COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68255 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION PLES MAYS : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 26, 1995A CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-312202. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones, Cuyahoga County Prosecutor; George J. Sadd and Stephen L. Miles, Assistant County Prosecutors; The Justice Center, Eighth Floor, 1200 Ontario Street, Cleveland, Ohio, 44113. For Defendant-appellant: James A. Draper, Cuyahoga County Public Defender; Daniel Scully, Assistant Public Defender; 100 Lakeside Place, 1200 West Third Street, Cleveland, Ohio, 44113; and, Ples Mays, pro se, Serial Number 306-615, N.C.C.I., P.O. Box 1812, Marion, Ohio, 43301-1812. SWEENEY, JAMES D., P.J.: Defendant-appellant Ples Mays appeals from his conviction for theft, in violation of R.C. 2913.02. The jury determined that the value of the property was less than three hundred dollars and found the appellant guilty of two prior theft offenses. The appellant's prior violence specification was bifurcated, and a conviction was entered by the court at the time of sentencing. The trial court sentenced the appellant to a term of four to ten years incarceration. On May 30, 1994, at approximately 1:00 p.m., the appellant entered the Finast Supermarket located at East 119th and Superior Avenue. The appellant entered the store through the exit door and passed Calvin Watkins, the plain clothes security guard on duty that day. Mr. Watkins testified that he is positive that the appellant entered the store alone. The appellant proceeded to the cigarette display and removed four cartons of cigarettes from the shelf. Mr. Watkins followed the appellant as he entered the drug aisle. He approached the appellant and identified himself as a security guard. The appellant took the cartons out of his coat and dropped them. An altercation ensued and the appellant shoved Mr. Watkins against the racks and attempted to strike him with his fist. Mr. Watkins managed to place a handcuff on one of the appellant's wrists, but was unable to complete the task. He placed the appellant in a bear hug and escorted him to the security - 3 - office. Mr. Watkins used an air phone and contacted one of the managers, Michael Romano. Mr. Romano arrived and assisted Mr. Watkins in securing the appellant. Mr. Watkins telephoned the police. After Mr. Watkins handcuffed the appellant, the appellant stated, "Come on, Brother, why don't you let me go; you know, it's not your merchandise, it's the white man's stuff." (T. 111.) Mr. Watkins informed the appellant that he was employed by Finast and had a job to do. The two cartons of Kools and two cartons of Newport King were worth sixty-seven dollars. When the police searched the appellant he had no money on him. Clinton Stewart testified that the appellant is his neighbor and that he has known him for quite some time. On Memorial Day, several people, including the appellant, were at his home discussing having a barbecue. The appellant and Jocelyn Hawkins agreed to go to the store and purchase the food. Mr. Stewart testified that since he is a diabetic and does not like to go out, he asked the appellant to purchase cigarettes for him. He wanted two cartons of Kools and two cartons of Newports for his brother. Ms. Hawkins was carrying the money. Mr. Stewart testified that Ms. Hawkins and the appellant left his home between 12:00 and 1:00 p.m. When Ms. Hawkins returned, she stated that she and the appellant became separated and that she - 4 - waited for an hour before leaving. Ms. Hawkins returned without groceries. Ms. Carolyn Stevenson testified that she found a flier in the Finast grocery store which asked for witnesses with information regarding an incident which occurred in the store on May 30, 1994. Ms. Stevenson telephoned the number on the flier because she witnessed the appellant's confrontation with the security guard. She was asked to testify. Ms. Stevenson stated that at approximately 1:00 p.m. on May 30, 1994, she was shopping at the Finast store when she observed the security guard handcuff the appellant. The cigarettes fell out of the appellant's hands as he was being handcuffed. The security guard cuffed one hand and then pushed the appellant up against the counter, placed the appellant's hands behind his back and cuffed the other hand as well. The appellant was led to the back of the grocery store. She continued with her shopping. Both Ms. Stevenson and Mr. Watkins are convicted felons. The trial court permitted the State to reopen its case to present evidence of the appellant's prior theft convictions. The appellant had been indicted on one count of robbery, and the court indicated that it would give an instruction on the lesser included of theft. The court found that evidence of the appellant's prior convictions was necessary to enhance the theft from a misdemeanor to a felony of the third degree. Deputy Sheriff Randy Ussery testified that fingerprints of the appellant were taken at the time - 5 - of his previous arrests. Copies of the fingerprints, journal entries, and mug