IK! TFFe '^SOprzernE C.oua.-r of oi-1^

ORIGINAL- I [E^-FrffE-E^- P 6L-.

4,vbf2EYoK:pee

lpo, /3o. 7Sb^

7

mv-

1-I16/ S o v - o h #1gh

---

'AF76f Wff/Trv?O!2^, T a66^ _

_^ 1 SoufG

c'iwee,Io-Z6,F

AL-5^am ARh

- ^/ 3̂Cf/1, ohio 41^67

Op- lC^ ^^ J/^LAG7^N iiUS??MJZ,6y-,?

^ _ , •- - ..^.! -. .^ ^,^.

--

- ŝ Z32 9^ ^S P o, /3ox_7S ^--------------------------.______.-_.___..__.---______...__--------

___...T____ _ '-:-•-!h/,^.^S^4ELr^^ c^^fi c^!/^ 4'41_ _ _ --- ° _ _ - - ----^-'^-i^.^u ^1 L %^-^r'̂ ^ iC^.: h^^^/J'^ti9clS

-T--..-------^^^ - - - - -^

----------------_-----

^̂Y1`d 6_

co)

^^3 /t/A G^A2E;- Tu^6^ ^e

/lraI) a o 3os- ------^__._

^ ^tir pP 2 ^,oratr o

v,

IL_I 1, rS _140+ or^ b l^ C'oc n C 1me-5 I-Ivr re e^ r s^ ! y^ S,^

uet ^e^Q 2^^x^enls m^^^ ^^Svn iss ,

ox t88

--___-^ _-------fi ---2e le-^^'

----

an_^1^ nue a-rK±_^Li2F5 •

'-^

i lure lc

•..;-;l^- ^^ ^ c2r^^ ^o(k^{ ^ k^^ .,^ y ^ o'F ^rlr^-4 c^l e Fer^^ a nel a_ cc ^xr ^

! I S"^_!'1^+_+^-1^1.s!Smi55 ^c^aim oyl-^b^^-SIS C^^-k1^F^"

LLi KKWLn ^ Iion F an cleFense,

tka-^.,-ccDnlains Ag ^c^u^1_ s^S v^iil rc^

ts^^uoporo+ecl k,y l 1^ I deFen^^^ ------------

-^ nrnyy^e^ ^ 1 x^ F^ n^1_^S4^^s a l leor^cl i n ^ I "A

-►o h^ve b^en mr1+^l bv 4h^oopc^^c^st ns -[+'-

9T

iF e^ ar2. r^clg^^i^ tr, amar^la-f^ r^^x7^s^ve nT d^ng .^^ ^^n I i s i l^e a.c^elr2sse^

Fccal by --^n k- op^os(na C1^,r^1.

-A11_-L. C^) rncrhons of Gvi l ru l^e s de-.^ns^s ma^_b^ w^cl^

LarK4^^(gti^(Lc+-iowl o.re.3 sub^

l^c'F ur t Sdic+[h CN e,^"' ^n-ers-rin C^J t%nproner ye ►^^^Q

1+1SUfF^u ev,c^,iOf'oroS ^Sl I^St,eFftUen'k-'-y,.oF^ea,_^tce_c_LF

S (S^re-^r^s-F^^^ ^w^ ^^r} re(+eFc^v,'^ ---

-' ^^^-?^^cL^^)^► ►̂r^_^ ^_r^ a- ^x^_^^^ te t^t o^ t9..^, ___---------'

%nemoY(q^pm „cJ SuPPo_CT

L_uvl Q-u_te ta(Q^ 6F a {&r-F-,l uncie.r^his rUle arcl dCes m^ ^nclude a-hereiv) all cl^^evase^ an(j

ote.c4-tans -l'1)"zn avaAilable A-o hvrv, whbc-^ -4 h-s- ru k_ }oe-f-mi4-">-

^ ra^-w-hdn,^^_sl^al v,^4f rher? aFI er ass^r } b^

WcrlQn or respanswePIQ-adn I a nl Or -Fhr^ c1 ef^v^Ses or Gb)^OCIS

6r9umen±_ve

^} Ft,e_m^ncl^e vn 564-e,"scaprs.._frorn-t-his

Fo c^n_s^^l^ r R el^nr aszwgr.mqx+s oF_ erf-o(- ancl4-̂ Odc1 sc)

Co 11^i5F e r kl^_!t Lt^4^--5{^ ^ ^ _YY1ar^jr^,_^vpca_._ T he _^ e^^?9^k^n ks------

S^R.S^ -l-lze_^_r_b^^L ^uctyw^e^+ bapply_ Ma_r^^ !^ ^-e^qer^.

1 1 -1^4e Fm oo A^h L->---Cuui74sl x^ c\c>F

Pa!f-}-tC_ualav_Ce.^t^^^ J-Z3^-,e-141errUrQLacp-lr_^._r^lakQC,-

/a cccr^c^^lc^F ^1^e-/t^in^'h_,Z?/sfi-iC^ Cc^u 3 f:^^^f^^^?/S_

-J-rvck cde-f'.,l+hp- ,nna-nda.e 6F -khis-C.cv.ir±'9

he _2^Sp^^le^k ^, ^y^n2e r!_^.^ vef^ d^c ^(^veL t^^ t l--

Cl

}Qak -fhe 2^^S^ro1LQ r^ -

----

S^pr^_. }^ac^. _Ye^parrl^rt^ Cot6wecD 9')ar4in a nc-A.nzA

1()C.crfeCA- -s4&nda,rcf ^ heri } he rn2vy--64e --

o-b-N4 1pa4_ kh4 _Eg^^^ va iecp

ucf L^y rdv

I-!!a}'s t1C^}^- Su^_e_-^^t'.`b t^rrn IeSS..^.r.ror .

'

_

^`

^.^aclr Ae_----^ar;^!a^r^x^r

--------

_min^s^er1^?1S^t^^^2S^._^^.^^^d^rn^ts bas^o»_t^w,_^F^_cem^n

ra!_ns^i r,11.^ ^!4 (l3) ^J^c^la-^-ion _ manc4amtzs base.cl o^ ^-I

l e- e:cJa llIj -e+liotvtS a-S dt^'fy, Mc3rl^anAUs

_

Y

Akoo r eSS avcA _tS.S.cr^v^^sft^FlCzn_^iolo^O^y_.py^lSld^ln^ (^Sed -

nn^rcGarnuS^U 4e

I vn ase^P ch I, b er F^^_ n Fe r^-

(naYC! rn e-c.l n c QF r T 2

r e e.F unclef rna rnas, V-ra r^ la k^rs Yrav^ wa^ V ec^

IM ob i n a v\ vv,a ^^_y^11 a>1 e^as ec^ Ee^

e a nct re(vP F' iyL^.Lsk be^jtarri-eb because all_ c^l^ i wts are

loresP^^ pfoVe-Y_1 ^n onft9, n2 i ac.rF"tG1^ ^ nC^ s ^Lnc^ s^- 2e^por^e>1^S V^c^ f io^o c^Isrn ^s s!_.^e cLean t^^_

kne^!-^mRerki-Go1^ct^ec^ a1f rales a^et^]Ln_uQ. 3l ^1^sca^

^,^ --

- ^?yt?Wtn^_^^ck- };^ c> r^_a_1ov7Er Cocack`_^_dsscr^^^^1v1^__

^^ rrn.f^^rcQ cnrn^liar^cs ^l^r^_ ^^s ^lec^s^cr1,S i_I^^ RQl2^c--

c^br^LtsL^(^]S.^-v.^^rS^^^^!1^25^-^^h?.__ota,1

lQw__er--I^F^aFe_couzrl oF

T!r^d ^l,Q Qe l^ ^;s ab

----------- ^^1IS ^E'-}'S ^r^ ^erF^}._1r1 ^^^^vine IS nn ^eSS-

------^5.-^.^ln^Lnl^d^W1^

---

l^ C^ it S+_ld3---- ^c\ 3g5, zpciyOhr6 5^(7/ -J^a mar,c^^m^ ts_a+^^i-Rf^^l ^L4n. -

_1k^^-Et1^l^_^cki^r, ^«S

w>?.r^l^_m^^_-nor prs^. ^+ b..4-Q!n str_y^

^ 6eorre^^rvlere Prrt^^^^law.arr92eladers-^^peals

ovef ^-----

--c^ rre

^ Lb

s-l-.aAn_ rrx rPt neic^er y F3rau>er C 1qSl ^_1^5S^lss^s±z^?

-rt^'-^s

.__------ i.^i tA'f^44.^.5.J^-^-so2.ye.r -^-0_tQL^:+^i.e. ^.^la,ilaL^^ IrFy r9r ac^^iy r,

1^rc,^a^sas_C.^r_^h^1^^^1.C^n.^F a P.Q.r._o._^ar ^{e^ ls 1^per1^ SslVOKsc^ ^4 -

\:^;N,iahcQ Q^_wn^sd^r^±^ 1c^ah_e lc^^er cczuri ^ccAe.r^n^ cov,_^.Ir^^,ce_

Lulk^_^_^nc^}^ __S4a1e excel^ h^^ sl sc^ 3r^^_ 4_5-u.p^,-_._-------^. P.X 54ak^°rQ,1 /-^{`^s_.

s 7e^12r

^_Ce

^^e^.^^oU ^eC czurf d e(^e sJhe manclal^,.

¢nCvc'c^^^

_YYIa-a-Lr^

°.Y'r)ar

1),)^S t c1 acle ^s^^.1 adllis^ ^^ a t_^he _stsKs _4F.__S^I_(^r^ p^^n ^^ ^r!

rs^^!se.^^c,q^^u-1-^c^a^. Th^r^_^s_ n^?_5^?bsh^n+,a1_CQmplia^c^__s^.F_uza^u.^r---__

ptco%^'nsel, -

,' Acccg6 tR-re^Ffic"iou sc^rn--1

--- i_Cv^^! a+^ce_^t}a,-C rtm._i? L4-1 nnaK^n.a^^^^c^^^,,^^ ^.I

- c1Q^evun_^ne_ulhe^ket_^^^^^da^k_Fill-L+s^n^_2r1ko^^cl_t%rle^l^3^

1-

vsts_lh cc>r^c^_s^^^^f_AnCl--c^^czs^cv^ oP A-eC ,^Lv

^-To_^57^^ C^ sl?c^^atU_er_ m^sk b2 , nnade .^ rl h_ar^ rebe-_ _ _-

------- ^ haiccrstoF e_4±arc^^S s4ak^e.-^r^ c^^^v^ces ran^e a^^tsh ^nt+TSSi^oIQ

--- or. mcl-tKs

^ im r F e_ cnur 1 c^.e cas^r^ wo^ {e^^;_3^1 ^a^-4ccs oF s4^+e

J l^!l^r tn_ l^J^^1^^^^r^c^-^he_s1`^e^c?^^re^nc3s ^hsa __M^.L^r!n

Watvee\ 1\!sCv(^Ao Cczc^_ysl b,^

----__

4h^s_^ro se_ vncrl ^on 1e^r14^y-ln (-L^^f b--a

I_l!J-a\ ^L-e !- OF. M^ r} t l^' S- Y l g_^ l^_^_C Dl^-L1sS-Q 1-r_-^'_t^J^l ^L3-^ l ^ 2___

__ i! m^rks^ ^^ 1aa^o^. ►̂^r^rQ`^^er^o^os2_ F^^e_r^^r^ se n^±t^^_o^se l F_

^arr^1{y!`^11ow_-^.e_^rn,r-4

f rhe-wN7ifs5Ji^-1_

a rv^S S^u^_rn^?^rs^^Lo Sk^^C2f , uQfclkr,se^^

Yhe _Cs^CS7 ^a_ ^OU S-no l_ a^^t^^^ha 4_ `^^a^er ^^s ^c,^1 ^ c^^r^ d i3

-- lha_ co^r^ r^^Qr_ccLm^t,e^L^r4h Cr, r^. R. ^i _ Cp^ y_ Yultg.r_^+n

h t_^ Cc2sar rY.-a rv--la4---,- ,^e ^pcs^en^ lhas 4c^ns^czrm^ z v cs1^4^

+ 1,a^s_Fk.^ ^ev^-ZCOZ _11^r^ng ^n ko ^ .nc

\if H YZl ^^^ eaJk-c-.L-=nw. 1o FC-Cuns^ e Ok, ^1 kn rr5 tnl tlai ^?_eCOuA 47ai.lec^ 4oac^legLu-̀^1^ warr^ `^f_ord^^De s a^

