State v. Jones
| Decision Date | 01 February 2019 |
| Docket Number | Court of Appeals No. S-18-013 |
| Citation | 2019 Ohio 301 |
| Parties | State of Ohio Appellee v. Hayward Jones Appellant |
| Court | Ohio Court of Appeals |
2019 Ohio 301
State of Ohio Appellee
v.
Hayward Jones Appellant
Court of Appeals No. S-18-013
COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
February 1, 2019
Trial Court Nos. 15CR942 15CR1040
DECISION AND JUDGMENT
Dave Yost, Ohio Attorney General, and Christopher L. Kinsler, Assistant Attorney General, for appellee.
Geoffrey L. Oglesby, for appellant.
SINGER, J.
{¶ 1} Appellant, Hayward Jones, appeals the March 8, 2018 judgment of the Sandusky County Court of Common Pleas convicting him, following a jury trial, of 57 counts of drug law violations including engaging in a pattern of corrupt activity,
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conspiracy, and trafficking in various amounts of cocaine. For the reasons that follow, we reverse and vacate in part, and affirm in part.
{¶ 2} Appellant sets forth the following assignments of error:
I. THE COURT ERRED IN FORCING MR. JONES TO USE INEFFECTIVE STANDBY COUNSEL.
II. THE COURT ERRED IN NAMING SOMEONE AN EXPERT WHEN THEIR OWN TESTIMONY IS INCONSISTENT.
III. THE COURT ERRED IN ALLOWING A VERDICT THAT IS AGAINST THE MANIFEST WEIGHT OF EVIDENCE.
IV. MR. JONES'S MOTION FOR ACQUITTAL WAS IMPROPERLY DENIED.
V. THE COURT ERRED IN GROUPING THE OFFENSES TOGETHER ON THE VERDICT FORMS.
VI. THE COURT ERRED IN SENTENCING MR. JONES TO MAXIMUM AND MANDATORY TIME AGAINST THE FACTORS OF SENTENCING.
{¶ 3} Appellant was indicted in two separate cases for 104 counts related to conspiracy and drug trafficking. He was charged with 9 counts in case No. 15CR942,
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and 95 counts in case No. 15CR1040.1 The cases were consolidated for purposes of trial on April 7, 2016.
{¶ 4} Prior to trial, several of the counts were severed. Appellant pled not guilty to the remaining counts. The matter was set for trial to be held on August 25, 2016, but a tentative agreement was reached and a change of plea hearing was set for August 19, 2016.
{¶ 5} The change of plea did not happen and, instead, appellant terminated his court-appointed counsel and elected to proceed without counsel. The court permitted counsel to withdraw.
{¶ 6} Appellant moved for a continuance of the August 25, 2016 trial date, and the court continued the matter. Trial was set for December 1, 2016.
{¶ 7} A pretrial was held on September 26, 2016, and appellant indicated that he was hoping to retain counsel to proceed to trial. The court clarified that the onus was on him.
{¶ 8} On November 21, 2016, appellant moved the court to continue the matter and to appoint him two attorneys. He specifically requested "two or more lawyers," arguing they were needed in order for him "to receive the best, most impartial legal representation." On November 23, 2016, the trial court denied the motion, stating that it
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was not going to allow appellant to "further manipulate the Court and continue the matter any further." The court appointed a seasoned attorney as standby counsel for appellant.
{¶ 9} The matter proceeded to jury trial on December 1, 2016. Appellant represented himself with assistance from his standby counsel.
{¶ 10} At trial, the prosecution presented direct testimony from 13 different law enforcement agents ("officers"). Appellant completed the trial pro se, and he consulted with his standby counsel throughout the various proceedings.
{¶ 11} The officers testified about the extensive surveillance and investigation that was involved in their case against appellant. Appellant called one of the officers on direct examination. Admitted as evidence were call logs and actual call recordings. These reflected calls and text messages in which others sought drugs from or agreed to provide drugs to appellant. Expert testimony was offered by various officers to explain the code language used in the calls/texts.
