State v. Gregory P. Noble

• Decision Date: 06 July 1990
• Docket Number: 90-LW-2332,88-L-13-203
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Gregory P. NOBLE, Sr., Defendant-Appellant.
• Court: Ohio Court of Appeals

STATE of Ohio, Plaintiff-Appellee, v. Gregory P. NOBLE, Sr., Defendant-Appellant.

No. 88-L-13-203.

90-LW-2332 (11th)

Court of Appeals of Ohio, Eleventh District, Lake County.

July 6, 1990

Criminal Appeal from Lake County Court of Common Pleas, Case Nos. 88 CR 013, 88 CR 209.

Steven C. Latourette, County Prosecutor, Ariana E. Tarighati Assistant County Prosecutor, Painesville, for plaintiff-appellee.

James K. Farrell, Jr., Painesville, for defendant-appellant.

Before CHRISTLEY, P.J., and MAHONEY and FORD, JJ.

OPINION

MAHONEY Judge.

On March 1, 1988, the appellant, Gregory P. Noble, Sr., was indicted by the Lake County Grand Jury for felonious assault with a firearm specification, having a weapon while under disability with a firearm specification, and carrying or using a firearm while under the influence of alcohol. On June 20, 1988, the appellant was also indicted for unlawful possession of a dangerous ordnance and three counts of negligent assault. The two cases against the appellant were subsequently consolidated.

On August 12, 1988, Michael A. Cicconetti was permitted to withdraw as appellant's counsel. The trial court then appointed the Lake County Public Defender to represent the appellant. On September 2, 1988, because of a conflict with the Public Defender's Office, a new attorney, Edward C Powers, was appointed to represent the appellant; and the matter was set for trial on September 12, 1988.

On September 8, 1988, a pretrial hearing was held before a referee from the Lake County Common Pleas Court, at which time the appellant indicated that he desired yet another new attorney because of a conflict with Edward C. Powers. The referee denied the appellant's request. Also at the September 8 pretrial, the appellant alleges that a plea arrangement was offered by the State of Ohio which he did not accept.

On September 12, 1988, the scheduled trial date, the matter was continued until September 19, 1988. The plea offer to the appellant was reaffirmed at that time.

On September 19, 1988, prior to trial, the appellant alleges that he was prepared to plead guilty in accordance with the plea offer that had previously been offered to him. The prosecutor indicated that the offer was no longer available and the appellant would now have to plead to a greater charge. The appellant rejected the latest offer and the case proceeded to trial.

The appellant represented himself, with Edward C. Powers being appointed to assist him in his defense throughout the trial. Powers performed the voir dire examination, cross-examined some of the state's witnesses, directly examined the appellant, and participated in part of the closing argument.

The appellant was found guilty of felonious assault, having a weapon while under disability, and unlawful possession of a dangerous ordnance. All three counts included firearm specifications.

On September 29, 1988, the appellant was sentenced to an indefinite term of six to fifteen years, with the minimum of six years to be served as actual incarceration, plus three years of actual incarceration for the firearm specification.

On October 5, 1988, the appellant filed a motion for a new trial. The trial court denied said motion on October 28 1988.

The appellant timely filed a notice of appeal from his conviction, setting forth the following assignments of error:

"1.The trial court erred to the prejudice of the pro se defendant in holding a felony jury trial without making sufficient inquiry to determine the presence of a knowing, intelligent, and voluntary waiver of the right to counsel.

"2.The trial court committed reversible error in not requiring enforcement of a plea bargain withdrawn by the State of Ohio on the day of trial after the pro se defendant indicated he accepted the plea bargain.

"3.A defendant who decides on self-representation and is appointed counsel to assist him in his self-representation is entitled to counsel which performs to an objective standard of reasonable representation.

"4.The trial court erred in overruling the defendant's motion for new trial.

"5.The court erred to the prejudice of the defendant in holding a pretrial conference in which a court referee presided."

In his first assignment of error, the appellant argues that the trial court erred in conducting the trial without first obtaining a knowing, intelligent, and voluntary waiver of counsel from him.

Crim.R. 44 states, in pertinent part:

"(A) Counsel in Serious Offenses. Where a defendant charged with a serious offense is unable to obtain counsel, counsel shall be assigned to represent him at every stage of the proceedings from his initial appearance before a court through appeal as of right, unless the defendant, after being fully advised of his right to assigned counsel, knowingly, intelligently, and voluntarily waives his right to counsel.

