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Date: 06-17-2021
Case Style:
STATE OF OHIO v. DENNIS BRIGGS
Case Number: 18AP0008, 18AP0023
Judge: Betty Sue Sutton
Court: IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Plaintiff's Attorney: DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting
Attorney
Defendant's Attorney:
Description:
Akron, Ohio - Criminal defense attorney represented Dennis Briggs with af four counts of criminal trespass charges.
Following two bench trials, set approximately one month apart, the Wayne County
Municipal Court found Mr. Briggs guilty of four counts of criminal trespass in violation of R.C.
2911.21(A)(3). Mr. Briggs, a homeless individual, was pro se, or without counsel, at both trials. 2
As such, Mr. Briggs faced a number of challenges involving discovery, continuances, and
witnesses. The trial court sentenced Mr. Briggs to 30 days in jail. Further, the trial court stayed
Mr. Briggs’ jail sentence during his first appeal to this Court.
The First Appeal
{¶3} In State v. Briggs, 9th Dist. Wayne Nos. 18AP0008, 18AP0023, 2019-Ohio-5290,
¶ 23 (“Briggs I”), Mr. Briggs, through counsel, raised only two assignments of error: (1) Mr.
Briggs’ convictions were based upon insufficient evidence and against the manifest weight of the
evidence; and (2) the trial court improperly allowed hearsay testimony. This Court overruled both
assignments of error and affirmed Mr. Briggs’ convictions and sentence.
Application to Reopen Appeal
{¶4} Through newly appointed counsel, Mr. Briggs filed an Application to Reopen his
direct appeal. In his application, Mr. Briggs contended that his former counsel was ineffective by:
(1) failing to order all pre-trial transcripts; and (2) failing to raise an assignment of error regarding
whether Mr. Briggs knowingly, intelligently, and voluntarily waived his right to counsel prior to
trial. In finding a genuine issue as to whether Mr. Briggs was deprived effective assistance of
counsel on appeal, this Court granted the Application to Reopen. Further, Mr. Briggs filed
motions, with this Court and the trial court, to extend the suspension of the execution of his
sentence on a personal recognizance bond. Subsequent to the trial court’s denial of Mr. Briggs’
motion, we granted the motion on the bond and conditions previously ordered by the trial court.
This matter proceeds as if on initial appeal.
3
The Present Appeal
{¶5} Mr. Briggs raises a single assignment of error for our consideration regarding
whether he validly waived his constitutional right to counsel prior to the commencement of the
trials for criminal trespass. We now discuss this assignment of error.
II.
ASSIGNMENT OF ERROR
DENNIS BRIGGS WAS DEPRIVED OF HIS RIGHT TO COUNSEL
UNDER THE SIXTH AND FOURTEENTH AMENDMENTS OF THE
UNITED STATES CONSTITUTION AND CRIM.R. 44(B) WHEN THE
TRIAL COURT SENTENCED HIM TO CONFINEMENT WITHOUT
HAVING INQUIRED INTO WHETHER HE KNOWINGLY,
INTELLIGENTLY, AND VOLUNTARILY WAIVED HIS RIGHT TO
COUNSEL.
{¶6} In his sole assignment of error, Mr. Briggs argues that, although the trial court
informed him of his right to counsel and the potential penalties for criminal trespass, the trial court
failed to advise him about: (1) the requirement to follow the Rules of Evidence; (2) possible
defenses to the charges; or (3) any applicable mitigating circumstances. As such, Mr. Briggs
asserts the trial court failed to ensure he knowingly, intelligently, and voluntarily waived his right
to counsel. Further, Mr. Briggs argues that the present appeal is factually similar to State v. Dowey,
9th Dist. Summit No. 25963, 2012-Ohio-4915, wherein this Court affirmed the defendant’s
convictions and modified the judgments to vacate his jail sentence. Mr. Briggs requests this Court
issue the Dowey remedy in this matter.
{¶7} Plaintiff-Appellee, the State of Ohio, acknowledges that Mr. Briggs was “never
advised of the possible defenses to the charges or of any possible mitigation.” However,
notwithstanding these deficiencies, the State urges this Court to find the trial court substantially
complied with its obligation to ensure Mr. Briggs knowingly, voluntarily, and intelligently waived 4
his right to counsel. In the alternative, the State submits that if this Court does not find substantial
compliance or a valid waiver of Mr. Briggs’ right to counsel, this Court should affirm Mr. Briggs’
convictions and vacate his jail sentence.
Waiver of Right to Counsel
{¶8} “The Sixth Amendment guarantees a defendant both the right to counsel and ‘the
right to elect self-representation instead.’” State v. Yeager, 9th Dist. Summit Nos. 28604, 28617,
2018-Ohio-574, ¶ 6, quoting State v. Tucker, 9th Dist. Lorain No. 13CA010339, 2016-Ohio-1353,
¶ 11. However, “[a] defendant who wishes to represent himself must knowingly, voluntarily, and
intelligently waive his right to counsel.” Yeager at ¶ 6, citing State v. Gibson, 45 Ohio St.2d 366
(1976), paragraph one of the syllabus. As indicated in Crim.R. 44(B):
Where a defendant charged with a petty offense is unable to obtain counsel, the
court may assign counsel to represent the defendant. When a defendant charged
with a petty offense is unable to obtain counsel, no sentence of confinement may be
imposed upon the defendant, unless after being fully advised by the court, the
defendant knowingly, intelligently, and voluntarily waives assignment of counsel.