--

i,_coWnS^l s3n^.crz.^xr4-R---`T cLZes1 sl^n^l^d^

aF_ -ir^t n^QC_^l_2^e N+^^5-_^ ^Se^_ __Ca1 ^l

^tYJ'rC^

;T_S^^l^^l^^v1s^^-a^2^ f^e ^e^l^n^en{^--^?̂3c^c^^^Dir^..ft_f^2^^

^C1L^11^-Q.3.`Q7_Y'IL1t22m_^^-^^e__^'^_'__^_^?-^J^Z^P^S ^!/ ^'Q.^^ds.1/^^^^/2/^

r^^------

Yl.^^i(?_fecorol ----- -_ -- -- ----..

i8^f?e_,QeS^!^cL^n°fs_-C/S^d _f^z2^"/_^,5fv/L/%^emPn f 7U_a

?6. na-

-r ---- - - - --- -

c%rolo^QS^

o1' c^cJns^/f -^d, i s._Cc^r1r^^Q11lQws->Lh.y _-^^^

^^_^frL^-f"^i.r^

! ^ /I^,.W r,^ af /'c eSannde%^s ^ ^ f ^-Q 3 yrc^p^i Ch5 : _^^g S^^̂DcazQYRa'^^Q--fria^eourfd 15 cuSSion 0/4-

_'^hC/_Mrf^i2^C[^^^Y^C2S r^^r^r^^e--^^pe^t3ir. ^ ^7^.^. ^c

--

--

«TY^yf._.^_l^/^L^_C^^nrln$^ //S ^ 3̂7Q ^^ ^ ^l^^L^i- O -̂--i^. ^

Y^LS- c ^^n o%Q 3l^_ c^?"Q C^/,qe - -oa^ iIl

---:!^[^- S{^.^o ^r3̂ ^r'^L/^ ^^pr^ secr^nn/..^a,^nol^h^ dG ^ac^ J^v3---

l^e^

-__ ,_r - ---- --- -- -----'

- TheQ^s4_^upreNZe _C c^sl^^ _^12^n^^ ^t^t-.^- 3 he ^^w c^y 1 h^. S^S3 ,^

Lne °sviclQ 1 n Oweulsz^f tna c- asg -_^

ILc)^ar^ y^r,^an ll OhGC^ 5-F ^r 11S_ r _ _'t^^ ^ W nF caS2

I! a1 h^r c^ti5e ^ 5^.b`-^°-+r^1-a\ ^a_h^_hds de^n V1c21^1^_._Th^`^^ 1 e---^_

--- C^n^^--^E^CaLwa^n^!^f ^^Ut5-2d_ of ^ns2rs__^^̂ IF_r^^NPSer^

i 4 Es^ cP R^ ^e ^cLl Ic3n OF 2 csxar{-o^^-rr^4.^?LC^S ^^b^^La^, '^d=^_-

- 1n ^2"^ r ^ ^e^^^oEcd:iscr^+tc n^!?Z^ 2fs kc^ n^n ^ h^s^bF _^

^c1J^Y^p^r^c^.m^^f^_a^tsr^^sl9Esis^aricl^4_a-Rp^rsfl ra ^ I t,e e

.IS rL

WaS^zerc^s^^ O,na_9tos^.rr^-^?r_!^_ 4he e^^^^ cl^l^^-- __

av,d, clear^_rnah^_t,U^_V^Za^r^^le_-tv^.lt^^h}c^f

cnrv)t?,14Ll_LA(o?re^avC

-Srn tkli.J Y, w 1 lK^^ b Oh^S^^ 1 6°

n ILl i n rn+ ^ l r^l^

_q2) $SZGh(oRpf^^^_ .T1Z? R^s^nd^+^k^_h^-rnca^oc^^ o

ad.llru-I -1

^A^c^^ ^mEtly ^TL_^u^}6 i4/(^yenc^QS c^F^Qfii^c../ ^"Q

--------- ^^^ ,ld 3̂1^_.^.FsLr_^^.LS_^^1tr^^^.z^!'1L^^^3^pirr^eC^fOh

^^ Cou^%fg^de^isipy^s ^^r^^Pr ^/a ^hetr/^t.^3' !^e/c^r,^

/:^ 4F (:?/ de zeh^s^^y^iv^^/a/l ^i 3̂

/ ¢ ^?1^.[LSe manc^amclS C^^^'3rdhi.6^^lnh ane ^or^2ry

5^l61^PsLCH7//cf

=`7i^^e 2^s^^dev^c2 n 2h ^ r/ vrQ'^^{^^iic/a^^^f^z^S c^

!I/_-%^#LSS ^z{Y/- ^C7P3J1eS1'L,^r.^///L-^^^li/ _

___--

^_._

^^-,^f_^^'^°^. ^h.^I,-^^^!^^r^_S^u^/^e^S^^3Q^t^f^0^

-., - /^^Gh d^io y^^s^ ^^Gm ^2^31 ^ ^ _ zDO^- - - -

_ -- --- -- - -----------^^^ ^^- -------- ----- - -- ------

IN THE SUPREME COURT OF OHIO

STATE ex rel. ANDRE YEAGERP.O. Box 788Mansfield, Ohio 44901

Relator,

vs.

PRESIDING JUDGE, LYNN SLABYNINTH DISTRICT COURT OF APPEALS161 SOUTH HIGH STREETAKRON, OHIO 44308

Respondent,

JUDGE, BETH WHITMORENINTH DISTRICT COURT OF APPEALS161 SOUTH HIGH STREETAKRON, OHIO 44308

Respondent,

JUDGE, DONNA CARRNINTH DISTRICT COURT OF APPEALS161 SOUTH HIGH STREETAKRON, OHIO 44308

Respondent.

CRsE .ijo, o6'Zl3o

CUe.ICaiPfR-L t3G'YICUn/M9wJo9mUS- pR0^119e7-Z0'U

AFFIDAVIT OF ANDRE YEAGER 1,vSU/cvR-'r -ro prsm'ss e,-spov46A-yrS^ayionJ7o i^isn^is5

Affiant, Andre Yeager, being first duly cautioned and sworn, here

by states and deposes that:

STATE OF OHIO )) SS: affidavit of ANDRE YEAGER

COUNTY OF RItHLAND )

1. I am the Defendant Relator, that is the victim of an improper

waiver of counsel.

2. The attached complaint in this matter was prepared by Yeager, pro se.

3. I have personal knowledge that the factual allegations contained in the

complaint as recitedtherein are true.

4. I possess a good faith belief that based upon the facts as recited in

the complaint that I am legallyentitled to the issuance of Writ's of

Mandamus and Prohibition as described.

5. Affiant has first hand knowledge of the facts of the matters contained

herein and is competent to trstify as to such matters.

6. ANDRE YEAGER, did file a motion for self-representation.

7. On June 14, 2002, Judge James R. Williams did not warn Yeager of the

dangers of self-representation nor defenses available nor any of the factors

of Von Moltke, he made no inquiry to ascertain if waiver of counsel was

intelligent, knowingly or voluntary.

8. I would not elected to proceed without counsel had I knew all the dangers

of proceeding, pro se, on June 14, 2002.

9. Affiant told counsel, Nathan Ray, he was fired and do not file anything

to Ohio Supreme Court on my behalf because I wanted all errors preserved for

Federal review, which counsel was intentionally selling me out to the Ninth

District.

10. Counsel Ray filed anyway against clients wishes clearly knowing the

attorney client relationship was terminated before he filed in the Ohio

Supreme Court 2005.

11. Affiant possess a good-faith belief that said decision of Respondent are

(1) in contravention of the syllablus of this Court;

12. In contravention of the mandate of this Court, all of which would support

a Writ of Mandamus herein to confine Respondent, to carrying out the mandate

of this Court.

13. In contravention of Criminal Rule 44(A) and the trial court had no subject

matter jurisdiction to proceed to a trial because it never properly or

procedurally acquired jurisdiction under the Sixth Amendment for trial court

lacked a valid waiver of counsel since June 14, 2002.

14. Affiant believes the Ninth District Court does what it desires despite

starre decis and mandates of any Superior Court.

15. Affiant filed 26(B) raises various issues that appellant counsel failed

to raise dead bang winners in order that the court correct this illegal

sentence, which was denied.

16. Affiant believes dealing with Sumit County, Ninth District Court of

Appeals the law is actually ignored because these courts are aware no court

will review there improper decisions.

17. Affiant believes the Ninth District Court of Appeals stating this Court

merely quotes the dicta from Von Molkte and is not there holding is a clear

disrespect to this Court.

18. The Ninth District Court is wrong legally, factually by hold "This Court,

likewise, will not adopt a rule which requires a trial in order, to fully

acquaint himself with the facts of a case prior to trial in order to under

take pseudo-legal representation of a defendant by specifically advising him

ofpossible viable defenses or mitigating circumstances existing in his case,

Ragle. This is insane, unconstitution and obstruction of justice, a court must

inquire long as necessary to make sure'a defendant eyes are open to the

ramifications of this enormous right being waived, defendants are not aware of2

there defenses or any factors that will aid in winning a just result.

19. Affiant understands the state conceded June 14, 2002, transcript shows

there is no valid constitutional waiver of counsel on the record but the Court

wants to dwell upon the pobiea for self-representation that was filed before

June 14, 2002, hearing and legally inadequate to prove an intelligent, knowingly

and voluntary waiver of counsel. This structural violation that cannot be

presumed by any motion it has to be on the June 14, 2002, transcript not any

other transcript because then Yeager, was without counsel that guaranteed by the

Constitution Gideon v. Wainwright, Powell v. Alabama, until that next date in

Court then without counsel until next date very on going violation.

20. Affiant believes the mentality reflected in the opinion of 2005 ignores

the Ohio Suprem Court precedent regarding the standard of waiver of counsel

and the standard in Ohio is not the "Totality-of-the-circumstances" as the

court wishes it to be the standard and duty of the Court's is whwther the trial

court explained to d3fendnat dangers of self-representation, nature of charges,

allowable penalties, defendses available and all factors as a whole in Faretta

v. California or Von Moltke or State v. Martin, none is the totality of

circumstances standard. There is no mention of background, age, or education

those factors are not in the law because its not important as the inquiry thats

required by the court this right is too important to waive by proxy or what a

court wants the law to be.

21. The Ninth District Court of Appeals clearly deviated from this Court

precedent by stating Martin, supra, does not require the trial court to consider

all factors of Von Moltke, the court is wrong and this Court must enforce your

mandate.

22. Affiant wants this Court to understand when Relator, say reverse to new

trial what I am saying is once Martin, is correctly applied and all factors

of Von Moltke and June 14, 2002, hearing transcript viewed then the end result3

will be new trial. The court cannot view the motion as waiver of counsel if

Martin, supra, is followed because it was filed before June 14, 2002, hearing.

On June 14, 2002, hearing is where the violation was done and never

corrected.

23. Affiant believes stare decisi prevents the court of Appeals from declining

to follow this court law. "As the United States Supreme Court has observed,

faced with controlling authority by a Superior Court and another line of

decisions, a Court of Appeals has only one course to follow the authority of

the court to which it is inferior leaving to [the Higher Court] the prerogative

of overruling its own decisions" (citation omitted).

24. Affiant believes the court decision standard deviates from established

precedent.

25. Affiant believes the Writ must be complete in its nature, beneficial and

speedy, to correct this miscarriage of justice. Relator, is actually innocent

of all crimes and a constitutional violation has resulted in an innocent

citizen being imprisoned (Schlup v. Delo).