shots were entered into evidence. Counsel for the appellant and the appellant pro se have each brought forth three assignments of error. The first three assignments were presented by counsel and the second three by the appellant pro se. The appellant's first and second assignments of error: I PLES MAYS' CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II MR. MAYS' RIGHTS UNDER ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED AND HE WAS IMPROPERLY DENIED A CRIM.R. 29 ACQUITTAL WHEN HIS CONVICTION IS NOT SUPPORTED BY SUFFICIENT EVIDENCE. The test for reviewing both sufficiency and weight of the evidence was pronounced in State v. Jenks (1991), 61 Ohio St.3d 259, 273: Proceeding to consider the proper standard of appellate review, where the evidence is either circumstantial or direct, we conclude that the relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley, supra. Thus, in reviewing both weight and sufficiency of the evidence, the same test is applied. The verdict will not be disturbed - 6 - unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of facts. Jackson v. Virginia, supra. It must be kept in mind by the appellate court that the jury heard all of the evidence and was instructed as to the law and as a result found the accused guilty beyond a reasonable doubt. Moreover, the relevant inquiry does not involve how the appellate court might interpret the evidence. Rather, the inquiry is, after viewing the evidence in the light most favorable to the prosecution, whether any reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id., 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573-574. The appellant was convicted of theft in violation of R.C. 2913.02: R.C. 2913.02 Theft. (A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: (1) Without the consent of the owner or person authorized to give consent; * * * * (B) Whoever violates this section is guilty of theft. If the value of the property or services stolen is less that three hundred dollars, a violation of this section is petty theft, a misdemeanor of the first degree. If the value of the property or services stolen is three hundred dollars or more and is less than five thousand dollars, or if the property stolen is any of the property listed in section 2913.71 of the Revised Code, or if the offender previously has been convicted of a theft offense, a violation of this section is theft, a felony of the fourth degree. If the value of the property or services stolen is five thousand dollars or more and is less than one - 7 - hundred thousand dollars, or if the offender previously has been convicted of two or more theft offenses, a violation of this section is grand theft, a felony of the third degree. The trial court and the jury heard evidence that the appellant entered the grocery store, proceeded to place four cartons of cigarettes under his coat, had no money on his person, and entreated Mr. Watkins to let him go. This evidence, when viewed in the light most favorable to the prosecution, shows that a reasonable trier of fact could find the appellant guilty of theft. The appellant's first and second assignments of error are overruled. The third assignment of error: III MR. MAYS WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL WHEN THE COURT ALLOWED THE JURY TO HEAR THE PRIOR CONVICTIONS RATHER THAN HAVE THEM HEARD BY THE COURT. The appellant asserts that the trial court erred in permitting the jury to hear evidence of the prior convictions. The appellant argues that the prior convictions merely enhance the penalty and are not an element of the offense. This court has previously held that prior convictions are an essential element of theft under R.C. 2913.02(B) and the State must prove the element beyond a reasonable doubt. State v. Craig (Jan. 24, 1991), Cuyahoga App. No. 58027, unreported. The appellant's third assignment of error is overruled. The appellant's fourth assignment of error: - 8 - IV THE TRIAL COURT ERRED AND DENIED PLES MAYS DUE PROCESS OF LAW WHEN IT DID NOT INFORM DEFENDANT-APPELLANT OF HIS RIGHT TO REQUEST A HEARING TO DETERMINE HIS ELIGIBILITY FOR CONDITIONAL PROBATION OF A DRUG DEPENDENT PERSON. AN ABUSE OF DISCRETION. The appellant argues that the trial court erred in failing to inform him that he was entitled to a hearing to determine whether or not he was eligible for conditional probation. R.C. 2951.04(A) requires that the court inform a defendant of his right to request conditional probation. R.C. 2951.04(B) requires a hearing. Any alleged failure of a trial court to advise a defendant of his right to request conditional probation is harmless error where the record clearly shows the defendant was aware of the right. State v. Boyd (1994), 95 Ohio App.3d 679. This court in Boyd, supra, did not require that a separate hearing be held, but based its opinion upon the information given at the time of sentencing. The court held that the determination to grant or deny conditional probation is subject to review under the abuse of discretion standard. At the sentencing, although counsel for the appellant herein did not use the words "conditional probation" in his