(Emphasis added.)
{¶9} Indeed, “[t]he assistance of counsel is often a requisite to the very existence of a
fair trial.” Argersinger v. Hamlin, 407 U.S. 25, 31 (1972). As such, “[c]ourts are to indulge every
reasonable presumption against the waiver of a fundamental constitutional right including the right
to be represented by counsel. ”State v. Trikilis, 9th Dist. Medina Nos. 04CA0096-M, 04CA0097-
M, 2005-Ohio-4266, ¶ 12. Thus, because waiver of counsel may be impactful upon a person’s
liberties, “the trial court must make sufficient inquiry to determine whether [the] defendant fully
understands and intelligently relinquishes [his] right.” Trikilis at ¶ 12, quoting State v. Gibson, 45
Ohio St. 2d 366 (1976) at paragraph two of the syllabus.
{¶10} This Court, in Trikilis at ¶ 13, explained as follows: 5
In determining the sufficiency of the trial court’s inquiry in the context of a
defendant’s waiver of counsel, this Court reviews the totality of the circumstances.
In verifying that a waiver of counsel is made knowingly, voluntarily, and
intelligently, a trial court should determine whether the defendant was advised of
the dangers and disadvantages of self [-] representation. While no one factor is
dispositive, [this Court] should consider whether the defendant was advised of the
nature of the charges and the range of allowable punishments, and, in addition,
[this Court] may consider whether the trial court advised the defendant of the
possible defenses to the charges and applicable mitigating circumstances. We
reaffirm our holding, however, that the trial court’s discussion of possible defenses
and mitigating circumstances need not be fact specific. In order to avoid placing
the trial court in the role of an adversary, a broader discussion of defenses and
mitigating circumstances as applicable to the pending charges is sufficient. A court
may also consider various other factors, including the defendant’s age, education,
and legal experience.
(Emphasis added.) (Internal citations omitted.) Therefore, in determining whether the trial court
made sufficient inquiry into whether Mr. Briggs knowingly, voluntarily, and intelligently
relinquished his right to counsel, this Court must look to the record and review the totality of
circumstances.
The Record as to Waiver
{¶11} In the present matter, the record reflects that, at his arraignment, a magistrate of the
court assigned Mr. Briggs a public defender. The trial court then granted the public defender’s
motion to withdraw as counsel because Mr. Briggs would not sign the fee agreement. Prior to
consolidation of the four charges of criminal trespass, two pre-trial hearings were held before two
different trial court judges.
{¶12} At the first pre-trial hearing, on January 23, 2018, the trial court made no inquiry
whatsoever into whether Mr. Briggs wished to waive his right to counsel or understood the
ramifications of doing so. Instead, the judge admonished Mr. Briggs about, what he described as,
a failure to cooperate with the public defender’s office by not providing a financial affidavit. The
trial court also told Mr. Briggs he could hire private counsel or represent himself. Mr. Briggs 6
attempted to explain what happened with the public defender’s office, but the trial court cut the
conversation short. In so doing, the trial court stated:
Okay. This matter is set for pre-trial conference today. You are currently
unrepresented because the [c]ourt has permitted Mr. Rudy to withdraw as counsel
of record. Because you are unrepresented, I need to have your approval to hold the
pre-trial conference. The purpose for that is because you don’t have the benefit of
an attorney and I want to make sure that you want to hold the pre-trial conference.
Do you want to hold the pre-trial conference?
Mr. Briggs responded, “Yes, Your Honor. We are here.” The trial court then advised Mr. Briggs
of the trial on January 29, 2018, and asked if he would be prepared to proceed. Mr. Briggs
responded, “Yes. Your Honor.” The pre-trial hearing ended shortly thereafter.
{¶13} At the second pre-trial hearing on January 25, 2018, before a different judge, the
prosecutor advised the trial court that Mr. Briggs wanted to represent himself. The trial court asked
Mr. Briggs if he had an attorney or desired to hire an attorney for assistance. In response, Mr.
Briggs explained:
I don’t, Your Honor. The [m]agistrate recommended the Public Defender’s Office
and I went down there and they asked me if I was homeless and I said yes. They
asked me if I had any income and I said no and they said well then you are eligible.
But see when I read the paper they wanted me to sign a paper. The paper said that
either, Your Honor, or the county could claim that I had to pay anyway regardless
of that and so I addressed that to them and they said that they weren’t willing to put
anything in writing that said that I wouldn’t have to pay. And so because of the
possibility of, Your Honor, [] or the county, because legal fees are really expensive.