26. Affiant will go back to third trial and prove his innocence on all

charges with counsel.

27. Affiant believes the Court of Appeals exceeded this courts mandate and

for any Inferior Court to determine that a syllabus of Ohio Supreme Court

opinion is obiter dictum is improper and under S.Ct. R.Rep.Op. 1(B) "the

syllabus of Supreme Court opinion states the controlling point or points of

law decided in and necessarily arising from the facts of the specific case

before the court for adjudication.

4

r^3nf (^osses a goccJ r~'acEhbe%^eG fha^ncrPY,ec/y /^y[c^y

redreS< 4-Ae Pe /alur_s.in 1 er^s^s /n • •>?Er/cccFe c^-»,o/ian4? 6-)i4-h.-f-hQ- enc..-dCty-e OF_ _-

O.tC_^Vp^)cLl t5 a Lrulczble, c:(l_has be-en c%nced, noop,op^1 i s r^J^puct{e4o

^4/sCou3 l a,,el 4ticq_r^1x^^ scccln_c s- u, i/V,^preih ec PA/epryper a n^.-

-L±'^c^(^ion?l`emes/^

^t .5^,oe.^

494 Supreme Court Practice

Although the several writs to some extent serve different functions, theyoverlap considerably,s and the same general principles guide the Court indetermining whether to allow each of them. They will therefore be consideredtogether here.

(1) Forcing lower courts to comply with appeGate mandate. One function ofthe writ of mandamus is to force a lower court to comply with the mandate ofan appellate court. When the mandate or judgment in question is that of theSuPreme Court a lication for the writ must of course be made co that Court[n re Sanford Fork Fj Tool Co., 160 U.S. 247, 255 (1895); Uruted States V. UrutedStates District Court, 334 U.S. 258, 263 (1948); WiII v. Uniied Statesr 83 9U.

o t e lower court takes the form of an appealable order, the aggrieved partiesmay file the ordinary petition for certiorari. In re Sanford Fork & Tool Co.,supra; Baldmore & Ohio Railrtwd Co. v. United Stares, 279 U.S. 781, 785 (1929).If the mandate or judgment of the Supreme Court leaves a question open forthe exercise of discretion by the lower court, the decision of the latter cannotbe reversed by mandamus. ln re Sanford Fork & Tool Co., supra; In re Potts, 166U.S. 263, 266 (1897); Exparte Union Steamboat Co., 178 U.S. 317, 319 (1900).Where the appellate court leaves certain questions open for consideration bythe lower cntnr. thP larrrr rrsusr rnn6nr ifcnlf fn tt,ncr iceurc ^nd -n tu

i 90, 95- (1967); cf. United States v. Smith, 331 U.S. 469 (1947).61f the action

;Thus in Vendo Co. v. Lektro-Vend Corp., 434 U.S. 425 (1978), the Court' not proceed to execute the mandate, or disobeys and mistakes its meaning."

U.S. 228 (1893); cf. United States v. Smith, 331 U.S. 469 (1947). See 07-United States v. Haley, 3.I1 U.S. 18 20 (1962). 4_,Z^ 1

Indeed, the Court has indicated tha mandamus is the only proper remedyavailable to a party who has prevailed in the Supreme Court where the lowercourt, in the words of United States v. Fossatt, 20 How. 445, 446 (1858), "does

corrected by mandamus if it fails to do so. In re Potts, supra; Gaines v. Rugg, 148 P--- ---- • --- ^ --- -- ZZg

denied a petition for clarification of its prior judgment on the merits (433 U.S.

purpose "since the judgment was a routine order directing that the decision ofthis Court be carried into effect" and clarificarinn of rhar nrder nrest mahlv

Sec. 11.6, infra. Since it had not been, the motion was held to serve no useful

executing the judgment. But the denial was "without prejudice to the filing of amotion for leave to file a petition for mandamus pursuant to Rule 31" (apredecessor of present Rule 20), the remedy deemed appropriate by the Court.In Vendo, the motion to clarify might have been treated as a petition formandamus had it been served on the lower court judge, as the rule required. See

:623 (1977)), which claimed that the district court judge was not properly

;would not correct the improper action of the district court judge. The Courtseems to have left open the possibility that a motion to clarify may beappropriate where it can be treated as a petition for mandamus. Obviously, thebetter practice is to file a petition for mandamus, claiming that the lower court

AP sThree petitions for exactly the same relief in cases argued together were entirled "Petition for VG4itsof^-

^he ^d^l ^ln^^'^s/v^ -l-hatf de^ndant Aaver ^rved cauviso/ ^e o

y/ ^ errorcv^l/ i• Gne r(,.lesprescr,bed r:nd rp,n,0,7

^ 4 /7 ^u 3 tt

was raversed an/y hh,- fhR-PNp°sV-of ctlererrarS rz^$ 4 n^cfd n ^, fhe prmc/^hs /cuar rparpc^s^ ^F -LfaK,ny ah qcc^, cnF c^^c^

/coUrr. 4/'r54O 7f.c d.ecrez c,^-LAv- C,rCcP-^C5/-" /n r-e!

I,IYtS $7o^^^2^c/ by f^l.n_ nc^^On Q^^^SGGcfrT

07

he c{4 C

Cw^fcF 4x d.,crrglrh ^s^ as/de -//u^ new /cti , T

^e ^d ^he^^.nfra/ a^ q^' >^ hQycoc//d alo/lo^'nq -Iv a-Ff

exce(3f i^ ob di eH ce -(^ -4-hQ w,c_,.,do .-he ^f hgs ca ue l' l c ha !r es

^eI N fv o1o c Jas ah/^l ^-h-e-f ee.,('/n-r BF -f-^;d j ,:Mw^,m^►- fe.^n.^ ^;

d /- -v^° r ^-Male+ner rr^difcW^d by-1-hls eou/^ Mur 1 T6say u

kJkyle czwe. oiF 9Eti is -fo say -Ftio.^- 1-^ h4.s dare 1,-A1ch /-hsca;

/tC& 4 J)e dor>e LOnder^h^ w«gdce^ ;.f ,,,.le Aded,^v ^by^versE{ tic^^^ lf r J-dorte, ^^ s^6slr^^rEtr, //y 4fG,rmed 4l^f ^^^ cf

r/ctti d WaoV^r Cr^rL U(rOa S/ 'v^ocll FJ^ec/ '^& cp nld%,

(ec^tVed AaW FuC7^'S - ocde/'-lo v2ca{-e nor/ow

Extraordinary Writs 495

is disobeying or misinterpreting the Court's judgment or mandate. A request toclarify may be appropriate in other situations not involving disobedience whenthere is ambiguity on the face of the Court's order or opinion.

The Supreme Court can issue a writ of mandamus not only to a lowerfederal court but to a highest court of a state that has disobeyed or failed to giveeffect to a prior judgment or mandate of the Court. See Deen v. Hickman, I&U.S. 57 (1958); Bucolo v. Adkins, 424 U.S. 641 1976). But while the Court

twt e[f-nten and likely grant a petftioor mandamus w ere suc ju tctanoncompliance is clear, the Court dislikes to issue the peremptory writ irself. lnboth the Deen and Bucolo cases, for example, after explaining the respectivemandates and finding that the state court.s had in fact failed to conform, theCourt simply granted the motions for leave to file mandamus petitions but"[a]ssuming as we do that the [state court] will conform to the disposition wenow make, we do not issue the writ of mandamus." See also Connor v. Coleman,425 U.S. 675 679 (1976) (motion for leave to file granted but consideration ofpetitton or man amus continued on assumption that federal district court"will promptly conform its proceedings to give effect to these views"). See also440 U.S. 612 (1979), 441 U.S. 792 (1979).

(2) Correcdng jurisdictional error. Each of the writs of mandamus, prohibi-tion, and certiorari is used on proper occasions to correct jurisdictional error onthe part of the lower court. See Kerr v. U.S. District Court, 426 U.S. 394(1976). As stated in WiQ v. United States, 389 U.S. 90, 95 (1967̂ ):

"The peremptory writ of mandamus has traditionally been used in thefederal courts only 'to confine an inferior court zo a lawful exercise of itsprescribed jurisdiction or to compel it to exercise its authority when it is its dutyto do so.' Roche v. Evaporated Milk Assn., 319 U.S. 21, 26 (1943). While thecourts have never confined themselves to an arbitrary and technical definition of'jurisdiction,' it is clear that only exceptional circumstances amounting to ajudicial 'usurpation of power' will )ustify the invocation of this extraordinaryremedy. De Beers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 217 (1945)..*"

This does not mean that the extraorditiary writs serve as substitutes for theordinary appellate procedures whenever it is claimed that the lower court hasacted beyond its jurisdiction. Bankers Life Co. v. Holland, 346 U.S. 379, 382-83(1953); Heckler v. Ringer, 466 U.S. 602, 616 (1984). The writs are to be usedonly when, for some special reason, remedy by appeal does not provide anadequate remedy:7 Orders which are not appealable by reason of their interloc-utory nature or otherwise may not ordinarily be reviewed through any of theextraordinary writs, even though the hardship of a prolonged trial "is imposedon parties who are compelled to await the correction of an alleged etror at aninterlocutory stage by an appeal from a final judgment." Uruted Stcues AUtaliAssociation v. United States, 325 U.S. 196, 202 (1945); Roche v. Evaporated Milk

' In Maxuell v. Bishop, 385 US. 650 (1967). for example, the Court granted a petition for a common-law writ of certiorari where the shortness of time available before a scheduled execution made the ordinary .-appeal procedures unavailable. The execution was set for a day ot two after a circuit judge had denied acertificate of probable cause to appeal to the appellate coun. The execution was stayed by a Supreme CourtJustice to allow the petition tobe filed. The Court then reversed the order denying rhe certificate of probableau.s?

S'4m+e rail^ F(7^@cfraN /̂ c^saa^ta 1o^sdeGber ^e(^/ acl^P^ed pG/cy, '^e/rnrj-A-e 3ul^S ^f cri.,, a /^/ocedvK2 Nc^,p. vpendeFrance dFf{^ Cr,.,r 3

76ScG 9^7 ^i; ^Vn^edu^^hon? C2)

;rls /+'ey 379 kr5/ ct s foc,d,(eF ee-rOr s kould 6e . ec^^ ,9p c( w^-th^u^de;SEni- Qcr ^oGsb..^ fhis iS 6y. ^.rdcu„zc ts, i7Sct S2.o i

c/S }e-f-4s(c/e r-/orde3 ^rnycon 3 rc17o/ry

^no^ F„^d^h^^rl a^p a ^fc^^e V7"foCPren - 2- 0 C-10 -05 k 9 (p Fr-.erscn n-pp '` c^S^Zr^e ^5/iel^n 2°°6 o6dy ^N4.n,16u, Ay^ ^ c-oyd65^ zoo6 ► ^L

/°/^/occaji^ accc dEnce ^J,{N /a J, ^ sf^c¢ m.r^lZir,>5 of LQS inCUnfc,.s„{Z to tL^"hi5 ti^no/ad/ecouvf ô^ae` ^^̂,rQ9Qer`°u^da.d i-h,^ccacGCes fo ^' 'f'6 0- drrec^"i^ry a`./®^e.2,yplc.f S^4-/-^ ^ ^

a'^,GhQ n,qN .4

Qpl/3i,or; r cfhe3 ro.-aceec/.

e ^+^1 fLteFery c-:off/ ^s ft coc^r . L f-d^d no^ drsfcl^6 fh F /l, ir?.9'SCCC^c

QIS 5/^rOn ^{ rnv

^ ticrrhess fo o^e 3 e 33cJVS l/i2^ 'a ` 2Ca;0e,0/or,lvd,Q/lhouyh ^I^ey usQd r,ware/ r' ^ ^' v/ GnerS .r^u.v-f -{^, a 3e verS 4( onorher e 3 vorS cc.nd ar-67rp.,a„ce ce prasH n ewdrrn /^ Pro ^.^ , r^constvU PQ r'f'S Qc,^n .^^o-r^a^e In cc^nnec-^ 'f^

ofm r o%,^Yt d "T us^4.,1CJ Ur ^

! 0i1 LfJ

a^ ed beyohQr l1-5 prov..^ce ,.^ cans/^ /-u119 h.e ^-ro:.io%y^cA- -idin 3o,,da^ oF Fh,s cou 3f and ^rc]c¢odinp rn C^nFcYryi/,1114- oxc^ cU, f-h^,e

616e5 cA hold fGtu G aTtia c rcuir^co^, 3fr-canc/ f/^t;>;:;`

7^ thrs ^ouv^

Prc^S^ed U^7a-fo^/pP/y.^.¢^ .T4c oPlq"n oFfh, s cour f P oCeQde d O o^ Ql^l (^25ip°cf Jc^ re 3svs P n'YP3ova / 0^^ f oF Y fe CAo/ .r er ^..h. /,, crm /

58

1

2

4

5

7

9

10

right, Mr. Yeager?