request to the court, it is clear that counsel was making such a request. Counsel informed the court that the appellant had entered and completed the Exodus drug treatment program. Counsel presented the court with letters from the program indicating that the appellant was in need of further treatment and that Exodus would accept the appellant. - 9 - The court was given a letter from Pastor Darryl Jackson, the intake coordinator of the City Mission indicating that the appellant had been successful in their program as well. The court also heard from Meldoris Hawkins, a friend of the appellant who informed the court that she and the counselors and ministers were willing to help the appellant, and that the appellant was turning his life around. The trial court did not abuse its discretion in failing to use the words "conditional probation," and did not abuse its discretion in refusing to grant the appellant probation. The appellant's fourth assignment of error is overruled. The fifth assignment of error: V THE TRIAL COURT ERRED BY ALLOWING DEFENDANT- APPELLANT TO REPRESENT HIMSELF WITHOUT FIRST ADVISING HIM OF THE CONSEQUENCES OF PRO/SE REPRESENTATION. The appellant asserts that the trial court erred in failing to inform him of the consequences of his pro se representation. The appellant undertook his own representation when he became disenchanted with his attorney. The appellant claims that he was not informed that the prosecution would be permitted to present a rebuttal witness to testify regarding his prior convictions. Once this happened, he discharged his attorney and presented his own final argument. The defendant should be made aware of the dangers and disadvantages of self-representation. Faretta v. California - 10 - (1975), 422 U.S. 806. A reviewing court may look at the circumstances surrounding the case to determine the validity of the waiver. State v. Noble (July 6, 1990), Lake County App. No. 88-L- 13-203, unreported. After careful review, this court is unable to find that the court's failure to warn the appellant of the dangers of self- representation worked any prejudice upon the appellant. The record is clear, the appellant was represented by counsel throughout the trial. Counsel presented evidence, argued the appropriate motions, and preserved the appellant's rights regarding the jury instructions and in having the jury polled. The only portion of the case presented by the appellant was his closing argument, and since no error occurred during this segment of the trial, no harm resulted. The appellant's fifth assignment of error is overruled. The sixth assignment of error: VI THE TRIAL COURT VIOLATED DEFENDANT-APPELLANT'S SPEEDY TRIAL RIGHTS GUARANTEED UNDER THE CONSTITUTION OF THE UNITED STATES AND THE CONSTITUTION OF OHIO. The appellant contends that the court violated his right to a speedy trial. R.C. 2945.71(C) provides that a person against whom a felony charge is pending must be brought to trial within two hundred seventy days after the arrest. R.C. 2945.71(E) mandates that each day the accused is held in jail shall be counted as three days. R.C. 2945.72 provides that the time for bringing an accused - 11 - to trial may be extended by any period of any continuance granted on the accused's own motion. See also State v. Baker (1993), 92 Ohio App.3d 516, 530. The record reveals the following occurrences during the appellant's case: appellant arrest 5/30/94 appellant made bond 6/15/94 appellant arraigned 7/26/94 pre-trial held 8/ 9/94 reset at defendant's request to 8/18/94 pre-trial 8/18/94 trial at defendant's request to 8/31/94 trial continued 8/31/94 trial continued for new counsel at defendants request to 9/9/94 trial continued 9/ 9/94 trial continued at defendant's request to 10/4/94 trial continued 10/4/94 trial reset at defendant's request to 11/2/94 trial 11/3/94 trial began The appellant was held in jail from May 30, 1994, until June 15, 1994. This period consists of 16 days, and when multiplied by three equals 48 days counted against the State. The appellant was out on bond from June 15, 1994 until July 25, 1994. This period consists of 41 days. The appellant was back in jail from July 26, 1994 until his trial. From the pre-trial held on August 9, 1994 until November 2, - 12 - 1994, each continuance was at the appellant's request, and does not count against the State. The time from July 26, 1994 until August 9, 1994, consists of 14 days, and when multiplied by three equals 42 days counted against the State. The record does not reflect the reason the trial was continued from November 2, 1994 until November 3, 1994. Multiplying this one day by three, equals three more days counted against the State. The total counted against the State for purposes of calculating the time for speedy trial: 48 + 41 + 42 + 3 = 134. The State used 134 out of 270 days permissible under R.C. 2945.71. The appellant was not denied his right to a speedy trial. The appellant's sixth assignment of error is overruled. Judgment affirmed. - 13 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, J., and TERRENCE O'DONNELL, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .