term and an administrative increase up to an
additional one-half of the stated term. In August 2016, the
court sent Tilley an itemized bill of $357 for costs incurred
in the criminal case. Tilley did not appeal from either his
July 2016 sentencing entry or contest the August 2016
itemized bill for costs by filing a motion to waive or modify
In October 2016-three months after Tilley had been sentenced
and two months after he had been sent the itemized bill for
costs-the State of Ohio ("State") filed a notice
that Tilley had violated his community control by consuming
Oxycodone. At a hearing in early November 2016, Tilley
appeared without counsel. He advised the court that he did
not want court-appointed counsel; and he entered a plea of
guilty to the charge that he violated his community control.
As a result, the court revoked his community control and
sentenced him to the previously specified 36-month prison
term. In its November 8, 2016 sentencing entry, the trial
court reiterated the sentence that it had orally imposed at
the hearing, but added an order that Tilley "pay the
costs of this action within 60 days from the date of his
release from prison." In a writ issued by the clerk of
courts that same day, the sheriff was commanded to execute on
Tilley's goods, chattels, land, and tenements for $551 in
costs allegedly incurred in the case.
Tilley filed a motion for leave to file a delayed appeal in
January 2017 with a notice of appeal. After Tilley remedied
deficiencies, this Court granted Tilley's motion for
leave to file the delayed appeal, which is now before this
Court for decision.
Assignments of Error
Tilley assigns the following errors for our review:
I. The trial court erred when it accepted Nathan Tilley's
admission of guilt without properly advising Mr. Tilley of
his right to retained counsel or obtaining a written waiver
of counsel. Crim.R. 22, 32.3, 44; Tr. 96-99.
II. The trial court improperly imposed court costs. State
v. Jackson, Slip Opinion No. 2016-Ohio-8127; State
v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d
278; R.C. 2947.23.
III. The trial court assessed, and the Clerk of Courts
collected, unauthorized court costs. R.C. 311.17; Subpoenas
(Nov. 19, 2014; Nov. 21, 2014; Dec. 15, 2014; Dec. 16, 2014;
Jan. 27, 2015).
IV. The Clerk of Courts issued improperly, and without
authority, an execution against Nathan Tilley's property
for the costs of prosecution. R.C. 2949.14; R.C. 2949.15;
Execution of Costs in Felony (Nov. 8, 2016); Second Notice to
Pay Costs (Jan. 4, 2017); Itemized Bill (Jan. 5, 2017); Final
Notice (Aug. 17, 2017); Cost Bill; Tr. 96.
Law and Analysis
Tilley Did Not Knowingly, Intelligently, and Voluntarily
Waive his Right to Counsel
"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 and 07CA3187,
2009-Ohio-523, ¶ 12; see also Article I,
Section 10 of the Ohio Constitution. Because a defendant also
has the right of self-representation, he may"
'defend himself without counsel when he voluntarily, and
knowingly and intelligently elects to do so.'"
State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471,
816 N.E.2d 227, ¶ 24, quoting State v. Gibson,
45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph one of
the syllabus. "To establish an effective waiver of the
right to counsel, the trial court must make sufficient