DEFT. ^?=^^GER. sAl*1--^aght. IJII^i-ke

THE COURT: You would like counsel

appointed for this charge?

DEF1'.. A. XEAGER: Yes. And I object to

the indictments being used at the next trial

but I ain't going to be nothing with you, but

let's make it on the record. I object. Itr

has nothing to do with the RICO whatsoever.

11 It would only prejudice the case.

12 THE COURT : . T.he •-Cour^t l-s-•--_I

13 guess.•=the-°Coust.,has....a -questionx:.. __ Idow-,-y.0t1r°2^e

14

15

16

17

18

19

20

21

22

23

24

25

s,aying-youwant -counsel ...on,this....partic.ulax

charge-but what--about- the -other- c1Tax°q-Es`7'

DEFT. A. YEAGER: I'm going back to call

Mr. Adgate so he can call you, because he

said he'd take it.

THE COURT : I -wt-k1-c's"]:"1"°'Mr .

Ard a t,e.^.,...,... . .I.n.. . :-. .^ ot•he•r word'9;..you'.Y,^^ve:.

Mx,-Adgate would •repre^sent• you;`^you woul`d let""

hi-m-repr- esent.:,y.o:u?

.DEFT. A. YEAGER: Yes.

THE COURT: e--Aitd-yeu-°rre^--^-}rour

._o.w.n--.c:®-unse3,, --I s---tha-t--w•h^at--you!..re:• •tella.ng the

Patricia A. Klein, RMR - Official Court Reporter

59

1

2

4

5

6

7

8

9

10

11

12

13

14

15

16

17

1s

19

20

.' 21

22

23

24

25

Court?

TT T'T---n ^ vEAG.E&,.;^.^^s .

T^H"-E COURTc The Court :wi11 inq'uire

of Mr. Adgate as to whether he's available

and whether he's willing to represent' you as

an appointee of the court.

MR. PEACOCK: Your Honor, if Mr.

Adgate is notavailable, what does Mr. Yeager

want to do?

DEFT. A. YEAGER: The tall - Madison or

Benson, the tallest one that we talked about.

MR. PEAC'OCK: Walt Benson.

THE COURT s -- - I s that what •^co.u.! re

saying?

DEFT A,..,,.YEAG.ER ...,XgS.

-MR. PEACOCK: L1,o .}cka^a•, w^^^crrrnsel

for everything?

DEFT,.,A_:"YEPsGE}R^ .. Yews, if --

MR. PEACOCK: The State is concerned

if we're going to go down the road again.

THE COURT: I understand that.

The Court is not going to make any changes

until after I, you know, I talk to these

individuals and see what their -- as of now

that's a firm trial date and we're headed for

Patricia A. Klein, RMR - Official Court Reporter

STATE OF OHIO ^%)"•'^ ^, IN THE COURT OF APPEALS)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUMI&Tra 21 r"ai i i: 5 0

STATE OF OHIO SUfviivliT cGUiv j C.A. No. 21510

Appellee

V.

ANDRE YEAGER

Appellant

CLERI< OF COUR s

APPEAL FROM JUDG^IENTENTERED IN THECOURT OF COMMON PLEASCOUNTY OF SUMMIT, OHIOCASE No. CR 01 12 3475(B)

DECISION AND JOURNAL ENTRY

Dated: September 21, 2005

This cause was heard upon the record in the trial court. Each error assigned

has been reviewed and thd following disposition is made:

SLABY, PRESIDING JUDGE, ANNOUNCES THE DECISIONOF THE COURT WITH RESPECT TO ASSIGNMENTS OFERROR II-IX AND AN OPINION WITH RESPECT TOASSIGNMENT OF ERROR I.

{11} This cause is before this Court pursuant to remand by the Supreme

Court of Ohio. The Supreme Court has vacaied this Court's jsdginent in State v.

Yeager, 9th Dist. No. 21510, 2004-Ohio-2368, and has remanded the case to this

Court for further consideration in light of State v. Manin, 103 Ohio St.3d 385,

2004-Ohio-5471. This Court affirms.

Court of Appeals of Ohio, Ninth Judicial District

3

consecutiyely, yielding a total of five and one-half years imprisonment. Appellant

appealed the trial court's decision to this Court and this Court affirmed the

decision of the trial court. State v. Yeager, 9th Dist. Nos. 21091, 21112, ^1120,

2003-Ohio-1808, appeal denied, 101 Ohio St.3d 1422, 2004-Ohio-123.

{14} While appellant's direct appeal of his first trial wgs pending, a

second trial was held on the charge of intimidation of a victim or witness, in

violation of R.C. 2921.04(B), as contained in counts thirty and thirty-one of

supplements six and seven to the indictment; and the charge of engaging in a

pattern of corrupt activity, in violation of R.C. 2923.32 (A)(1), as contained in

count sixteen of supplement two to the indictment. On March 12, 2003, the jury

returned a verdict of guilty on all counts. Appellant was sentenced accordingly.

{J5} Appellant timely appealed his convictions of engaging in a pattern of

corrupt activity and intin-iidation, setting forth nine assignments of error. The

assignments of error have been rearranged to facilitate review.

II.

FIRST ASSIGNMENT OF ERROR

"THE TRIAL COURT ERRED IN FAILING TO SECURE AVALID WAIVER OF THE DEFENDANT'S RIGHT TOCOUNSEL AND FAILED TO PROPERLY ADVISE HIM OF HISRIGHT TO COUNSEL, THEREBY DENYING HIM HIS RIGHTTO COUNSEL AS GUARANTEED BY THE SIXTHAMENDMENT AND HIS RIGHT TO DUE PROCESS OF LAW."

{16} In his first assignment of error, appellant contends that the trial court

deprived him of his constitutional right to counsel by accepting his waiver without

Court of Appeals of Ohio, Ninth Judicial District

4

ascertaining wHether it was knowingly, intelligently, and voluntarily made. I

disagree.

{9[7} "The Sixth Amendment, as made applicable to the states by the'r;

Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an

vindependent constitutional right of self-representation and that he may prctceed to

defend himself without counsel when he voluntarily, and knowingly and

intelligently elects to do so." State v. Gibson (1976), 45 Ohio St.2d 366,

paragraph one of the syllabus, citing Faretta v. California (1975), 422 U.S. 806,

45 L.Ed.2d 562. However, "[c]ourts are to indulge every reasonable presumption

against the waiver of a fundamental constitutional right including the right to be

represented by counsel." (Citations omitted.) State v. Dyer (1996), 117 Ohio

App.3d 92, 95. Accordingly, "a valid waiver affirmatively must appear in the

record, and the State bears the burden of overcoming the presumption against a

valid waiver." State v. Martin ("Martin I"), 8th Dist. No. 80198, 2003-Ohio-1499,

at 18, citing Dyer, 117 Ohio App.3d at 95. "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."

Gibson, 45 Ohio St.2d at paragraph two of the syllabus.

Ixy {18} In.determiYii'tlg tk"dequaay^®fhther.ttaek-4ourtf^&inquir.y.r ,in=the_ct3ntext

,of-a- defendant's. ^wai,ver of.;,.aounsel, thi^+^rt^»^t^t^tadit3 oE^,the:.

cirsurnstandd:::...StasaftmWagie, 9th Dist. No. 22137, 2005-Ohio-590, at 112. In

.

Court of Appeals of Ohio, Ninth Judicial District

5

v^

assuring that a waiver of counsel is made knowingly, voluntarily, and intelligently,

a trial court should advise the defendant of the dangers and disadvantages of self

representation. See Gibson, 45 Ohio St.2d at 377. See, also, Faretta, 422 U.S. at

835; State v. Weiss (1993), 92 Ohio App.3d 681, 686. While no one factor is

determinative, the trial court should advise the defendant of the .pature of the

charges and the range of allowable punishments, and, in addition, advise the

defendant of the possible defenses to the charges and applicable mitigating

circumstances. See Gibson, 45 Ohio St.2d at 377, citing Von Moltke v. Gillies

(1948), 332 U.S. 708, 723, 92 L.Ed. 309. • k^i^.^wu^Ckhx^held^Eltatthe

tEial-court'sdiscussion-of-possibledefenses and-nu,ti•gating•eireumstanoes^ need not

be-faet»speoif'ac: State v. Trikilis, 9th Dist. Nos. 04CA0096-M & 04CA0097-M,

2005-Ohio-4266, at 113, citing Ragle at 112. "[A] broader discussion of defenses

and niitigating circumstances as applicable to the pending charges is sufficient."

Trikilis at 113. Irr ,addition;°-a-•aourtrmay=consider•varittug"otherifactoi"s,'including

t d f ndan CL ggg.,.e,ducation;fandrlcgatexperienee in=deter.mining`tY ►l1`'d waiver

of cQansei--is-rttade...kaowingly;-•vrrluntar'rlq-;-,and--intdlligently:-^°-Id., citing State v.

Doane (1990), 69 Ohio App.3d 638, 647.

{19} Additionally, Crim.R. 44(C) requires that the trial court obtain a

signed, written waiver by the defendant in "serious offense cases." A "serious

offense" is defined as "any felony, and any misdemeanor for which the penalty

prescribed by law includes confinement for more than six months." Crim.R. 2(C).

Court of Appeals of Ohio, Ninth Judicial District

6

While a signed waiver is the preferred practice, the absence of a waiver is

harmless error if the trial court has substantially complied with Crim.R. 44(A).

State v. Martin ("Martin II"), 103 Ohio St.3d 385, 2004-Ohio-547 1, at 139.

{110} In the present matter, appellant filed a pro se motion captioned,

"MOTION TO PROCEED PRO SE SELF-REPRESENTATION" with,4tie trial

court on June 3, 2002, invoking his right to self-representation. After'reviewing

appellant's June 3, 2002 motion, I find that appellant's motion sufficiently

complied with Crim.R. 44(C) to constitute a valid written waiver. Consequently, I

would overrule appellant's first assignment of error.

SECOND ASSIGNMENT OF ERROR

"THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BYFAILING TO GRANT APPELLANT'S MOTION FORSEVERANCE OF COUNTS HEREIN FOR TRIAL PURPOSES,IN VIOLATION OF APPELLANT'S RIGHTS AS GUARANTEEDTO HIM BY THE FIFTH, SIXTH AND FOURTEENTHAMENDMENTS TO THE UNITED STATES CONSTITUTION."

{111} In his second assignment of error, appellant argues that the trial

court should have severed the engaging in corrupt activity count from the counts

regarding the intimidation of a witness. This Court disagrees.

{112} Crim.R. 8(A) provides that joinder of offenses is proper if the

offenses "are based on the same act or transaction." However, "[i]f it appears that

a defendant *** is prejudiced by a joinder of offenses *** in an indictment, ***

the court shall order an election or separate trial of counts, *** or provide such

other relief 4s justice requires." Crim.R. 14. In order to prevail on a claim that the

Court of Appeals of Ohio. Ninth Judicial District

23

NN C. SLAB,FOR THE COURT

WHITMORE, J.CONCURS IN PART AND WRITES SEPARATELY SAYING:

{152} While I agree with this Court's finding that appellant properly

waived his right to counsel, I do not agree with the finding that the letter appellant

filed with the trial court on June 3, 2002, constituted a valid written waiver within

the context of Crim.R. 44(C). While the preferred practice to follow when a

defendant is waiving his or her right to counsel in a serious offense case such as

the present matter would be to have a defendant execute a written waiver pursuant

to Crim.R. 44, the failure to obtain a written waiver in this case was harmless

error, if the trial court made a sufficient inquiry to determine whether appellant

fully understood and intelligently relinquished his right to be represented by

counsel. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, at139.

