State v. Jordan

2020 Ohio 4447

STATE OF OHIO, Plaintiff-Appellee, v. KENDALL JORDAN, Defendant-Appellant.

APPEAL NO. C-190453

APPEAL NO. C-190459

COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

September 16, 2020

TRIAL NO. B-1900390

OPINION.

Criminal Appeals From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ron Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant.

BERGERON, Judge.

{¶1} A so-called "sovereign citizen," facing extremely serious charges related to alleged sexual abuse of minors, elected to represent himself at trial. Second-guessing his decision after his conviction, he now appeals, criticizing the court for permitting him to proceed pro se, along with attacking several issues that emerged at trial and sentencing. After reviewing the entire record and his arguments, we see no error in the trial court's decision and we affirm its judgment.

I.

{¶2} In early 2019, defendant-appellant Kendall Jordan was indicted on 12 counts of rape and four counts of gross sexual imposition stemming from allegations of sexual abuse involving four young children. Initial allegations surfaced in 2012 when Mr. Jordan's daughter (I.J.) and his then-girlfriend's daughter (A.M.) came forward with allegations of abuse. A series of unexpected events, including retirement of the investigating officer, prevented these allegations from receiving full attention until 2018, when two other children (S.M. and K.E.) stepped forward with their own allegations of abuse at the hands of Mr. Jordan. These new accusations rekindled interest in the earlier investigation regarding I.J. and A.M., and upon re-interviews of them both, A.M. provided additional disclosures of abuse. The culmination of these disclosures resulted in Mr. Jordan's indictment and eventual trial on the allegations of all four children.

{¶3} Before trial, the court appointed Mr. Jordan counsel, but this relationship became fraught with difficulties as he refused to assist his attorney. Over the course of several pretrial proceedings, the trial court ultimately determined that Mr. Jordan wished to proceed pro se in the case, and it designated his former counsel as standby counsel. At trial, Mr. Jordan presented his own defense,including cross-examining witnesses, interposing objections, calling his own witness, and tendering an exhibit.

{¶4} Once the trial concluded, the jury found Mr. Jordan guilty of all 16 counts in the indictment. The trial court subsequently handed down its sentence, imposing 15-year-to-life sentences on each of the 12 rape convictions, to run consecutively, and five years each on the four gross sexual imposition convictions, to be served concurrently to his sentences for the rape convictions. This resulted in an aggregate sentence of 180 years to life.

{¶5} Mr. Jordan now appeals, raising five assignments of error. First, he challenges the trial court's allowing him to represent himself because he never properly waived his right to counsel. He also contends that his Confrontation Clause rights were violated, presents challenges to the sufficiency and weight of the evidence against him, and finally maintains that his sentences constituted cruel and unusual punishment. We examine these points in turn.

II.

A.

{¶6} Under his first assignment of error, Mr. Jordan maintains that he never properly waived his right to counsel in violation of his constitutional rights. A criminal defendant's right to counsel is guaranteed under the Sixth Amendment to the United States Constitution and Article 1, Section 10, of the Ohio Constitution. Correlative to this right is the criminal defendant's right to represent one's self. State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 23; State v. Jackson, 1st Dist. Hamilton No. C-180160, 2019-Ohio-2933, ¶ 10 (noting that defendant had constitutional right to represent himself pro se). Denial of either of these rights may result in structural error, warranting reversal. See State v. Furr, 1st Dist. Hamilton No. C-170046, 2018-Ohio-2205, ¶ 3-4.

{¶7} A criminal defendant may waive his or her Sixth Amendment right to counsel so long as the waiver occurs knowingly, intelligently, and voluntarily. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (the choice to relinquish counsel should be made with "eyes open"); Martin at ¶ 24 (noting that criminal defendants have constitutional right to self-representation and may do so where done voluntarily, knowingly, and intelligently). Crim.R. 44 spells out the procedure for waiver of counsel in cases of "serious offenses," which includes felonies (see Crim.R. 2(C)). Crim.R. 44(A) explains that a defendant is entitled to counsel in serious offense cases, unless after being advised of the right, the defendant knowingly, intelligently, and voluntarily waives it. Additionally, Crim.R. 44(C) requires that the waiver "shall be in open court * * * [i]n addition, in serious offense cases the waiver shall be in writing."

{¶8} The writing requirement of Crim.R. 44(C) is not constitutionally ordained, however, and thus appellate courts will uphold waivers so long as the trial court "substantially complies" with the requirements of Crim.R. 44(A), ensuring an appropriate waiver of the right to counsel. Martin at ¶ 39 ("[T]he trial court must demonstrate substantial compliance with Crim.R. 44(A) by making a sufficient inquiry to determine whether the defendant fully understood and intelligently relinquished his or her right to counsel."). We find substantial compliance with Crim.R. 44(A) where the trial court undertakes a sufficient inquiry into whether the defendant fully understood and intelligently relinquished the right to counsel. Id. This requires that the trial court "adequately explain the nature of the charges, the statutory offenses included within them, the range of allowable punishments, possible defenses, mitigation, or other facts essential to a broad understanding of the whole matter." Id. at ¶ 43, citing Von Moltke v. Gillies, 322 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (1948), and State v. Gibson, 45 Ohio St.2d 366, 377, 345 N.E.2d399 (1976). We conduct review de novo of the issue of whether a defendant properly waived the right to counsel. Furr at ¶ 10.

{¶9} In the present case, Mr. Jordan was initially appointed counsel, but trial counsel bemoaned his refusal to cooperate in preparing for trial. Concerned over this behavior, the trial court ordered his competency evaluated, but Mr. Jordan established his competency during this scrutiny. Over the course of several pretrial appearances, the trial court attempted to ascertain whether Mr. Jordan wanted counsel to represent him or proceed pro se. When probed on the matter, however, Mr. Jordan, as best we can tell invoking some version of "sovereign citizen" status, maintained that "due to mistakes and fact of law it's just best I remain quiet," insisted that he wished to "reserve his common law rights under the UCC 1-308," expressed his preference to be called the "beneficiary" (rather than his name) and reiterated that he did not consent to the trial. Interspersed within this gibberish, however, Mr. Jordan left no doubt that he did not consent to counsel's representation of him:

I do not want [trial counsel] to plead or argue in this case for me. I want him to remain silent.

* * *

I do not want [trial counsel] to plead and argue in this case for me. If he does, he's doing so without my consent and against my will.

{¶10} In light of these parroted responses, refusal to work with appointed counsel and acknowledgement that he had not consented to appointment of counsel, the trial court concluded that Mr. Jordan wished to proceed pro se, but not before taking pains to give him every opportunity to exercise his Sixth Amendment right. In addition, the court walked through the nature of the charges against him, explainedthat they constituted felonies, and highlighted the possible punishments available if he were found guilty, including the possibility of life sentences. The trial court also informed Mr. Jordan of his entitlement to have counsel and that the services of an attorney could be of great value. The court emphasized the assistance that an attorney could provide, including presenting possible defenses and challenging the evidence against him. Explaining that Mr. Jordan would be held to the same standards as a represented party and that he lacked the expertise of a lawyer, the court then asked him if, after hearing all the information and the seriousness of the charges against him, he wished to continue without counsel. Mr. Jordan remained unresponsive, repeating many of the same nonsensical answers from before. The trial court then provided him with a copy of the waiver form, which he refused to sign, but maintained that "[f]or the record, I don't want [trial counsel] to plead and argue in this case, I want him to be quiet. If he does have anything to plead and argue in this case * * * he's violating my common law rights."

{¶11} Thus, while Mr. Jordan's waiver does not constitute a textbook illustration of the rule, the trial court bent over backwards to explain everything to him, affording him multiple opportunities to invoke his right to counsel. Sometimes, with "sovereign citizens" who seem to delight in obfuscation, a court can do no more. The record reflects that the trial court engaged Mr. Jordan in a detailed and lengthy explanation regarding what his waiver of counsel entailed, which substantially complied with Crim.R. 44(A). We have similarly upheld waivers in cases involving uncooperative criminal defendants (often imagining themselves some sort of "sovereign citizen") who refuse to properly respond to the waiver inquiry, when the trial court nevertheless engaged in a detailed discussion of the waiver with the defendant. Compare F...