On Aug. 20, 2009, a jury found Curtis D. Schleiger guilty of felonious assault and carrying a concealed weapon. The court imposed a sentence of eight years for the felonious assault, and 18 months on the concealed weapon charge. The sentences were to be served consecutively.
Schleiger appealed. The court of appeals determined that the trial court did not properly impose postrelease control, and therefore sent the case back to the trial court for resentencing in accordance with state law.
At the resentencing hearing, the trial court commented that it had the impression Schleiger wanted to represent himself. The trial court offered to appoint counsel and gave Schleiger the option of having an attorney – who was present in the courtroom – represent him, or of representing himself with counsel standing by, to answer questions. After conferring with the attorney, Schleiger told the court that he wanted to represent himself. The court then asked standby counsel to remain in the courtroom to answer questions Schleiger might have.
The court ultimately denied Schleiger’s request to reconsider his sentence and announced that Schleiger would be subject to three years of mandatory postrelease control upon release from prison. The court also advised him of the consequences of violating postrelease control or of committing a felony while on postrelease control.
Schleiger appealed. The court of appeals followed decisions by other appellate court districts and determined that an offender does not have a right to counsel at a resentencing hearing conducted for the limited purpose of imposing mandatory postrelease control. The court of appeals concluded that such a hearing is “purely ministerial and a defendant does not face a substantial risk of prejudice” without having an attorney.
The court of appeals also noted that the trial court had asked Schleiger if he wanted to have the court appoint an attorney for him and that after conferring with that attorney, Schleiger informed the court that he wanted to represent himself. Thus, the court of appeals concluded that his right to counsel was not violated.
After that, Schleiger’s case came here – the Ohio Supreme Court – for a final review. The limited question before us was whether a defendant is entitled to counsel at a resentencing hearing conducted solely for the purpose of properly imposing mandated postrelease control.
The Sixth Amendment right to counsel in the United States Constitution applies to critical stages of criminal proceedings. And the United States Supreme Court has determined that sentencing is a critical stage of the proceedings.
In writing the majority opinion for this case, Justice Terrence O’Donnell stated that in recognizing that sentencing is a critical stage of the criminal proceedings, “we conclude that a resentencing hearing held for the limited purpose of properly imposing statutorily mandated postrelease control is a critical stage of a criminal proceeding.”
Our court has previously explained that terms of postrelease control are “part of the actual sentence” and that the court must inform the offender regarding these terms.
But our conclusion that the right to an attorney at a resentencing hearing that is conducted for the limited purpose of imposing postrelease control did not end our inquiry, because in this case, Schleiger told the court that he wanted to represent himself. So, did he validly waive that right?
The Sixth Amendment also guarantees a criminal defendant “has an 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.”
Prior court cases have determined that 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.”
But there’s no “formula” or “script” that a court must read to a defendant who states that he elects to proceed without counsel. “The information a defendant must possess in order to make an intelligent election … will depend on a range of case-specific factors, including the defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.” That opens a wide range of possibilities.
The Criminal Rules – which govern the proceedings in criminal trials in Ohio – provide that a criminal defendant charged with a serious offense is entitled to counsel “unless the defendant, after being fully advised of his right to assigned counsel, knowingly, intelligently, and voluntarily waives his right to counsel.” Another of the Criminal Rules provides that the “waiver of counsel shall be in open court and the advice and waiver shall be recorded.”
In Schleiger’s case, the record indicates that the trial court had his presentence investigation report, which disclosed a number of things about Schleiger. The report showed that Schleiger was 26 years old when he was sentenced in 2009, had completed his GED, had committed multiple offenses as a juvenile, had a criminal history of more than 25 misdemeanor and minor felony offenses dating from 2001 through 2008, had been imprisoned on three prior occasions, and had served at least ten different jail terms.
Thus, the trial court had a basis to evaluate Schleiger’s level of education and sophistication with the legal system and could determine Schleiger’s ability to grasp the limited nature of a hearing involving imposition of mandatory postrelease control. The court also was also able to assess the danger to Schleiger of proceeding on his own.
Schleiger elected to go it alone after conferring with counsel, who remained in the courtroom at the trial court’s direction to assist if necessary. The record therefore demonstrated that Schleiger knowingly, intelligently, and voluntarily waived his right to counsel.
We therefore affirmed the judgment of the court of appeals, which held that the trial court had properly imposed postrelease control and had not violated Schleiger’s right to counsel by allowing him to represent himself at the resentencing hearing.
EDITOR’S NOTE: The case referred to is State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970. Case Nos. 2013-0743 and 2013-1046. Decided Sept. 23, 2014. Majority opinion written by Justice Terrence O’Donnell.