Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From: Hamilton County Court of Common Pleas
TRIAL No. B-1705238
W. Schneider and Karl H. Schneider, Special Prosecuting
Attorneys, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David
Hoffman, Assistant Public Defender, for Defendant-Appellant.
There are perils for anyone, particularly a criminal
defendant, forsaking a lawyer and proceeding pro se at trial.
But just as the Constitution protects the right to counsel,
it likewise protects the right to proceed pro se. When a
defendant knowingly, voluntarily, and intelligently makes
that choice, the trial court is obliged to respect it. Here,
the defendant elected to proceed pro se and then had second
thoughts after his conviction, faulting the trial court for
not undertaking a second colloquy with him. For the reasons
explained below, we find these arguments without merit and
In 2017, defendant-appellant Robert Lee Jackson was charged
with violating R.C. 2921.05(A) (retaliation), a felony of the
third degree. As the case proceeded towards trial, Mr.
Jackson elected to proceed pro se with his own defense and
waived his right to counsel in October 2017. The trial court
appropriately questioned Mr. Jackson at the time to ensure
that his decision was knowing and voluntary. Upon waiving his
right to counsel, the court informed Mr. Jackson that it
would appoint a "standby counsel" to "be there
basically ready to fill in * * * if you decide you wish to
have legal counsel represent you in this case."
In January 2018, the court then reconvened to proceed with
voir dire. At that time, the court notified Mr. Jackson that
the standby counsel was dealing with a serious medical
emergency and would not be present. The court then asked Mr.
Jackson if he wished to proceed without standby counsel.
After some discussion, Mr. Jackson confirmed that he did and
declined to have standby counsel appointed as his counsel.
The jury ultimately found Mr. Jackson guilty, and the trial
court sentenced him to 36 months of incarceration.
On appeal, Mr. Jackson raises a single assignment of error.
He asserts that the trial court erred by allowing him to
proceed pro se without engaging in a full (and second)
colloquy to reaffirm his waiver of the right to counsel after
standby counsel was no longer available.
The right to counsel for the criminally accused is enshrined
in both the Sixth Amendment to the United States Constitution
and the Ohio Constitution. Sixth Amendment to the United
States Constitution; Article I, Section X, Ohio Constitution.
Nevertheless, a defendant may waive his or her right to
counsel and proceed pro se so long as that waiver is made
voluntarily, knowingly and intelligently. State v.
Nelson, 2016-Ohio-8064, 75 N.E.3d 785, ¶ 18 (1st
Dist.). For such a waiver to be valid though, the record must
demonstrate that the trial court made a sufficient inquiry to
determine that the "defendant fully understood and
intelligently relinquished his or her right to counsel."
State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471,
816 N.E.2d 227, ¶ 39. Crim.R. 44(C) further provides
that "[w]aiver of counsel shall be in open court and the
advice and waiver shall be recorded * * *. In addition, in
serious offense cases the waiver shall be in writing."
We review the propriety of a defendant's waiver of his or
her right to counsel de novo. Nelson at ¶ 17.
Here Mr. Jackson does not challenge his initial waiver in
October. We likewise reviewed the record and concluded that
the trial court appropriately questioned Mr. Jackson about
his decision and found that he knowingly, voluntarily, and
intelligently elected to forego a lawyer. The wrinkle emerges
with the trial court's assurance (at the October hearing)
that Mr. Jackson would have access to standby counsel. When
standby counsel became unavailable for the January trial, Mr.
Jackson insists that he should have been afforded a
second waiver colloquy concerning his right to
counsel, and that the failure to do so rendered his initial
decision to proceed pro se ineffective.
In support of this claim, Mr. Jackson points to the Eighth
District's decision in State v. Birinyi, 8th
Dist. Cuyahoga Nos. 95680 and 95681, 2011-Ohio-6257.
Birinyi, however, is distinguishable on its facts
from Mr. Jackson's case. Unlike here, the events in
Birinyi transpired over the course of two trials,
with four different judges. Id. at ¶ 1-10. In
Birinyi after his initial waiver, the defendant was
subjected to additional charges, with a "heightened
range of allowable punishments, and various possible
defenses." Id. at ¶ 26. The Eighth
District held that, despite the valid waiver of counsel in
the defendant's first trial, because of the changed
circumstances in the second trial, a new waiver was required
and the court erred when it failed to hold a second waiver
colloquy. Id. at ¶ 28.
While we acknowledge that, just as in Birinyi, there
are occasions when changed circumstances may require the
defendant's waiver of the right to counsel to be
reobtained, such a scenario does not confront us now. Here,
Mr. Jackson was not charged with additional crimes since the
October waiver, and no new defenses or additional punishments
were available. Finally, the events at issue in this appeal
all occurred during the same trial, merely three months
Moreover, while trial courts may well decide to appoint
standby counsel, defendants do not have an automatic right
entitling them to standby counsel. State v.
Obermiller,147 Ohio St.3d 175, 2016-Ohio-1594, 63
N.E.3d 93, ¶ 50 ("neither state nor federal
jurisprudence requires a court to inform a defendant who
seeks to waive counsel of the potential for standby
counsel."); State v. Newman, 5th Dist. Stark
No. 2017CA00219, 2018-Ohio-3253, ¶ 26 (trial court did
not err in limiting defendant's interactions with standby
counsel as a defendant does not have an absolute right to
standby counsel); Martin,103 Ohio St.3d 385,
2004-Ohio-5471, 816 N.E.2d 227, at ¶ 28 ("Once the
right to counsel is properly waived, trial courts are
permitted to appoint standby counsel to ...