State v. Morrow

• Citation: 2022 Ohio 1089
• Decision Date: 31 March 2022
• Docket Number: CT2021-0053
• Parties: STATE OF OHIO Plaintiff-Appellee v. MICHAEL MORROW Defendant-Appellant
• Court: United States Court of Appeals (Ohio)

2022-Ohio-1089

STATE OF OHIO Plaintiff-Appellee v. MICHAEL MORROW Defendant-Appellant

No. CT2021-0053

Court of Appeals of Ohio, Fifth District, Muskingum

March 31, 2022

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2021-0281

For Plaintiff-Appellee RONALD . WELCH Prosecuting Attorney BY TAYLOR P. BENNINGTON Assistant Prosecutor

For Defendant-Appellant MICHAEL L. MORROW

JUDGES: Hon. W. Scott Gwin, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J.

OPINION

GWIN P.J.

{¶1} Appellant Michael Morrow ["Morrow"] appeals from the Muskingum County Court of Common Pleas September 16, 2021 Judgment Entry finding him in contempt of court and from the six-month jail sentence imposed upon him.

Facts and Procedural History

{¶2} The Muskingum County Grand Jury returned an Indictment charging Morrow with one count of Having weapons under disability in violation of R.C. 2923.13. The Indictment alleged that Morrow had been convicted in the Montgomery County Court of Common Pleas, Case No. 2013 CR 03988 of one count of Felonious Assault.

{¶3} Morrow was arraigned on July 7, 2021. Counsel for Morrow filed a Notice of Appearance, Demand for Discovery and Demand for a Bill of Particular on July 9, 2021. Discovery was provided by the state to counsel for Morrow on July 12, 2021. See, State of Ohio's Memorandum Contra Defendant's Motion for Continuance, filed February 23, 2022 at 1. [Docket Number 54]. The trial court scheduled the case for a jury trial on September 16, 2021 by Judgment Entry filed July 9, 2021. [Docket Number 12].

{¶4} On September 10, 2012, counsel for Morrow filed a motion to withdraw as counsel. [Docket Number 15]. In the motion, counsel stated that Morrow discharged him and "made clear his desire and intent to represent himself in this case moving forward." A hearing was held in open court on the motion on September 10, 2021. [Docket No .20]. After hearing from Morrow and his counsel at that time, and inquiring of Morrow as to his right to counsel, his right to represent himself, and being satisfied that Morrow understood his rights and freely and voluntarily was waiving his right to counsel and asserting his right to self-representation, the trial court granted counsel's motion to withdraw. [Docket Number 20]. The trial court appointed counsel as stand-by counsel for Morrow. Entry, filed Sept. 10, 2021. [Docket Number 18].

{¶5} The prosecuting attorney contacted Morrow by telephone and a change of plea hearing was scheduled with the court for September 15, 2021. T., Sept. 16, 2021 at 23-25.

{¶6} On September 15, 2021, the prosecuting attorney notified the court that the case was scheduled for a change of plea hearing and that Morrow wished to address the court "before he signs the documents." T. Sept. 15, 2021 at 3. Morrow then proceeded to "reserve my rights upon the Uniform Commercial Code 1-103." Id. Upon being informed by the trial judge that the Uniform Commercial Code does not have any relevance to criminal proceedings, Morrow asked for the judge's name as registered with the Secretary of State. Id. at 4. Morrow then inquired of the trial judge and the prosecuting attorney if they or anyone they knew "have a claim against me [.]" Id. at 5; 7. Morrow then asked the trial judge to direct the prosecutor for "the assessment of the charges." Id. at 5-6. When asked by the prosecutor if Morrow would like the charges against him read, Morrow responded, "No, I want you to read me the assessments." Id. at 6. Morrow further asked, "Would I be able to call the State of Ohio to the witness stand?" Id. at 7. When informed that the State of Ohio was not a person, Morrow asked if he could call the prosecutor to the stand. Id. Thereupon, the trial judge asked Morrow if he was going to plead or not, Morrow responded, "No, sir. I'm just reserving my right." Id. 7. The hearing was concluded and trial remained set for September 16, 2021.

{¶7} On September 16, 2021, a hearing was held prior to the commencement of the trial. At that time, the court addressed Morrow regarding the scheduled plea of guilty set on September 15, 2021. The court found Morrow requested the plea hearing on false pretense, continually argued irrelevant and erroneous points of law, before disclosing he had no intent to enter a plea of guilty that day. The court found Morrow was in direct contempt of court. T. Sept. 16, 2021 4-5. Morrow continued to press the trial court for a continuance claiming,

THE DEFENDANT: All right. So that that fictitious name that is on that -- that is --that capitalized name that is -- that is on that --that indictment, that is not me. It don't represent me. And English language, I do not even write like that.

* * * THE DEFENDANT: And it's not. That -- the -- the name that you have in all capitalized letters, that is not me. THE COURT: Is it spelled correctly? THE DEFENDANT: In a formal way, yeah. THE COURT: Okay.

THE DEFENDANT: But that is still not me.

T. Sept. 16, 2021 at 10-11. Morrow continued to argue with the trial judge,

THE DEFENDANT: All right. Now, you said it's criminal law. Now, I'm still -- now the question still remains, what -- what jurisdiction does this fall up under?

THE COURT: This -- your charges, the indictment? It's criminal.

THE DEFENDANT: Thank you, sir. What jurisdiction - the Constitution only states two jurisdictions; right, or wrong? Common law and Abertine (phonetic) maritime.

T. Sept. 16, 2021 at 12. The trial court found Morrow in contempt of court and sentenced him to six months incarnation. Id. at 19. The trial court continued the trial. Id.

{¶8} By Judgment Entry filed September 17, 2021, the trial court ordered Morrow to undergo a competency evaluation. [Docket Entry 24].

{¶9} By Certificate of Assignment filed September 28, 2021, the Chief Justice of the Ohio Supreme Court assigned a visiting judge to preside over Morrow's case. [Docket Number 25].

{¶10} On October 5, 2021, Morrow filed a Notice of Appeal with this Court from the trial court's finding and sentence for contempt. Morrow did not file a Motion to Stay Imposition of Sentence at that time. Subsequent to Morrow's filing his notice of appeal, the following proceedings took place in the trial court.

{¶11} On October 8, 2021, a jury trial was set in this case for January 11, 2022. [Docket Entry 27]. On October 13, 2021, Morrow, pro se, filed a motion to dismiss, motion to suppress, and a motion to challenge personal jurisdiction. Counsel for Morrow filed a demand for discovery on that same date. [Docket Number 31]. On October 20, 2021, Morrow filed a motion to remove counsel. [Docket Number 32]. By Judgment Entry filed November 2, 2021, the trial court appointed Keith Edwards counsel for the defense. [Docket Entry Number 34]. By Judgment Entry filed November 4, 2021, the trial court ordered the state to respond to Morrow's pending motions filed October 13, 2021 and his motion to remove counsel filed October 20, 2021 within ten days.

{¶12} By Judgment Entry filed December 14, 2021, the trial court denied Morrow's motion to challenge personal jurisdiction, motion to dismiss and motion to suppress.

{¶13} By judgment entry filed December 16, 2021, the trial court denied Morrow's motion to remove counsel and appointed the same counsel to represent Morrow. [Docket Entry Number 40].

{¶14} By Judgment Entry filed December 20, 2021, Morrow was found to be competent to stand trial. A Judgment Entry filed January 25, 2022 continued the trial date to February 24, 2022. [Docket Entry Number 44].

{¶15} Morrow filed a motion to stay the contempt sentence with the trial court on February 22, 2022. [Docket Number 48]. The state opposed the motion. [Docket Number 50]. By Judgment Entry filed February 23, 2022, the trial court overruled Morrow's motion to stay the imposition of the trial court's six-month sentence upon the contempt charge.

{¶16} A jury trial commenced on February 24, 2022. The jury found Morrow guilty of Having a weapon while under a disability as charged in the indictment. [Docket Number 57]. The trial judge deferred sentencing. [Docket Number 60].

Assignments of Error

{¶17} Morrow raises two Assignments of Error, pro se:

"I. FAILURE TO GRANT ADEQUATE TIME TO THE APPELLANT CONSTITUTES A VIOLATION OF THE RIGHT TO FAIR TRIAL.

"II. THE JUDGE WAS BIASED TO THE CASE."

Pro se litigants

{¶18} We understand that Morrow has filed this appeal pro se. Nevertheless, "like members of the bar, pro se litigants are required to comply with rules of practice and procedure." Hardy v. Belmont Correctional Inst, 10th Dist. No. 06AP-116, 2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. No. 2007-T-0022, 2008-Ohio-2128, ¶11. We also understand that "an appellate court will ordinarily indulge a pro se litigant where there is some semblance of compliance with the appellate rules." State v. Richard, 8th Dist. No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).

{¶19} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150 748 N.E.2d 528(2001), the Supreme Court noted, "a reviewing court cannot add matter to the record before it that was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978)." It is also a longstanding rule "that the record cannot be enlarged by factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227(1963). New material and factual assertions contained in any brief in this court may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶7, quot...