{¶ 12} On December 31, 2016, appellant was found guilty and sentenced to a total prison term of 13 years on all counts in both cases. The consolidated judgment was journalized on March 8, 2018. Appellant timely appeals.
{¶ 13} In the first assigned error, appellant argues he was deprived of effective assistance of counsel because the trial court forced him to proceed to trial without counsel or "a fair chance." Appellee contends appellant cannot establish ineffective assistance because he chose to proceed pro se at trial.
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{¶ 14} In evaluating ineffective assistance of counsel claims, the test is "whether the accused, under all the circumstances, * * * had a fair trial and substantial justice was done." State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragraph four of the syllabus; see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A court must determine whether there has been a substantial violation of any of defense counsel's essential duties to his client and whether the defense was prejudiced by counsel's ineffectiveness. See State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999).
{¶ 15} Appellant makes three main arguments in this first assigned error, and we will address each in turn.
{¶ 16} Appellant first argues the trial court erred in determining that he knowingly, intelligently, and voluntarily waived his right to counsel.
{¶ 17} The Sixth and Fourteenth Amendments to the United States Constitution afford most criminal defendants the right to the assistance of counsel before being convicted and punished by imprisonment. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1953).
{¶ 18} Crim.R. 44 states in pertinent part as follows:
(A) Counsel in serious offenses. Where a defendant charged with a serious offense is unable to obtain counsel, counsel shall be assigned to
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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.
See, e.g., State v. Bumphus, 6th Dist. Erie No. E-03-043, 2005-Ohio-536, ¶ 13. See also Crim.R. 22 ("Proceedings may be recorded in shorthand, or stenotype, or by any other adequate mechanical, electronic or video recording device.").
{¶ 19} "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." See id., citing State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph two of the syllabus. "To be valid a defendant's waiver of counsel must be made with an apprehension of the nature of the charges, the statutory offense included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter." (Inner quotations and citations omitted.) Id.
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{¶ 20} "The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Id., citing Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.Ed. 1461, 58 S.Ct. 1019 (1938). "A sketchy or minimal inquiry touching upon only some of the above-enumerated factors will not adequately establish an effective waiver of counsel." Id., citing State v. McQueen, 124 Ohio App.3d 444, 447, 706 N.E.2d 423 (10th Dist.1997).
{¶ 21} Here, and in terms of a written waiver, there is a journal entry in the record in which appellant waived his right to counsel. More specifically, the August 19, 2016 journal entry states: "Defendant this day has elected to represent himself at jury trial scheduled for 8/25/16 and to discharge his appointed counsel, Russell Leffler. Defendant by his signature below knowingly makes this constitutional decision to represent himself." Appellant signed this entry.
{¶ 22} In terms of an open-court waiver, there is no transcript in the record of the August 19, 2016 hearing. Our review of appellant's praecipe to the trial court clerk shows no request for transcript of the hearing. Therefore, we must presume the regularity of the proceedings and conclude the court acted appropriately in accepting appellant's waiver of counsel. See App.R. 9(E); see also State v. Newman, 6th Dist. Wood No. WD-15-031, 2016-Ohio-2667, ¶ 7.
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{¶ 23} Based on appellant's actions, we find he knowingly, intelligently, and voluntarily waived his right to counsel under Crim.R. 44(C), and thus there is no effective assistance of counsel claim based on that argument.
{¶ 24} The court eventually appointed Leffler as standby counsel to assist appellant in his quest to represent himself.
{¶ 25} Appellant now challenges this appointment as a second argument within his first assigned error, asserting it presented additional issues concerning ineffective assistance because he should have been afforded full representation as opposed to standby counsel.
{¶ 26} In Bumphus, we recognized that "[a]fter the right to counsel has been properly waived, trial courts may appoint standby counsel to assist the pro se defendant." Bumphus, 6th Dist. Erie No. E-03-043, 2005-Ohio-536, at ¶ 14, citing State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 28. We also clarified that "the defendant has no right to hybrid representation, which presents problematic ethical issues concerning effective assistance of counsel when counsel has taken a more active role in the defense." Id., citing Martin at ¶ 33. "Thus, when permitted to go beyond mere consultation, hybrid representation may constitute...
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