{9[53} Irt°tiWiYt`stant- rnatter., .J,do-.not believ^qjkatiijlppeliant's-letter can.be

construed-as a°°written-waiver,>Appellant authored the letter prior to.any-eallaqtry

wiih..tiaea-trial`court. Ascordti,ngly,..xhe.letter cannot-be said,to be a valid -wai-ver-of

AppellamtWs.a>~•ightwta.counsel: .Id. at 141. Fucther,..Ap.pellantus-i-n-court-statements

that he,tliF1 not-wish-t©^proceed without a••law,ycr,.tibut..xvished-to proeeed°as•the-leatt

counsel with=amattorneystill-representinghian>ma^ ,),xc.letter-atr ►biguaus. Based

Court of Appeals of Ohio, Ninth Judicial District

24

upon the-facts-presente.d,_I. would°proceed'forward to the analysis laid outsupra at

9[9[7-9.

{154} In the present matter, appellant admitted that he understood that hel

had the right to counsel. He further admitted that he understood that he would be

bound by the same rules of evidence as attorneys if he opted to represent himself,

and that the trial court advised him of the charges against him and the possible

penalties for those charges. The record further indicates that the trial court

repeatedly warned appellant against self representation, and even appointed stand-

by counsel, who was present and available during the entire proceeding, in the

event appellant changed his mind. The record is replete with evidence that

appellant understood trial procedure. During the trial, appellant made opening and

closing statements, presented testimony on his own behalf, and cross-examined the

State's witnesses.

{155} After reviewing the record, I would find that appellant validly

waived his right to counsel. The trial court sufficiently explained the dangers of

self-representation, the nature of the charges against appellant, and the allowable

penalties for those charges. Appellant understood that the court had appointed

stand-by counsel, available to assist him during the proceedings, yet he still opted

to represent himself. Considering the totality of the circumstances, I would find

that appellant voluntarily, knowingly, and intelligently waived his right to counsel.

Court of Appeals of Ohio, Ninth Judicial District

25

CARR, J.CONCURS IN PART AND DISSENTS IN PART, SAYING:

{9[56} I respectfully dissent. Although the Supreme Court of Ohio has held

that the lack of a written waiver of counsel under Crim.R. 44(C) may be harmless

error, it is only harmless error if the trial court made a sufficient inquiry to

determine whether the defendant fully understood and intelligently relinquished

his or her right to counsel. In the pr.es.ent..case,..the.#ria.l..caurk-f,ailcd-4ra..eugag^.. in

tlae-neeessaxyselloquy--to,ensure-that-appetlant•s-waiver-of counsel--was:lcap,wingly,

inttljigetrtly;-end..u.oaluntarily-Trade. A* °^^.n *̂.:^°^w^a^g^ ^any=saexivec3aeions

be,twe¢nW the-acaurE:_and appellant regarding- his representation;' did`the"FiigT° cd1irt

inquire'as^to appellant's°understanding of^the charges against'hirn and the p'tsss'ibie--

p.ena.lties:,.he.-faeed. A4&diEiena4kp; ,tha-•tr•ia-l-caurt neglected...to_ adequately ftiforrn- -

appeUant--bf'-the°,perils-of •self-representahon.' °l"'would sustain appellant's"fiist

assignmentof-error-andvovertule-appellant's ninth assignment of error with regaxd.,

to tkt^.suffi^i^nGy arg^merrt. fould hold,that appellant's remaining assigniYYe^tts

of.er^r„^s e„moot.

•_.

NATHAN A. RAY, Attorney at Law, 137 South Main Street, Suite 201, Akron,OH 44308, for Appellant.

SHERRI BEVAN WALSH, Prosecutor, and PHILIP D. BOGDANOFF, AssistantProsecuting Attorney, 53 University Ave., 6'" Floor, Akron, OH 44308, forAppellee.

Court of Appeals of Ohio. Ninth Judicial District

^i7'. _:;O`:^r ♦

•`^STATE OF OHIO)ss:

COUNTY OF SU

STATE OF OHIO ,'`^^ ,Cr:; u;= ca^ ^r3rs ^Appellee

V.

ANDRE M. YEAGER

Appellant

IN THE COURT OF APPEALSNINTH JUDICIAL DISTRICT

C. A. No. 21510

t

APPEAL FROM JUDGMENTENTERED IN THECOURT OF COMMON PLEASCOUNTY OF SUMMIT, OHIOCASE No. CR 01 12 3475(B)

DECISION AND JOURNAL ENTRY

Dated: May 12, 2004

This cause was heard upon the record in the trial court. Each error assigned

has been reviewed and the following disposition is made:

CARR, Presiding Judge.

{%1} Appellant, Andre Yeager, appeals the decision of the Summit

County Court of Common Pleas, which found him guilty of engaging in a pattern

of eorrupt activity and intimidation. This Court reverses and remands.

1.

{12} In January and February of 2002, appellant and several co-

defendants were indicted on numerous counts of breaking and entering, in

violation of R.C. 2911.13(A); receiving stolen property, in violation of R.C.

2913.51(A); and engaging in a pattern of corrupt activity, in violation of R.C.

Court of Appeals of Ohio, Ninth Judicial Dislrict

2

2923.32(A). Appellant pled not guilty to the counts as charged in the indictment,

and the matter was set for trial.

{13} After the prosecution rested its case, the trial court dismissed several

counts of the indictment. On April 24, 2002, the jury found appellant guilty Jof

,breaking and entering, a felony in the fifth degree, as contained in counts five,

nine, ten, and eleven of supplement two to the indictment. The jury also found

appellant guilty of receiving stolen property, a felony of the fourth degree, as

contained in count twenty-four of supplement five to the indictment. However,

appellant was found not guilty of breaking and entering as contained in counts

seven, eight, and twelve of supplement two to the indictment. The jury was

deadlocked on the charges of breaking and entering and engaging in a pattern of

corrupt activity, as contained in counts thirteen and sixteen, respectively, of

supplement two to the indictment. The trial court then sentenced appellant to a

definite term'of twelve months imprisonment on each count of breaking and

entering and a definite term of eighteen months imprisonment for one count of

receiving stolen property. The trial court ordered the sentences to be served

consecutively, yielding a total of five and one-half years imprisonment. Appellant

appealed the trial court's decision to this Court and this Court affirmed the

decision of the trial court. State v. Yeager, 9th Dist. Nos. 21091, 21112, 21120,

2003-Ohio-1808, appeal denied (2004), 101 Ohio St. 3d 1422, 2004-Ohio-123.

Court of Appesla of Ohio, Ninth Judicial District

C',nPY3

(9[4} While appellant's direct appeal of his first trial was pending, a

second trial was held on the charge of intimidation of a victim or witness, in

violation of R.C. 2921.04(B), as contained in counts thirty and thirty-one of

supplements six and seven to the indictment; and the charge of engaging in a

pattern of corrupt activity, in violation of R.C. 2923.32(A) (1), as contained in

count sixteen of supplement two to the indictment. On March 12, 2003, the jury

returned a verdict of guilty on all counts. Appellant was sentenced accordingly.

{15} Appellant timely appealed his convictions of engaging in a pattern of

corrupt activity and intimidation, setting forth nine assignments of error. In order

to facilitate review, the assignments of error have been re-arranged.

II.

FIRST ASSIGNMENT OF ERROR

"THE TRIAL COURT ERRED IN FAILING TO SECURE AVALID WAIVER OF THE DEFENDANT'S RIGHT TOCOUNSEL AND FAILED TO PROPERLY ADVISE HIM OF HISRIGHT TO COUNSEL, THEREBY DENYING HIM HIS RIGHTTO COUNSEL AS GUARANTEED BY THE SIXTHAMENDMENT AND HIS RIGHT TO DUE PROCESS OF LAW."

(9[6} In his first assignment of error, appellant contends that the trial court

deprived him of his constitutional right to counsel by accepting his waiver without

ascertaining whether it was knowingly, intelligently, and voluntarily made. This

Court agrees.

{'17} "The Sixth Amendment, as made applicable to the states by the

Fourteenth Amendment, guarantees that a defendant in a state criminal trial has an

Court of Appeals of Ohio, Ninth J udicial District

CCJPY4

independent constitutional right of self-representation and that he may proceed to

defend himself without counsel when he voluntarily, and knowingly and

intelligently elects to do so." State v. Gibson (1976), 45 Ohio St.2d 366,

paragraph one of the syllabus, citing Faretta v. California (1975), 422 U.S. 806,r

45 L.Ed.2d 562. Upxuever; ,-"`Ec]ourts^--area`°to°^•indulg'e-itr-,every--treasonable

przumpti:om'against:^the waiver-of a fundamental°constitutional righi,=includiiig the

righE;twbe l`eptesentedby>:counsel." (Citations omitted.) State v. Dyer (1996), 117

Ohio App.3d 92, 95. Accordingly, "a-rozlid-waiver-affirmatively-mtttst>-appear-in

the-reee>Fd;4n,&theuState.bears:.the>burden.of.ouercoming the prestvmptien-against^a

v^id^a^'" °^tate u„Martin;-8th Dist: No. 80198;1-2003tOhio-1499; u'tting°Dyer

at 95. °Ifr ordertcrestablish-an°effeetiv&-waiver of•-right-to-counsel;=-the,trial court

mdst-Faake.,FS►t#'ficieAt..inquify.-ta, determine,whether defendant-full-y.,unders,tands

and•intelligentLy r.elinqaishes,.that,•righL" Gibson, 45 Ohio St.2d at paragraph two

of the syllabus.

19[8} In determining the sufficiency of the trial court's inquiry in the

context of the defendant's waiver of counsel, the Gibson court applied the test set

forth in Von Moltke v. Gillies (1948), 332 U.S. 708, 723, 92 L.Ed. 309:

"*** To be valid such waiver must be made with an apprehension ofthe nature of the charges, the statutory offenses included withinthem, the range of allowable punishments thereunder, possibledefenses to the charges and circumstances in mitigation thereof, andall other facts essential to a broad understanding of the wholematter."

Court of Appeals of Ohio. Ninth Judicial District

5

{19} Additionally, Crim.R. 44(C) requires that the trial court obtain a

signed, written waiver by the defendant in "serious offense cases." A "serious

offense" is defined as "any felony, and any misdemeanor for which the penalty

prescribed by law includes confinement for more than six months." Crim.R. 2(C).

Upon review, this Court could not find a consensus among the appellate^districts

as to whether Crim.R. 44(C) must be strictly complied with or if substantial

compliance with the criteria set forth in Von Moltke is sufficient. Some appellate

courts have held that the failure to secure a written waiver of the right to counsel is

subject to a"substantiat compliance" standard, and that, so long as the criteria

announced in Von Moltke, are substantially met, a conviction need not be

overturned in the absence of a showing of prejudice.' Other appellate courts,

however, have held that strict compliance with Crim.R. 44(C) is necessary and the

absence of a signed waiver in a serious offense case constitutes reversible error?

This Court will follow the strict compliance approach.

{110} At a status conference on June 4, 2002, appelIant advised the court

on the record that he wished to represent himself. Appellant stated: "Yes. I

waive my right to an attorney, intelligent, and I like to represent myself under the

' State v. Longworth, 3rd Dist. Nos. 1-01-08, 1-01-51, 2001-Ohio-2295,citing State v. Fair (Sept. 17, 1996), 10th Dist. Nos. 96-APAOI-93, 96-APA01-94;State v. Overholt (1991), 77 Ohio App.3d 111, 115.

z State v. Suber, 154 Obio App.3d 681, 2003-Ohio-5210; State v. Martin,8th Dist. No. 80198, 2003-Ohio- 1499.

Court of Appaels af Ohio, Ninth Judicial Dietrict

6"FOPY6

,

Sixth Amendment." On June 14, 2002, a hearing was held regarding appellant's

request to represent himself. The court granted appellant's request to represent

himself, but appointed attorney Nicholas Swyrydenko as standby counsel to assist

appellant. On February 3, 2003, appellant was arraigned on two counts of

intimidation. Acf4w,=entering..^,.plea ofnot=guilty to-both-eounts;,appellant-advised

the.c^he"rnsiotrger,wished

7

{9[12} Imthe-ptaeYr°case;-the°=triahcourt failed.to-ersgaga.inM-the•-neeessary

co130quy^tb"ensuYe thatappellant'swaiver of counsel.was ltnowing^ly,=.intelligently,11

an&vtrluntar'irly-fttade. At.no4ime-during°the many-conversations=between-the

courrand' appel•lant.regarding his representation, ,did-the trial,,court•,inquire as to

appelfiattt'S`ufiderstanding-ofthe charges

idbymo-witr

^d toa se.

n]ei-

thelates

Ka.a-

[104) ap-

•7ro

3rre-

i his

'), 33

and

t has

a] or

:e of

two

and

Par-

523

sev-tionsenvi-"co-wit-

sues.Hy-

;hical;suesandtrial

issuecourtdemsrep-

A betrial

stheration

STATE v. MARTINCileas 816 N.E.2d 227 (Ohlu 2004)

by counsel, self-representation or hybridrepresentation, for'[tjhe question is one ofdegree.' [Bright v. State (1986), 68 Md.App. 41] at 47, 509 A.2d [1227] at 1230.Neither the court, nor the defendant, noreounsel, nor the prosecutor would knowuntil the record of the trial was examinedwho was actually responsible for the con-duct of the defense and in control of decid-ing questions and resolving problems asthey arose. A•s Wilner, J., said in hisconcurring opinion [in Briglat]:

{435} "'There is * * * no clear bound-ary line between hybrid representationand self-representation. Moreover, when,as in this case, a request for some degreeof self-representation is made before trial,there is no way that the court ever canknow on what side of the murky line thematter will fall. ***[T]here are a num-ber of factors to be considered, all of whichare necessarily considered ex post ,(a.cto.'[Briglat, 68 Md.App.] at 57, 509 A.2d at1235." Parrert v. State, 309 Md. at 269-270, 523 A.2d 597.

{9 36} Thus, in a hybrid situation, it isdifficult to ascertain even which parts ofa trial have proceeded without counseland where a waiver, if any, applies. Inthis case, the trial court, faced with thedemands of this particular defendant, de-termined that Martin's requests would re-quire him to proceed pro se with the as-sistance of standby counsel. However,under this ruling, Martin's representationresembled pro se status but also includedsome elements of hybrid representationin that the judge allowed counsel someactive role.

Waiver

{1137} However, even more critical to

our analysis today is that the trial inrluw

did not adeguatelV warn Martin of the

perils of self-re^resentation before the

_Llyfjudge required him to conduct much of

his defense with counsel present in the

Ohio 233

courtroom but not assisting. Martin him-self delivered opening and closing state-ments, questioned the victim and all otherwitnesses, and filed a motion to dismiss.Because the court of appeals held thatMartin was inadequately advised about therisks of self-representation and did notexecute a written waiver, essentia^ly pro-ceeding pro se for the bulk of the,tr.ial, thecourt reversed the judgment of the trialcourt and remanded the cause, for retrial.We agree,

[3] {9 38} In this case, there was nosigned waiver of counsel. Crim.R. 44(C)provides: "Waiver of counsel shall be inopen court and the advice and waiver shallbe recorded ***. In addition, in seriousoffense cases the waiver shall be in writ-ing." While literal compliance withCrim.R. 44(C) is the preferred practice,the written waiver provision of Crim.R. 44is not a constitutional requireinent, and,therefore, we hold that trial courts needdemonstrate only substantial compliance.See State v. Nero (1990), 56 Ohio St.3d106, 108, 564 N.E.2d 474 ("Literal compli-ance with Crim.R. 11 is certainly the pre-ferred practice, but the fact that the trialjudge did not do so does not require vaca-tion of the defendant's guilty plea if thereviewing court determines that there wassubstantial compliance"); State v. Stewart(1977), 51 Ohio St.2d 86, 93, 5 0.0.3d 52,364 N.E.2d 1163 ("although it can validlybe argued that the trial court should ad-here scrupulously to the provisions ofCrim.R. 11(C)(2), * * * there must besome showing of prejudicial effect before aguilty plea may be vacated. * * * Thetrial court substantially compiled with therequirements in Crim.R. 11, and the fail-ure to personally advise appellant that inentering a plea of guilty to murder hewould not be eligible for probation doesnot rise to the status of prejudicial error").

234 ^ Ohio 816 NORTH EASTERN I2EPORTER, 2d SERIES

[41 {1139} Accor(lingly, we reaffirmthat in the case of a "serious offense" asdefined by Crim.R. 2(C), when a criminaldefendant elects to proceed pro se, thetrial court must demonstrate substantialcompliance with Crim.R. 44(A) by makinga sufficient inquiry to determine whetherthe defendant fully understood and intelli-gently relinquished his or her right tocounsel. Gibson, 45 Ohio St.2d 366, 740.0.2d 525,345 N.E.2d 399, paragraph twoof the syllabus. If substantial complianceis demonstrated, then the failure to file awritten waiver is harmless error.

[51 {940} "'To be valid such waivermust be made with an apprehension of thenature of the charges, the statutory of-fenses included within them, the range ofallowable punishments thereunder, possi-ble defenses to the charges and circum-stances in mitigation thereof, and all otherfacts essential to a broad understanding ofthe whole matter."' Id. at 377, 74 0.0.2d525, 345 N.E.2d 399, quoting Von. Moltkev. Gillies (1948), 332 U.S. 708, 723, 68 S.Ct.316, 92 L.Ed. 309.

_bp{1141} The state contends that Martinwaived his ri ght to counsel bv fiu„o tt,a

motion "for respective counsel and co-

counsel." However, this was filed hefnu'̂any o te discussions concern' +n^ 'representation iAauP Tharafnra this nrn

se motion clearlv cannot amount to a waiv-

Er of Martin's righL r., rounsel, and we

must consider whether Martin was ade-quately advised of the perils 9F aelf-renre-sentatian.

[6] {1142} Although Martin certainlymade statements to the effect that hewould like to actively participate in hisdefense, never did he unequivocally statethat he wished to waive his right to coun-sel. In fact, when the trial court informedhim that if he wanted to represent himselfhe could, Martin responded, "I want to bea part of that defense. I don't want to be

assigned." Wlien the trial court askedMartin if it was his intention to act as hisown lawyer, again Martin responded, "No,,it is not, but that's my intention to partici-'.pate as to doing all that I can to protectmy rights as a citizen." Again, after thecourt informed Martin that he waa placinghis attorneys in an awkward position, thecourt asked, "So, it sounds like you want tobe your own attorney, sir?" Martin re-plied for a third time, "That's hot what I'masking of the Court."

{9 43} The trial court cautioned Martinat times that it would be best if Martinwere represented by counsel ("I wouldcaution you against abandoning your law-yers but that's your choice"). But thecourt did not adequately explain the na-ture of the charges, the statutory offeiisesincluded within them, the range of allow-able punishments, possible defenses, miti-gation, or other facts essential to a broadunderstanding of the whole matter, perVon Moltke, 332 U.S. at 724, 68 S.Ct. 316,92 L.Ed. 309, and Gibson, 45 Ohio St.2d at377, 74 0.0.2d 525, 345 N.E2d 399.

{444} We therefore conclude that Mar-tin was not "made aware of the dangersand disadvantages of self-representation"so that the record established that °'he[knew] what he [was] doing and his choice[was] made with eyes open."' Faretta,422 U.S. at 835, 95 S.Ct. 2525, 45 L.Ed.2d562, quoting Adams v. United States exrel. McCann, 317 U.S. at 279, 63 S.Ct. 236,87 L.Ed. 268. If the court had properlycomplied with these requirements and hadclearly advised Martin that he had no rightto be "co-counsel" and that his only choiceswere to proceed pro se or with counsel,Martin may have made a different choice.

{9 45} The trial court failed to substan-tially comply with Crim.R. 44(A) by failingto make a sufficient inquiry to determinewhether Martin fully understood and intel-

rt askedict as hisled, "No,

o partici-o protectafter thes placingition, the

i want toartin re-what I'm

d Martinf Martin'I would,our law-But thethe na-offenses

of allow-les, miti-a broad

;ter, perxt. 316,St.2d at

iat Mar-dangers;ntation"iat "'heis choiceFaretta,L.Ed.2d'tates ex.Ct. 236,pt•operlyand hadno right

r choicescounsel,t choice.

substan-y failing!termine

nd intel-

STATE v MAItTINellcas816 N.E.2d 227 (Ohio 2004)

ligently relinquished liis rig•ht to counsel.Gibson, 45 Ohio SL2d 366, 74 0.O.2d 525,345 N.E.2d 399, paragraph two of the syl-labus. Thus, we hold that Martin did notknowingly and intelligently forgo the bene-fits of counsel ac envisioned by Gibson,Faretta, and Crim.R. 44(A). Accor(lingly,we affirm theL,tjudgment of the court ofappeals, remanding the cause for a newtrial consistent with this opinion.

Judgment affirmed.

RESNICK, FRANCIS E. SWEENEY,SR., PFEIFER, O'CONNOR andO'DONNELL, JJ., concur.

MOYER, C.J., concurs in judgmentonly.

MOYER, C.J., concurring in judgmentonly.

{446} I concur in the judgment ren-dered by the majority but write separatelyfor the reasons that follow. I agree withthe majority that the trial court did notmake a sufficient inquiry to determinewhether Martin fully understood and intel-ligently relinquished his right to counsel asrequired by both the federal and OhioConstitutions and Crim.R. 44(A). I do notagree with the majority's implication thatit is possible for a trial court to substan-tially comply with Crim.R. 441 in "seriousoffense" cases where it fails to obtain awaiver of counsel in writing. Rather,

1. {A a} Ctim.R. 44 stales:

{1 b} "(A) Counsel in serious offenses{1 c} "Where a defendant charged with a

serious offense is unable to obtain counsel,counsel shall be assigned to represent him atevery stage of the proceedings from his initialappearance before a court through appcal asof right, unless the defendant, afier being fullyadvised of his right to assigned counsel,knowingly, intelligently, and voluntarilywaives his right to counsel.

{9 d} "• • *{9 e} "(C) Waiver of counsel shall be in

• open couwY and the advice and waiver shall be

Ohio 235

Crim.R. 52z and relevant case law providethe standards for deterniining whetlier tri-al court error requires reversa] of a conlic-tion. In my view, detertnination of wheth-er Martin's conviction should be reversedand the cause remanded for a new trialdue to noncompliance with Cr4m.R. 44(C)shoulcl be made pursuant to, those stan-dards ratlier than pursuant to a substan-tial-compliance analysis.

{447} The majority correctly observesthat the written-waiver requirement ofCrim.R. 44(C) is not a constitutional re-quirement. Citing our precedent in Statev. Ncno (1990), 56 Ohio St.3d 106, 108, 564N.E.2d 474, and State v. Stezaa.rt (1977), 51Oliio St.2d 86, 93, 5 0.0.3d 52, 364 N.E.2d1163, it concludes that "triallvcourts needdemonstrate only substantial compliance"with Critn.R. 44. I acknowledge thatparagraph two of the syllabus of the ma-jority opinion is consistent with our prece-dent in Nero and Ste2oait. Nevertheless, Ibelieve that those cases should be disaf-fn•tned to the extent that they hold thatcompliance with a Criminal Rule occurredwhen in fact there was a clear lack ofcompliance with an express mandatorycotnponent of the rule.

