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9th District reverses Medina County rape convictions
TRACEY BLAIR
Legal News Reporter
Published: October 16, 2018
A defendant’s convictions in a Medina County child rape case must be vacated because there is no written record of a voluntary waiver of counsel, according to the 9th District Court of Appeals.
The court recently reversed the case of Thomas B. Clark, who was originally charged in a 30-count indictment, including a sexually violent predator specification.
After Clark pleaded guilty to three counts of rape and 10 counts of gross sexual imposition, his attorney filed a motion to withdraw. Although the court appointed new counsel, the defendant began to file several pro se motions, including one seeking to withdraw his plea and represent himself.
According to appellate records, the trial court told Clark he could not be represented by both counsel and himself. Clark then said he did not want his attorney to represent him, and was told the trial court would have to “go through a pretty long discussion” with him about it before allowing it.
Meanwhile, the trial court appointed the attorney who had been representing him as his standby counsel.
Clark decided to proceed pro se, and the trial court denied his motion to withdraw his plea.
The trial court then granted Clark’s motion to appoint counsel. Clark was sentenced to 25 years to life in prison on each count of rape and 36 months in prison on each count of gross sexual imposition, to be served concurrently.
On appeal, Clark argued the trial court failed to obtain a waiver of counsel from Clark, so his convictions must be vacated.
The majority panel agreed.
“The facts of this case are somewhat unique,” 9th District Judge Donna J. Carr wrote in her opinion. “Clark was initially represented by counsel and pleaded guilty while represented. At the plea, the charges against Clark were read and the possible penalties were outlined. In addition, the trial court asked a little about Clark’s background but did not discuss his criminal history, if any. At the time of sentencing, Clark was also represented by counsel. However, following the plea, Clark’s original attorney was allowed to withdraw and a second attorney was appointed. Nonetheless, Clark began filing several motions pro se, including one to withdraw his plea and another seeking to represent himself.”
Then, immediately before the hearing on the motion to withdraw, the trial court stated it had “had a conversation” with Clark about his right to counsel. However, that “conversation” was not on the record, Judge Carr added.
The state argued Clark’s pro se motion to represent himself, filed while he was represented and prior to any hearing, constitutes a written waiver. However, the appellate court said it cannot amount to a waiver since it was filed before any discussions of self-representation.
“Moreover, while the record contains ample evidence that Clark did want to represent himself, and there was evidence that, at least at the time of the plea, the charges and penalties were discussed, we cannot say that the trial court sufficiently discussed the dangers and disadvantages of self-representation with Clark on the record (see Hunter, 2012-Ohio-1121),” Judge Carr noted. “And while Clark had already pleaded guilty, he was seeking to represent himself at a hearing on a motion to withdraw his plea. That hearing involved calling witnesses and presenting evidence. Additionally, if Clark were to succeed on his motion to withdraw, he would then be faced with representing himself at trial as well. Given the foregoing, we conclude that the record fails to demonstrate that Clark’s waiver of counsel was knowing, voluntary and intelligent.”
Appellate judges Julie Schafer and Thomas Teodosio concurred.
The case is cited State v. Clark, 2018-Ohio-3932.