" * * *

"(C) Waiver of Counsel. Waiver of counsel shall be in open court and the advice and waiver shall be recorded as provided in Rule 22. In addition, in serious offense cases the waiver shall be in writing.

" * * * "

Crim.R. 2 indicates that any felony is a serious offense.

The Ohio Supreme Court has addressed the responsibility of the trial court to comply with Crim.R. 44. In State v. Gibson (1976), 45 Ohio St.2d 366, the court held:

"In order to establish an effective waiver of right to counsel, the trial court must make sufficient inquiry to determine whether defendant fully understands and intelligently relinquishes that right." Id. at syllabus two.

In addition, the particular facts and circumstances surrounding each case must be examined to determine if an intelligent waiver of counsel has occurred. This includes looking at the background, experience, and conduct of the defendant. Johnson v. Zerbst (1938), 304 U.S. 458.

In the present case, it is clear that the trial court made sufficient inquiry to determine that the appellant was fully aware of his right to counsel which he was relinquishing and the consequences of doing so. The trial court questioned the appellant, who was present in court with attorney Edward C. Powers, in the following manner:

" * * *

"THE COURT: * * * As I understand, I have been advised, Mr. Noble, that you wish to represent yourself in this matter?

"THE DEFENDANT: That's correct, your Honor.

"THE COURT: You understand you have the right to have an attorney, and the Court has appointed you other attorneys, and Mr. Powers is here ready to represent you, and you wish to go forward?

"THE DEFENDANT: I understand, Your Honor.

"THE COURT: Pardon me?

"THE DEFENDANT: I understand.

"THE COURT: Mr. Powers will sit with you at the counsel table and assist you in whatever way he can. However, it is going to be up to you to voir dire the Jury, ask and cross-examine all the witnesses; do you understand?

" * * *

"THE COURT: You have effectively waived your right to counsel, you understand that?

"THE DEFENDANT: I understand, Your Honor.

"THE COURT: You will sign a document to that effect before we proceed.

" * * * "

At that point in the proceedings, the appellant admits to signing a waiver of counsel which stated:

"I, GREG NOBLE, do hereby waive my right to my court appointed counsel in the within case. It is my desire to represent myself in this matter."

It is undisputed that the appellant made a waiver of counsel in open court that was recorded and put in writing. Additionally, the appellant had previously been convicted of a felony, which suggests that he had some knowledge of the justice system. United States v. Bailey (C.A.D.C.1982), 675 F.2d 1292. Further, the appellant had been represented by three different attorneys during the course of his case, which indicates that he must have known the gravity of the charges against him. The fact that the appellant had been offered two separate plea bargains shows that he was aware of the possible sentences he faced. From the circumstances surrounding the present case, it is apparent that the appellant made an intelligent waiver of his right to counsel.

It is also important to note that the appellant was assisted throughout the trial by attorney Edward C. Powers. Powers, who was appointed to sit at the counsel table and assist the appellant, performed the voir dire examination, cross-examined many of the state's key witnesses, performed the direct examination of the appellant, and gave part of the closing argument.

For the foregoing reasons, it is apparent that the trial court made a sufficient inquiry to determine that the appellant made a knowing, intelligent, and voluntary waiver of the right to counsel.

The record reveals that truly the appellant had the benefit of representing himself during the course of the trial, when he felt it was to his benefit, and then allowing attorney Powers to examine and cross-examine witnesses when he decided that was in his best interest. The record also indicates that the questioning of witnesses by the appellant and attorney Powers was conducted in a very efficient and indepth manner, resulting in the eliciting of all the information that each witness possessed.

The appellant's first assignment of error is without merit.

In his second assignment of error, the appellant asserts that the trial court erred in not requiring enforcement of the original plea bargain offered to him when he indicated on the day of the trial that he wished to accept it.

The appellant relies on Cooper v. United States, (C.A. 4, 1979), 594 F.2d 12, wherein the court stated:

" * * * under appropriate circumstances^which we find here^a constitutional right to enforcement of plea proposals may arise before any technical "contract' has been formed, and on the basis alone of expectations reasonably...