I

Determination of the Existenceof Error

(148} Crim.R. 44(C) is clear. It pro-vides: "Waiver of counsel slaall be in open

recorded as provided in Rule 22. In addition,in serious offense cases the waiver shall be inwriting."

2. {9 a) Crim.R. 52 provides:

{V b} "(A) Harniless error{fl c} "Any error, defect, il-regularity, or

variance which does not affect substantialrights shall be disregarded.

{A d} "(B) Plain error{A e} "Plain errors ol- defects affecting sub-

statttial rights may be noticed although they

were not brought to the attention of thecourt."

816 NORTH EASTERN REPORTER, 2d SERIES

court and the advice and waiver skall berecorded as provided in Rule 22. In addi-tion, in serious offense cases the waivershall be in writing." (Emphasis added.)This court has consistently held that whena statute or rule uses the word "shall," theprescription is not advisory; rather, it ismandatory. See State v. Burnside, 100Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d71, 436; State v. Camp8elt (2000), 90 OhioSt.3d 320, 324-325, 738 N.E.2d 1178; Statev. Golplain (1998), 81 Ohio St.3d 543, 545-546, 692 N.E.2d 608. In adopting Crim.R.44(C), this court chose the word "shall"three times. We should not deem as advi-sory in nature such a clear mandate.

{9 49} The purpose of Crim.R. 44 is toensure that a defendant's Sixth Amend-ment rights are protected. Crim.R. 44(A)requires a waiver of the right to counsel tobe knowing, intelligent, and voluntary.This language reflects the constitutionalstandard established in Faretta v. Califor-nia (1975), 422 U.S. 806, 835, 95 S.Ct.2525, 45 L.Ed.2d 562, that "in order torepresent himself, the accused must'know-ingly and intelligently' forgo those relin-quished benefits," quoting Johnson v.Zerbst (1938), 304 U.S. 458, 464-465, 58S.CL 1019, 82 L.Ed. 1461. Crim.R. 44(C),however, adds a procedural layer of pro-tection by requiring that a waiver be inwriting. This is an additional safeguardnot mandated by the Constitution. In myview, error occurs if compliance is lackingwith either Crim.R. 44(A) or (C).

{9 50} The m:tjority devotes most of itsanalysis to the consideration whether Mar-tin made a knowing, intelligent, and volun-tary waiver. That inquiry is relevant tothe determination whether the trial courtcomplied with Crim.R. 44(A). Only briet7ydoes the majority mention the undisputedfact that Martin never executed a writtenwaiver as required by Crim.R. 44(C). Themajority thereby implies that substantial

compliance with Crim.R 44(A) is equiva-lent to substantial compliance with Crim.R.44 as a whole. In so doing, the majorityimplies that trial courts need not do whatis expressly required by Crim.R. 44(C)-obtain a waiver in writing. Left unchal-lenged, this implication may potentially re-sult in further erosion of the exprpss re-quirements of the Rules ofqspr.iminalProcedure and ultimately lessen the proba-bility that criminal defendants rbceive thefull protection of constitutional 'and proce-dural law. The Rules of Criminal Proce-dure should not be reduced to mere malle-able guidelines. Failure of a trial court toobtain a written waiver in a "serious of-fense" case is siEnply noncompliance withCrim.R. 44(C) and constitutes trial-courterror.

Determination of Reversibility of Error

{451} As I have stated, the failure of atrial court to comply with a legal ruleshould be analyzed according to estab-lished error analysis embodied in Crim.R.52 mid relevant case law. As we recentlyexplained in State v. Perry, 101 Ohio St2d118, 2004-Ohio-297, 802 N.E.2d 643,Crim.R. 52 empowers appellate courts tocorrect trial-court error in two situations.First, if a defendantobjected to an errorat trial, the appellate court considers, pur-suant to Crim.R. 52(A), whether the errorwas harmless. Under a harmless-errorinquiry, the state has the burden of prov-ing that the error did not affect the sub-stantial rights of the defendant. Whetherthe defendant's substantial rights were af-fected depends on whether the error wasprejudicial, i.e., whether the error affectedthe outcome of the trial. Prejudicial errormandates ivversal of the trial court. Ifthe state proves that the error was notprejudicial, the error is said to have beenharmless, and the appellate court will notcorrect it. Id. at 1115.

is equiva-

ith Crim.R.,e majority

ot do whatR. 44(C)-

eft unchal-

entially re-

:xpress re-yaCriminal

the proba-

-eceive theand proce-

nal Proce-

,ere malle-al court to

;erious of-

iance withtrial-court

of Error

iilure of alegal ruleto estab-n Crim.R.a recently)hio St.3d^.2d 643,courts to;ituations.an error

iers, pur-the errorless-errori of prov-the sub-Whetherwere af-

!rror was• affectedcial error.ourt. Ifwas not

ave been: will not

STATE v. MARTINCitcac816 N.E.2d 227 (Ohia 2004)

{9 52} When a defendant did not objectto an error at trial, the appellate courtuses Crim.R. 52(B) to determine whetherthere was plain error. Id. at 914. As weexplained in Perry, under Crim.R. 52(B),the defendant has the burden of proof. Id.Correction of plain error involves threequestions and, if appropriate, the exerciseof discretion by the appellate court. Statev. Barnes,(2002), 94 Ohio St.3d 21, 27, 759N.E.2d 1240. The defendant must firstshow that the trial court erred by failing tocomply with a legal rule. Id. The defen-dant then must demonstrate that the errorwas plain, i.e., obvious. Id. Finally, thedefendant must show that the error affect-ed his substantial rights. Id. Even if thedefendant establishes that plain error af-fected his substantial rights, the appellatecourt need not necessarily reverse thejudgment of the trial court. In fact, courtsare warned to "notice plain error 'with theutmost caution, under exceptional circum-stances and only to prevent a manifestmiscarriage of justice."' Id., quotingState v. Long (1978), 53 Ohio St.2d 91, 70.0.3d 178, 372 N.E.2d 804, paragraphthree of the syllabus.

{153} There is also a third category oferror, known as structural error. Certainconstitutional defects disturb the basicframework within which a trial is conduct-ed and "permeate '[t}he entire conduct ofthe trial from beginning to end' so that thetrial cannot "'reliably serve its function asa vehicle for determination Lyy7of guilt orinnocence." "' Perry, 101 Ohio St.3d 118,2004-Ohio-297, 802 N.E.2d 643, 1117, quot-ing Arizona v. Fulminante (1991), 499U.S. 279, 309 and 310, 111 S.Ct. 1246, 113L.Ed.2d 302, quoting Rose v. Clark (1986),478 U.S. 570, 677578, 106 S.Ct. 3101, 92L.Ed.2d 460. Structural error affects thesubstantial rights of a criminal defendant,even absent a specific showing that theoutcome of the trial would have been dif-ferent, and requires automatic reversal.

Ohio 237

Because a defendant is relieved of his bur-den to show prejudice, the ffn(ling of struc-tural error is rare and limited to excep-tional cases. Perry, 101 Ohio St.3df,118,2004-Ohio-297, 802 N.E.2d 643, 918, citingJoleri.son v. United States (1997), 520 U.S.461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718.Among the types of error that have beenheld to be structural is a'total denial ofcounsel to a criminal defendant. Id. at469, 117 S.Ct. 1544, 137 1:Ed.2d 718, eitingGideon v. Wainwright (1963), 372 U.S.335, 83 S.Ct. 792, 9 L.Ed.2d 799.

{454} The trial court did not make asufficient inquiry to determine whetherMartin fully understood and intelligentlyrelinquished his right to counsel as re-quired by both the federal and Ohio Con-stitutions and Crim.R. 44(A). I concludethat this error was structural error andthat Martin's conviction must therefore bereversed.

{9 55} The presence and limited involve-ment of standby counsel does not negatethe fact that Martin was forced to conductmuch of his own defense and was instruct-ed by the trial court that he was to repre-sent himself. This is not a case wherecounsel was absent, without a waiver, foronly a very limited portion of the trial.The trial court's noncompliance withCrim.R. 44(A) was an error that permeat-ed the basic framework of Martin's entiretrial. Accordingly, the trial court's non-compliance with Crim.R. 44(A) was struc-tural error. Perry, 101 Ohio St.3d 118,2004-Ohio-297, 802 N.E.2d 643, 117.

{456} The failure of the trial court toprocure a written waiver of Martin's rightto counsel was an obvious deviation fromCrini.R. 44(C). Because Martin did notobject to noncompliance with Crim.R.44(C) at trial, however, he forfeited all butplain error. State v. Gross, 97 Ohio St.3d121, 2002-Ohio-5524, 776 N.E.2d 1061, 9 49.

238 Ohio 81(i NOItTH EASTERN REPORTER, 2d SLItIL'S

In the instant case, because the failure ofthe trial court to comply with Crim.R.44(A) was structural error, it is not neces-sary to determine whether the failure toobtain a written waiver of the right tocounsel is plain error, and if so, reversibleerror.

III

. Conclusion

{9 57} The trial court failed to obtain aknowing, intelligent, and voluntary waiver,thus materially affecting the integrity ofMartin's trial. Although I ambpnot ableto concur in its opinion, I concur in themajority's judgment affirming the judg-ment of the court of appeals and remand-ing the cause for a new trial.

^ yO ^RIYMUM9ER5Y5iEM'1 T /^v"^

103 Ohio St.3d 398

2004-Ohio-5466

CINCINNATI GAS & ELECTRICCOMPANY, Appellant,

V.

PUBLIC UTILITIES COMMISSIONOF OHIO, Appellee.

No. 2003-2034.

Supreme Court of Ohio.

Submitted May 25, 2004.

Decided Oct. 27, 2004.

Background: Electric distribution compa-ny fded application to modify its retailelectric and certified supplier tariffs, whichsought approval of new services for gov-ernmental aggregators and new require-ments for certified suppliers in its serviceterritory. The Public Utilities Commissionissued order requiring company to providegovernmental aggregator with customerinformation, and company appealed.

Holdings: The Supreme Court held that:

(1) PUC's order was not a final, appeal-able order that produced prejudice i5rharm to company, and '

(2) company's compliance with PUC di-rectives to provide governmental ag-gregator with customer ie'lformationrendered issue of reasona6leness andlawfulness of those directives moot.

Appeal dismissed. '

Pfeifer, J., filed a dissenting opinion.

1. Public Utilities e-190

An interim order on appeal in a pend-ing Public Utilities Commission (PUC)proceeding will not be considered by theSupreme Court. R.C. § 4903.13.

2. Public Utilities e-191, 192

Timeliness, as well as an effect onsubstantial rights, is necessary for a validappeal in a pending Public Utilities Com-mission (PUC) proceeding.

3. Electricity 0-11.3(7)

Order of Public Utilities Commission(PUC) requiring electric distribution com-pany to comply with an administrative ruleand to provide governmental aggregatorwith customer information, in connectionwith company's application to modify itsretail electric and certified supplier tariffs,was not a final, appealable order that pro-duced prejudice or harm to company.R.C. § 4903.13; OAC 4901:1-10-32(A).

4. Electricity q-11.3(7)

Electric distribution company's com-pliance with Public Utilities Commission's(PUC) directives, requiring company tocomply with an administrative rule andprovide governmental aggregator withcustomer information, rendered issue ofreasonableness and lawfulness of those di-rectives moot, in connection with proceed-

841 NORTH EASTERN REPORTER, 2d SERIES

164 Ohio App.3d 228

2005-Ohio-5779

The STATE of Ohio, Appellee,

V.

CLINE, Appellant.

No. 2002-CA-5.

Court of Appeals of Ohio,Second District, Champaign County.

Decided Oct. 28, 2005.

Background: Pro se defendant was con-victed in the Court of Common Pleas,Champaign County, of multiple counts ofunauthorized use of a computer, menacingby stalking, conspiracy to commit aggra-vated arson, criminal mischief, intimidationof a crime witness, and telecommunicationsharassment. Defendant appealed. TheCourt of Appeals reversed and remanded.State appealed. Granting review, the Su-preme Court, 103 Ohio St.3d 471, 816N.E.2d 1069, reversed and remanded.

Holding; Upon remand, the Court of Ap-peals, Fain, J., held that the trial court didnot substantially comply with the require-ments for waiver of counsel.

Judgment aecordingly.

1. Criminal Law e-641.4(4)

Trial court did not substantially com-ply with the requirements for waiver ofcounsel, even it thoroughly explained todefendant why it niight not be in his bestinterest to forgo assigned counsel and rep-resent himself, where the court failed toexplain to defendant the nature of thecharges, the statutory offenses includedwithin them, the range of allowable pun-ishments, possible defenses, mitigation, orother facts essential to a broad under-standing of the case. Rules Crim.Proc.,Rule 44(A, C).

2. Criminal Law C:641.4(2)

Even though a trial court may ^`sub4,tute substantial compliance for literal c^"pliance with regard to waiver of counsiis still the obligation of the trial copersonally, to determine whether a defdant is electing to represent himselF°;:waive his right to counsel, with a'j:e)ciently broad understanding of the posiconsequences to render his decislo'knowing, intelligent relinquishment ufright. Rules Crim.Proc., RulG 44(Ay

Nick A. Selvaggio, Champaign doiProsecuting Attorney, for appellee.;

Virginia L. Crews, for appellant:

_Ia-9{111} This appeal of defendanti;lant, James M. Cline, from his comucw sem.ence on munipie counua nas^

d d t thi r'oreman e o s court after oud t d S b G 'ju gmen , rendere on eptem er; ;

Ohio Swas ersed b th remrev ey up eState v. Cline, 103 Ohio St.3d, 471 j:Ohio-5701, 816 N.E2d 1069, rev

f ^"E2003-0hio-4712. The opinion o FSupreme Court was based upondecision in State v. Martin, 103Q}g;i

.2d`"385, 2004-Ohio-5471, 816 N.E°which it held that it Is not peci;

comply literally with the requuCrim.R. 44(C) that the right to coicase involving a serious offense;`waived in writing-that substanttance with the requirement oflsufficient .

{92} We have applied thee!substantial compliance set forth:Martin to the facts in the rec4

"case, and we conclude that theSdid not substantially comply z5quirements for waiver of coun

STATE v. CLINE Ohio 847Cite ae 841 N.n.2d 846 (Ohlo App. 2 niei. 2005)

irt may substi-for literal com-w of counsel, ithe trial court,lether a defen-it himself, and =. with a suffi-of the possibleus decision at

'.shment of the;tule 44(A, C)u;

'endant-tip;his conuaints lias:er ou)r ;•mbei^

in Crim.R. 44(C). Accordingly, the judg-ment of the trial court is reversed, and thiscause is remanded for further proceedingsconsistent with this opinion.

I

{9 3) The facts, as set forth in our earli-er opinion rendered on September 5, 2003,are as follows:

{44}."In the past Cline was convicted ofharassing women who had declined to pur-sue relationships with him, and the trialcourt ordered probation. However, hisprobation was later revoked, and Cline wassent to prison. After his release, Clineembarked upon a series of actions thatresulted in the chargea contained in thetwo indictments involved in this case.

; {A 6} "Between December, 1999, and the^beginning of 2000, Cline met Robin Ra-book, Betty Jean Smith, and Sonja Risnerin internet chat rooms. After several

tes with each of the three women, theyeclined further contact with him. As a

ult, Cline began to harass the women1 e-mail and by telephone, at all hours of

day and night. In an apparent at-mpt to take revenge against the three

en, Cline used his knowledge of coin-tera and the internet, along with the

en's personal information, to createc in their personal lives. For exam-.Cline locked the women out of their

et accounts, and he scheduled dates;!_he women, unbeknownst to them. He

their names to send vulgar mes-to others, and he sent vulgar mes-about the women to others.

B} "Cline also stalked Sonja. In Sep-2000, Cline solicited the assistance

ther woman whom he met on theto burn down the house where

lived. That woman, Gina White,ii Sonja of sabotage to her car, and a

found a mothball in the gas tank.so began an intensive program of

telephone harassment of Sonja. He calledher repeatedly at home, and after shechanged her number, he called l'her atwork. He then began to call people allover Urbana trying to get Sonja's newphone number. Cline also ordered maga-zine subscriptions in her name, caused de-liveries to be made to lor' home, advisedrealtors that she wanted to sell her home,and arranged to have her car•towed.Cline gave Sonja's work number to manypeople, encouraging them to call her there.During a two-month period, Cline madeover 3,000 phone calls.

{A 7} "While C&ne was in jail in Indianaawaiting extradition to Ohio, he beganwriting Sonja's personal information andphysieal description in books in the jail,and encouraging prisoners to write to her,which several of them did. During thistime, Cline continued to pursue plans toburn down her house." 2003-Ohio-4712 at114-7.

118) Cline was charged with multiplecounts of unauthorized use of a computer,menacing by stalking, conspiracy to com-mit aggravated arson, criminal mischief,intimidation of a crime witness, and tele-communications harassment, having previ-ously been convicted of telecommunica-tions harassment. Aiter the voir dire ofthe jury, Cline moved to represent himself.The trial judge told Cline that he didn'tthink that was a good idea, but ultimatelypermitted hhn to represent himself at thetrial, although the attorney who had beenassigned to represent him was required toremain available, during the trial, for con-sultation at Cline's initiative. Cline repre-sented himself vigorously during the trial.

{119} At the end of the state's case,seven of the counts were dismissed at thestate's motion. The jury acquitted Clineof two counts, but convicted him on a totalof 76 counts. He was sentenced to a total

848 Ohio 841 NORTH EASTERN REPORTER, 2d SERIES

rig t to counsel had not been in writing as 0 161 A serious offense is defined a:f

r na e o w og n er shall be in writing."eluded that because Cline's waiver of his

{tl 101 addition, in serious offense cases the waiv:In onr o i i l d cisi n e c -

tence, this appeal was taken. be recorcled as provided in Rule 22. In

bf 67 1/2 years, out of' a possible maximum {915} "Waiver of counsel shall be in",of 87 years. From his conviction and sen- open cout t and the advice and waiver ahall`

required b Crim.R. 44(C) his conviction any f'elony and any misdemeanor for which

. ot er fa tj^ to a broad wustanding of the whole MattPr. ner:d{914} Crim.R. 44(C) provides:

appellant to proceed pro se without execut-within them, the range •^of allowable ptin

ing a written waiver to the right to coun-is ments, ossible defenses, mitigation2-,4

sel " '

char aF- h statutory oPfenss^not a^auatelv exnlain the nature of

{1113} "The trial court erred by allowing

error is as follows: but that's your choice'). 13ut e court[1] {912} Cline's fu•st assignment of tion you against abandoning your la

II were regreFnnt.ad hv ronnsel ('I would caat times that ,t u,nu be best if Martc

,preme Ccu . '"'

{1f 191 "The trial court cautioned Marti}i

the penalty prescribed by law includes?^con6nement for more than six monthsF!Crim.R. 2(C). The state has never dispu4%,ed the application of Crim.^t. 44(C) in tFdt:;case.

{417} In reversing our original judg-Iment on appeal, the Ohio upreme Couct°

ctted, without furt e^^comm n S1n.n-u'';a zzc, 103 Ohio St.3d 385. 2004-0_

5471, 816 N.E.2d 227, a decision it hadren ere ,jus two wee^s before its deci-s'^e. In Martin, the Su re c'

--Cbur h te13 tTia altTiou h Crim.R. 44 C}:requn^es at the waiver of the ri ht toic unse , m t e case o a serious f ein wrt tng, iteral compliance with this re=,quu•ment is not necessary-substan_ti^1.;comp il ance with the rule will suffice. Id:;'at 392. 816 N E 2d 227 . T n rnnrt halathat "when a criminal defendant elects tp;^roceed ro se the trial court ust dep m

on trate substantial complianceCrim.R. 44(A) by making a sufficient tnqut-^;

etermine wTiefully understood and intellieently relin=^quish^r right to counsel." Id:^

{1118) In describing the warnings Mar-Ppureuarit tn . e mandatn nf t a '^ •"- tin had received the court stated:

an sentence on all counts, had to bereversed with the cause to be remgnd^^Cline had assigned a number of other er-rors. We treated all but two of these asmoot, in - view of our disposition of his

^lassigmnent of error involving the waiverof his right to counsel. One of the twoassignments of error that we did addresswas a speedy-trial issue. We overruledthat assignment of error. The other as-signment of error asserted insufficient evi-dence. We sustained that assignment oferror in part, conduding that there wasinsufficient evidence, as a matter of law, toconvict Cline on one count of menacing bystalking and ordered him discharged as tothat offense. We overruled the assign-ment of error in all other respects, con-cluding that there was sufficient evidenceto support Cline's other convictions.

{911} The stateeerfeeted an appeal ofour judgment to the Ohio Sunreme Courtwhich reversed our judament and remand-ed the cause to us. Stote v. r'ti^,,. in4Ohio St.3d 471, 2004-Ohio-5701 816 N R2.t100^ Cline's appeal is again before us

th ti nh•

hall be inaiver shallle 22. In: the waiv-

lefined asfor which

7 includesi months.,er disput-C) in this

inal judg-me Court, State v.1004-Ohio-m it had! its deci-Supreme .`.;.R. 44(C).

right ,ta;,ffense, beµ;h this rai;ibstantiafice. Ic)urt fiiielectaustcemtlefel,ay,

STATE v. CLINECaeax841 N.E.2d 846 (OAiuApp.2Dix1. 2005)

Mnltke [v. Gilliea (1948) }, 332 U.S. 17081 at724, 68 S.Ct. 316, 92 L.Ed. 309, and [Statev.) Gi.bsau, 45 Ohio St.2d [366) at 377, 740.0.2d 525, 345 N.E.2d 399." Id., at 393,816 N.E.2d 227.

{920} The^ l^io .^+^io^r on-

cluded that becauce of theae and otherdeficiencies, "[t)he trial court failed to sub- {1 28} "THE COURT: ThaE is true.stantially comply with Crim R 44(A) hv (1291 "DEFENDANT C,LINE: Fine.

termine whether athat that is the most effective way for your

an intelligently relinoaished is rieht tucouns ' Id.

{1121} In the case before us, as in Statev. Martin, the trial judge colnmendablyattempted to persuade Cline that he wasmaking a mistake by seeking to representhimself. The colloquy between Cline andthe trial judge is worth setting out herein,since the sufficiency of that colloquy underMartin is the issue. Assigned counsel hadjuat informed the trial court that his clientwanted to represent himself. The follow-ing colloquy ensued:

{1122} "THE COURT: Excuse me, whatwe are discussing now is whether you wantto represent yourself.

{923} "DEFENDANT CLINE: Yes,Bir.

{124} "THE COURT: Do you under-stand that if I authorize you to represent$rourself that you're held to the same stan-tlard as attorneys would be in the types of;uestions that you can ask and the thingsat you can do?

{lf 25} "DEFENDANT CLINE: Yes,Although I know that is confusing

tters, since I'm not, per se, a lawyer, Ie no, you know, legal background, noucation other than a business law class1aw. That is the only thing I had foreation for law.

26) "THE COURT: There are ar of people who believe they want to

esent themselves, but the basic rule is

Ohio 849

if they do they're held to the salne stan-dards.

{9 27} "DEFENDANT CLINE: I'msure if I went outside your standards orguidelines, then you or someone in herewould correct me on that. Right?

case to be presented is for you to be the

attorney?

{931} "DEFENDANT CLINE: Well,as me and Mr. Feinstein have not gottenalong, and there is a motion right herethat-it was for Case Number 2001CR-87,State of Ohio versus Patrick Davidson, itwas a motion that was filed by RichardNau, all right, for a motion to discloseexculpatory evidence.

_L,p{1132} "Now I wrote him and said,why can't we file this motion? And hesays, we don't need to.

{933} "So then I turn around and Irewrote i