The trial court continued questioning Mr. Briggs about whether he was employed or had any assets
to pay for an attorney. Mr. Briggs further explained:
[T]he problem is that the Public Defender’s Office and I can’t agree on, you know,
when you sign something you are bound by it and so if, Your Honor, or the other,
Your Honor, or the county would claim that I have to pay those fees, then I would
have to pay them. I wouldn’t have any dispute. So, I think it is fair for me to just
proceed pro se so then there is no dispute over possible legal fees. To be honest
with you, Your Honor, I thank you for taking the time to talk to me. I don’t
understand why I’m here. The facts of this case are clear. I was permitted to be [at
Family Pools and Spas.] 7
After granting continuances of the scheduled trials, the judge then stated:
And in the meantime, Mr. Briggs, I would strongly advise you to consult with an
attorney to assist you in this matter. And if you are asking for the Court for an
appointment or you at least want to consider having any attorney assist you with
this, the Court would appoint one to help you with this if that’s something you are
asking for. I don’t know if you want to handle this on your own or if you would
like to speak with somebody at least to go over these cases. You have four of them.
I can’t tell you what to do with your case. You’re at liberty to represent yourself
pro se if you so choose, but these cases, you have four cases. They are all
misdemeanors of the fourth degree. And as you saw the individual that was
sentenced before you, that was a misdemeanor of the fourth degree, there is the
possibility of up to thirty days in the Wayne County Jail if you would be convicted
of any one of these offenses so.
* * *
So, and I’m not saying that would be the sentence or that you would even be
convicted but I’m just saying that there are potential consequences of this and this
might be something that might be good to have an attorney assist you with. Do you
understand?
Mr. Briggs responded, “Okay, Your Honor.” The record also indicates that, prior to the
commencement of either trial, no additional dialogue was exchanged regarding the waiver of Mr.
Briggs’ right to counsel.
Application of Law to the Record
{¶14} Based upon relevant portions of the record, as excerpted above, the trial court did
not fully warn Mr. Briggs of the dangers and disadvantages of self-representation or sufficiently
verify Mr. Briggs’ waiver of counsel was made knowingly, voluntarily, and intelligently. In
Dowey, this Court vacated a defendant’s jail sentence where the record indicated that “the
municipal court [never] told Mr. Dowey about the dangers and disadvantages of selfrepresentation[,] did not tell Mr. Dowey about his need to follow the rules of evidence and 8
procedure, about possible defenses to the charges, or about any applicable mitigating
circumstances.” (Internal quotations and citations omitted.) Dowey at ¶ 5.
{¶15} Here, like Dowey, the trial court advised Mr. Briggs that, if convicted, criminal
trespass is a fourth-degree felony punishable by 30 days in jail, but the record is completely void
of any discussion, even cursory in nature, regarding following the rules of evidence and procedure,
possible defenses to the charges and applicable mitigating circumstances. When Mr. Briggs
attempted to disclose he had permission to be at Family Pools and Spas, the trial court stated, “I
don’t want you to get into your defenses and all of those things that you will be entitled to argue
or have somebody argue on your behalf.” At that time, the trial court could have broadly informed
Mr. Briggs about defenses or possible mitigating circumstances to criminal trespass without taking
an adversarial role against the State. Moreover, there is nothing in the record to indicate the trial
court considered Mr. Briggs’ age, education, or legal experience in order to gauge whether Mr.
Briggs’ knowingly, voluntarily and intelligently waived his right to counsel. Mr. Briggs was also
never advised he would be required to follow the Rules of Criminal Procedure and Evidence.
{¶16} In addition, the record shows Mr. Briggs, a homeless individual, repeatedly
expressed his concern to the trial court that he would not have the ability to pay for legal fees
should he accept the appointment of counsel. Specifically, Mr. Briggs told the trial court, “legal
fees are really expensive,” and it is “fair for me to just proceed pro se so then there is no dispute
over possible legal fees.” After hearing Mr. Briggs’ concerns, the trial court simply ended the
discussion and allowed him to proceed pro se without ensuring the waiver was voluntary.
{¶17} This Court, based upon the totality of the circumstances, simply cannot say Mr.
Briggs knowingly, voluntarily, and intelligently waived his Sixth Amendment right to counsel.
The trial court clearly failed to warn Mr. Briggs about the dangers and disadvantages of self-9
representation prior to allowing Mr. Briggs to defend himself against four counts of criminal
trespass. Therefore, in line with our precedent in Dowey, supra, we instruct the trial court to
immediately vacate Mr. Briggs’ 30-day jail sentence and affirm the judgments of the Wayne
County Municipal Court as so modified. Further, because this Court has determined that the trial
court erred to the prejudice of Mr. Briggs, as explained above, and because former appellate
counsel failed to raise this issue in the prior appeal, this Court vacates its prior judgment and enters
this judgment pursuant to App.R. 26(B)(9).
Outcome: For the foregoing reasons, Mr. Briggs’ sole assignment of error is sustained. The
judgments of the Wayne County Municipal Court are affirmed as modified. We remand this matter with specific instructions to the trial court to immediately vacate Mr. Briggs’ 30-day jail sentence.
Plaintiff's Experts:
Defendant's Experts:
Comments: