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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

COUNSEL, RIGHT TO (023)

Also see Indigency; Admissions and Confessions; Attorney-Client Relationship.

 

The right to counsel in general

Right to counsel at various stages of investigation and proceedings

Waiver

Juvenile proceedings

Ineffective assistance of counsel, basic principles

Ineffective assistance of counsel, specific instances

Unhappy campers and the right to self-representation

 

Sixth Amendment, U.S. Constitution: "In all criminal prosecutions, the accused shall enjoy the right...to have

the Assistance of Counsel for his defence." Same right guaranteed by Article I, Sec. 10, Ohio Constitution.

R.C. 2935.20 -- Right to counsel.

Criminal Rule 32(B) -- Right to counsel at probation revocation hearings.

Criminal Rule 44 -- Assignment of counsel.

The right to counsel in general

Turner v. Rogers (2011), 131 S.Ct. 2507 – For the most part there is no right to appointed counsel in child support contempt proceedings. But the absence of alternative procedures, such as assessment of the ability to pay, meant denial of counsel in this case was a denial of due process. Appointed counsel might also be required when support payments owed will go to the state to reimburse welfare payments.

State v. Chambliss, 128 Ohio St. 3d 507, 2011-Ohio-1785 – Syllabus: “A pretrial ruling removing a criminal defendant’s retained counsel of choice is a final order subject to immediate appeal.” Court leaves the issue of removal of appointed counsel for another day. Reverses State ex rel. Keenan v. Calabrese (1994), 69 Ohio St. 3d 176. Also see United States v. Gonzalez-Lopez (2006), 548 U.S. 140, 150 finding erroneous deprivation of counsel of choice to be structural error.

FIA Card Services, N.A. v. Salmon, 180 Ohio App. 3d 548, 2009-Ohio-80 – Counsel of record for creditor worked out of a law firm‘s Cleveland office. Hearing in Union County was covered by an attorney from the firm‘s Columbus office who failed to enter his appearance as counsel in writing. Judge dismissed the case. Reversed. There is a presumption that a regularly admitted attorney has authority to represent the client for whom he appears. It is not uncommon for another attorney from the same firm to appear. Dismissal is not warranted when there is no discernable prejudice.

State v. Daily, 184 Ohio App. 3d 241, 2009-Ohio-4582 – Retained counsel was ill and requested continuances. Without inquiry into the nature and likely duration of this illness, the trial court appointed counsel and the defendant entered a no contest plea. The right to counsel includes the right to counsel of choice. Defendant’s Sixth and Fourteenth Amendment rights were violated.

United States v. Gonzalez-Lopez (2006), 126 S.Ct. 2557 -- Missouri federal court refused to admit counsel of choice pro hac vice based on a misinterpretation of a court rule. Initially hired counsel and counsel of choice squabbled and ultimately the defendant was represented at trial by a different attorney. Denial of representation by counsel of choice was structural error. Defendant does not have to show new counsel was ineffective. The right to counsel of choice looks to the accused's belief who can best represent him, not the ultimate fairness of the trial. Because the consequences cannot be calculated with any precision, harmless error analysis would be inappropriate.

Fellers v. United States (2004), 124 S.Ct. 1019 -- After an indictment was returned, and an arrest warrant issued, officers obtained incriminating statements from the defendant at his home without first providing Miranda warnings. Admissions were repeated at the jailhouse after warnings were given. The Sixth Amendment requires suppression of the statements obtained at the house as they were deliberately elicited in the absence of counsel after judicial proceedings had been initiated. Remanded for determination whether the jailhouse statements were the fruit of this illegality.

Alabama v. Shelton (2002), 122 S.Ct. 1764 -- A suspended sentence that may result in imprisonment upon revocation of probation may not be imposed unless the defendant was afforded representation by counsel. Defendant was warned of the dangers of self- representation but never waived his right to counsel. It is not enough to offer counsel at the time of revocation proceedings.

State v. Jones 91 Ohio St. 3d 335, 342-343, 2001-Ohio-57 -- New counsel sought to take over representation in a death penalty case two hours after the jury had been sworn. "In balancing the accused's right to representation of his chosen counsel against the interests of the public in the prompt and efficient administration of justice, the trial court correctly found that the public's interests outweighed those of the appellant."

State v. Henley (2000), 138 Ohio App. 3d 209 -- Court was required to obtain a waiver of the right to counsel before proceeding to a trial at which the defendant represented himself. Failure to do so precludes imposition of jail time. Apparent ability to retain counsel, failure to object and possible waiver at arraignment do not matter. Burden is not on the defendant to disprove waiver.

Brook Park v. Kirsch (2000), 138 Ohio App. 3d 741 -- (1) Simply ascertaining that a retiree received $1600 per month was not enough to justify denying request for appointed counsel. The court was obliged to inquire as to outstanding debts, obligations and liabilities as required by O.A.C. 120-1-03. (2) Court was required to obtain a recorded, oral waiver of the right to counsel. Written waiver was insufficient and failure to record proceedings does not permit conclusion Criminal Rules 22 and 44 were complied with.

Lexington v. Gerhart, Richland App. No. 2004 CA 0030, 2005-Ohio-723 -- Protestations of inability to afford to hire a lawyer and misattribution of girlfriend's income as that of a spouse required further inquiry as to need to appoint counsel as requested. In addition, the court forced trial without obtaining a waiver of the right to counsel, also bulldozing the defendant's protestation he wanted to demand a jury trial, but the prosecutor had failed to appear at the pretrial.

State v. Brown, 163 Ohio App. 3d 222, 2005-Ohio-4590 -- Defendant charged with a minor misdemeanor traffic offense appeared on the date of trial and asked for a continuance so retained counsel could appear. This was denied, based on concern the state's witnesses might not return. Time was allowed for counsel and defense witnesses to appear at a later date. Reversed. The right to counsel is more important than efficient administration of criminal justice.

State v. O'Neill (2000), 140 Ohio App. 3d 48 -- A prior uncounselled OMVI conviction may not be used as one of the prior convictions forming the basis for a felony OMVI prosecution. This includes prior convictions where the mandatory jail time was served in the form of pretrial detention for which jail time credit was given.

State v. Brooke, 113 Ohio St. 3d 199, 2007-Ohio-1533 -- Syllabus: "(1) For purposes of penalty enhancement in later convictions under R.C. 4511.19, when the defendant presents a prima facie showing that prior convictions were unconstitutional because they were uncounselled and resulted in confinement, the burden shifts to the state to prove that the right to counsel was properly waived. (2) Waiver of counsel must be made on the record in open court, and in cases involving serious offenses where the penalty includes confinement for more than six months, the waiver must also be in writing and filed with the court. (Crim. R. 44(C), applied.)" Case below: State v. Brooke, 165 Ohio App. 3d 409, 2005-Ohio-6161.

Westfall v. Cross (2001), 144 Ohio App. 3d 211 -- Unqualified denial of pro hac vice status is a final appealable order.

Walls v. Toledo, 166 Ohio App. 3d 349, 2006-Ohio-2111 -- Pro hac vice status properly denied where counsel had already committed procedural blunders. Pro hac vice status allowed while the case was in federal court does not carry over to state court under the law of the case doctrine.

Gideon v. Wainwright (1963), 372 U.S. 335 -- The right of an indigent defendant in a criminal case to have the assistance of counsel is a fundamental right guaranteed by the Sixth and Fourteenth Amendments.

Argersinger v. Hamlin (1972), 407 U.S. 25 -- An indigent's right to appointed counsel does not turn on whether the offense charged is a felony or a misdemeanor. Counsel must be furnished if the accused faces the loss of liberty.

Solina v. United States (2nd Cir. 1983), 709 F. 2d 160 -- Representation by law school graduate who was never admitted to the bar is a denial of the assistance of counsel, even though evidence against the defendant was overwhelming and representation was not inadequate by conventional standards.

Wheat v. United States (1988), 486 U.S. 153 -- While the Sixth Amendment carries a presumption that a defendant is entitled to counsel of choice, a trial court may disqualify counsel on the basis of an apparent or likely conflict of interest arising from representation of multiple defendants, even if the defendants have waived their right to conflict-free representation.

State, ex rel. Butler, v. Demis (1981), 66 Ohio St. 2d 121 -- Syllabus: "R.C. 120.33(B) does not impose a clear legal duty upon a judge to appoint as counsel of record the attorney personally selected by an indigent party." Also see Thurston v. Maxwell (1965), 3 Ohio St. 2d 92, 93; State v. Bruton (1985), 27 Ohio App. 3d 362.

State ex rel. Keenan v. Calabrese (1994), 69 Ohio St. 3d 176 -- The trial court granted the prosecution's motion to disqualify retained counsel of choice based upon a claimed conflict of interest. Held that this ruling was not a final appealable order and that a writ of prohibition or mandamus would not issue as an appeal after trial would furnish an adequate remedy at law. Also see State v. Keenan (1998), 81 Ohio St. 3d 133, 136-137 upholding disqualification.

Holloway v. Arkansas (1978), 435 U.S. 475 -- Refusal to appoint separate counsel on indication of a conflict of interest arising from representation of multiple codefendants is per se a denial of the Sixth Amendment right to counsel, unless the court has taken proper steps to determine that the risk of conflict is remote. Also see Glasser v. United States (1942), 315 U.S. 60.

State v. Manross (1988), 40 Ohio St. 3d 180 -- Though not constitutionally required in most circumstances, the better practice is to advise defendants who are represented by the same attorney of their right to effective assistance of counsel and inquire whether they wish separate representation. Also see State v. Warden (1986), 33 Ohio App. 3d 87.

Nichols v. United States (1994), 511 U.S. 738 -- A prior uncounselled misdemeanor conviction, constitutional under Scott v. Illinois (1979), 440 U.S. 367 because no sentence of imprisonment was imposed, may be used to enhance the sentence for a later offense, even though that sentence entails imprisonment. Baldasar v. Illinois (1980), 446 U.S. 222, overruled. Opinion leaves standing the rule that an uncounselled prior conviction may not be used to increase the degree of an offense, where proof of the conviction is an element of the crime rather than a sentencing consideration. See Burgett v. Texas (1967), 389 U.S. 109.

State v. Wellman (1974), 37 Ohio St. 2d 162 -- Paragraph one of the syllabus: "Absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial. (Argersinger v. Hamlin, 407 U.S. 25, followed.)"

State v. Roseman (1981), 3 Ohio App. 3d 272 -- As to when the defendant is unable to obtain counsel, headnote states: "Under Crim. R. 44(B), a defendant cannot be sentenced to confinement unless after being fully advised by the court, he knowingly, intelligently and voluntarily waives assignment of counsel." Also see State v. Grimes (1984), 17 Ohio App. 3rd 71 on what constitutes a sufficient waiver or right to counsel.

State v. Haag (1976), 49 Ohio App. 3d 268 -- Applying Crim. R. 22, if the defendant was not represented by counsel, and the record fails to affirmatively demonstrate that he had the opportunity to obtain counsel or waived his right to counsel, any resulting sentence of incarceration must be vacated.

State v. Minor (1979), 64 Ohio App. 2d 129 -- Headnote 2: "The right to counsel guaranteed by Crim. R. 44 is not satisfied where the court causes attorneys in attendance at a court session to counsel unrepresented defendants."

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Right to counsel at various stages of investigation and proceedings

Rothgery v. Gillespie County, Texas (2008), 128 S.Ct. 2578 – The right to counsel attaches at the initial appearance before a magistrate judge, regardless of whether a prosecutor is aware of that initial proceedings. 1983 action to go forward on petitioner‘s claim denial of appointed counsel, as requested at that stage, was to his detriment.

Montejo v. Louisiana (2009), 129 S.Ct. 2079 -- Michigan v. Jackson (1986), 475 U.S. 625 is overruled. That case held that once a defendant has made a request for counsel at arraignment, any waiver of that right during a subsequent police-initiated interrogation is invalid. Point of departure is counsel in Michigan is appointed upon request of the defendant, while the defendant in Montejo was appointed counsel without making an affirmative request. The majority finds sufficient protection is afforded by Miranda v. Arizona (1966), 384 U.S. 436, Edwards v. Arizona (1980), 451 U.S. 477, and Mississippi v. Minnick (1998), 498 U.S. 146. The floridly written majority and concurring decisions, and the angry dissent, suggest shifting sands on the application of stare decisis in Fifth and Sixth Amendment cases.

State v. McCoy, 188 Ohio App. 3d 152, 2010-Ohio-2639 – Defendant’s complaints included lack of counsel at the preliminary hearing and an inadequate response when he asked for new counsel as trial was about to begin. (1) Defendant’s failure to provide a transcript of the preliminary hearing limits review, but even if a transcript were available the defendant has failed to demonstrate prejudice. No motion seeking relief was filed in the trial court before the defendant’s mid-trial entry of a no contest plea. See concurring opinion for a superior analysis. (2) Defendant has failed to overcome the suggestion of bad faith when a request for new counsel is made just before trial.

State v. Webb, 177 Ohio App. 3d 289, 2008-Ohio-3719 – Defendant was back in court for resentencing in light of State v. Foster. He did not request appointment counsel as directed in the form giving notice of the hearing. At the hearing he asked for a continuance, but did not request counsel. Reversed, as the court failed to meet its obligations to obtain a waiver of counsel in accordance with Criminal Rules 44 and 22. It makes no difference that the defendant subsequently acted pro se on appeal.

Halbert v. Michigan (2005), 125 S.Ct. 2582 -- A defendant has the right to appointed counsel in order to pursue leave to appeal from a guilty or no contest plea. Michigan provides for appeals as of right from trials, but requires leave to appeal when there has been a plea. The trial court refused to appoint counsel. First level appeals are calculated to correct error, and as with other first level appeals there is a right to appointed counsel, even though leave is a matter of discretion. Second level discretionary appeals are addressed to matters of broad public interest or resolving conflicts, providing the rationale for there not being a right to appointed counsel at that stage.

Shaker Heights v. Hunte (2001), 145 Ohio App. 3d 150 -- (1) Failure to advise the defendant of his right to counsel at arraignment was not prejudicial as he entered a not guilty plea and made no admissions. (2) Same failure at trial requires reversal for a new trial. Simply eliminating the term of imprisonment is not an adequate remedy as conviction could be used to enhance a subsequent domestic violence charge.

State v. Buell, 70 Ohio St. 3d 1211, 1994-Ohio-475 -- "(T)he right to appointed counsel extends to the first appeal as of right, and no further." Quoting Pennsylvania v. Finley (1987), 481 U.S. 551, 555.

State v. Ferguson, 108 Ohio St. 3d 451, 2006-Ohio-1502, ¶97 -- There is no constitutional right to self-representation in a direct appeal. See Martinez v. California Court of Appeal, Fourth Appellate District (2000), 528 U.S. 152, 163. Nor is there a right to hybrid representation when the defendant is represented by counsel.

State v. Rice, Stark App. No. 2004CA00090, 2004-Ohio-5690 -- Defendant failed to report to begin serving a jail sentence. When he was arrested and brought before the court a year later for resentencing, the court did not obtain a waiver of his right to counsel. Reversed.

Disciplinary Counsel v. Cotten, 115 Ohio St. 3d 113, 2007-Ohio-4481 -- Four justices vote not to discipline a jailhouse lawyer. Applying Johnson v. Avery (1969), 393 U.S. 483, London Correctional Institution is deemed not to provide a reasonable alternative to jailhouse lawyers. Suggested that Cotten's practice of signing pleadings with his own name, instead of having them signed as pro se documents by the fellow inmate, might be a basis for rejection by clerks of courts.

Schmerber v. California (1966), 384 U.S. 757 -- Involuntary withdrawal of blood sample is not a denial of due process, is not contrary to the privilege against self-incrimination, is not a denial of the right to counsel and is not an unreasonable search and seizure. Also see State v. Starnes (1970), 21 Ohio St. 2d 38; Westerville v. Cunningham (1968), 15 Ohio St. 2d 121.

United States v. Wade (1967), 388 U.S. 218 -- A lineup, following the filing of charges, is a critical stage of proceedings at which the accused has the right to counsel.

Massiah v. United States (1964), 377 U.S. 201 -- Surreptitious interrogation of defendant during continuing investigation following indictment, at a time when defendant was represented by counsel, was a denial of right to counsel under the Sixth Amendment. Also see United States v. Henry (1980), 447 U.S. 264.

Kirby v. Illinois (1972), 406 U.S. 682 -- There is no right to counsel at a showup identification procedure before formal charges are filed. Also see State v. Sheardon (1972), 31 Ohio St. 2d 20; State v. Stricklen (1980), 63 Ohio St. 2d 47.

Moore v. Illinois (19977), 434 U.S. 220 -- The right to counsel at an identification procedure attaches once adversary proceedings have been initiated.

Coleman v. Alabama (1970), 399 U.S. 1 -- The preliminary hearing is a critical stage at which the right to counsel applies. Unless the error is harmless, denial of counsel voids a subsequent conviction. Also see State v. Parrott (1971), 27 Ohio St. 2d 205.

Douglas v. California (1963), 372 U.S. 353 -- Indigent has a right to appointed counsel for the direct appeal of his conviction in state courts.

Ross v. Moffitt (1974), 417 U.S. 600 -- The right to appointed counsel does not extent to discretionary appeals to state supreme court. Also see Wainwright v. Torna (1982), 455 U.S. 586.

State v. Fuller (1990), 64 Ohio App. 3d 349 -- Post-conviction relief granted where defendant, who wished to raise ineffective assistance of trial counsel, was not appointed new counsel for his appeal.

Jones v. Barnes (1983), 463 U.S. 745 -- Counsel appointed to prosecute an appeal from a criminal conviction does not have a duty to pursue every non-frivolous issue the client wishes to raise.

Estelle v. Smith (1981), 451 U.S. 454 -- A defendant charged with a capital crime is entitled to consult with counsel prior to a psychiatric examination addressed to the issue of future dangerousness. Also see Satterwhite v. Texas (1988), 486 U.S. 249.

Moran v. Burbine (1986), 475 U.S. 412 -- The Sixth Amendment right to counsel does not attach until the government's role shifts from investigation to accusation through the initiation of adversary judicial proceedings. Note: Rights conferred by R.C. 2935.20 are broader, though not necessarily the basis for application of the exclusionary rule.

Hudson v. South (1994), 99 Ohio App. 3d 208 -- Defendant retained new counsel who was unable to appear on date set for suppression hearing. Court abused its discretion in denying continuance request, and denied defendant his right to counsel by insisting hearing proceed without counsel being present or waived.

State v. Luck (1984), 15 Ohio St. 3d 150 -- Paragraph one of the Syllabus: "A defendant in a criminal prosecution is deprived of the right to assistance of counsel in violation of the Sixth Amendment...when a police officer elicits statements from the defendant after (1) refusing to allow an attorney, retained pursuant to the defendant's request, to speak to the defendant on the telephone, (2) failing to inform the defendant either of the attorney's retention by her husband or of the attorney's telephone calls to the police station on her behalf, and (3) assuring the defendant's attorney that the police will not talk to or interrogate the defendant."

Lakewood v. Waselenchuk (1994), 94 Ohio App. 3d 684 -- OMVI arrestee indicated that she thought she should talk to an attorney early in the booking process, but officers did not offer use of phone or ask name of attorney. When read the implied consent form before the test was administered, she stated "God, and I have to decide this without a lawyer?" Again no opportunity was provided to contact a lawyer. Statutory and constitutional rights to counsel were denied. Test results should have been suppressed.

State v. Taylor (1992), 80 Ohio App. 3d 601 -- At initial appearance defendant was told counsel would be appointed. Subsequently, he mistook detective for appointed counsel and made admissions. Held that regardless of the defendant's or detective's claims concerning this contact, any interrogation once the right to counsel had been invoked was improper unless initiated by the defendant. Minnick v. Mississippi (1990), 498 U.S. 146, applied.

Geders v. United States (1976), 425 U.S. 80 -- It was a denial of the right to counsel to forbid consultation between defendant and counsel during overnight recess between direct and cross examination.

State v. McKnight (1983), 10 Ohio App. 3d 312 -- Crim. R. 32(B) guarantees the right to counsel at a final probation revocation hearing, though not necessarily at the first hearing.

In re Miami County Grand Jury Directive to Creager (1992), 82 Ohio App. 3d 269 -- Person found in contempt for refusal to supply handwriting exemplar is entitled to appointment of counsel for purposes of appeal.

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Waiver

State v. Thompson, 121 Ohio St. 3d 250, 2009-Ohio-314 – Syllabus: "For purposes of penalty enhancement in later convictions under R.C. 4511.19, after the defendant presents a prima facie showing that the prior convictions were unconstitutional because the defendant had not been represented by counsel and had not validly waived the right to counsel and that the prior convictions had resulted in confinement, the burden shift to the state to prove the right to counsel was properly waived. (State v. Brooke, 113 Ohio St. 3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, paragraph one of the syllabus, explained.)" A prima facie case means more than a bare assertion. The defendant must submit evidence such as testimony, affidavits or transcripts.

State v. Downie, 183 Ohio App. 3d 665, 2009-Ohio-4643 – Defendant facing a series of housing code charges appeared and answered “correct” when asked if he understood he was waiving his right to counsel, and entered a no contest plea. Held not to be a valid waiver. While it may have been voluntary, based on the fact he had previously appeared with counsel, the court failed to engage in a colloquy offering representation by counsel and assuring the defendant understood the hazards of self-representation

State v. Williams, 173 Ohio App. 3d 556, 2007-Ohio-5672 – Defendant appeared for trial unrepresented and said he had not qualified for representation by a public defender. The judge had him sign a form filled in to indicate he waived his right to counsel because he could not afford to hire an attorney. Reversed. The court was obliged to fully inquire into the circumstances impinging upon a defendant‘s inability to secure counsel and the consequent need to provide appointed counsel. State v. Tymcio (1975), 42 Ohio St. 2d 39, followed.

State v. Stewart, 188 Ohio App. 3d 850, 2010-Ohio-3657 – According to State v. Martin, 103 Ohio St. 3d 385, 2004-Ohio-5471 for there to be a valid waiver of the right to counsel, “waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments there under, possible defenses to the charges ad circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.” The court failed to meet its obligation to discuss possible defenses and circumstances in mitigation of the offense charged. Moreover, this obligation went back to the time of arraignment.

State v. Jordan, 101 Ohio St. 3d 216, 2004-Ohio-783 -- The same standards apply to the determination of competency to stand trial and competency to waive the right to counsel. See Godines v. Moran (1993), 509 U.S. 389, 397. The opinion further concludes that the court properly accepted the defendant's waiver of his right to present mitigation evidence at the penalty phase of his capital trial. Also see State v. Mink, 101 Ohio St. 3d 350, 2004-Ohio-1580.

State v. Pruitt, Lucas App. No. L-03-1153, 2004-Ohio-7176 -- Reversed as the waiver of the right to counsel preceded determination of competency to stand trial. Proceedings also faulted for lack of a written waiver and permitting hybrid representation, with the defendant in effect serving as co-counsel.

State v. Bumphus, Erie App. No. E-03-043, 2005-Ohio-536 -- Reversal where: (1) there was no written waiver of right to counsel; (2) verbal exchange did not address the serious nature of the charges, the range of punishments and possible defenses; and (3) by not allowing counsel to withdraw, then be appointed as standby counsel, the court permitted improper hybrid representation.

Jackson v. Wickline, 153 Ohio App. 3d 743, 2003-Ohio-4354 -- After initially appointing counsel, court determined the defendant was ineligible based on his W-2. (1) Redetermination of indigency required a full inquiry into the circumstances and the defendant's ability to retain counsel. (2) Before proceeding to trial, the court was required to obtain a waiver of counsel on the record.

State v. Vordenberge, 148 Ohio App. 3d 488, 2002-Ohio-1612, ¶14 -- "...(W)e hold that even if a defendant waives his right to counsel during arraignment, that waiver is effective for that proceeding only. The trial court, before proceeding to trial, must make an independent inquiry into whether a defendant's waiver of counsel at trial is knowingly, voluntarily, and intelligently made."

State v. Obermeyer, 152 Ohio App. 3d 360, 2003-Ohio-1741, ¶ 8 -- Inquiry regarding waiver of right to counsel fell short, where, "(t)he trial court did not discuss the nature of the charge, the statutory offense, the range of allowable punishments, or any possible defenses available to Obermeyer." Also see State v. Montgomery, Franklin App. No. 02AP-927, 2003-Ohio-2888.

State v. Harris, Erie App. No. E-02-019, 2003-Ohio-5190 -- Though the defendant had been extraordinarily ornery through twelve continuances and the discharge of four retained attorneys, reversed for failure to admonish as to the perils of self-representation.

State v. Lanton, Greene App. No. 02CA124, 2003-Ohio-4715 -- Court advised those present for arraignment to hire an attorney or see the public defender. Defendant did not waive counsel when he subsequently entered a no contest plea. Court of appeal vacates jail time imposed, though otherwise lets the conviction stand.

State v. McConnell (2001), 143 Ohio App. 3d 219 -- In judicial release revocation proceedings, fleeting inquiry whether an attorney was desired was insufficient compliance with the Crim R. 32.3(B) and Crim. R. 44(C) requirement there be a written waiver of counsel.

State v. Campbell (1999), 132 Ohio App. 3d 880 -- Since third offense OMVI carries a potential sentence in excess of six months, it is a serious offense for purposes of Crim. R. 44, and waiver of right to counsel must be in writing.

State v. Cline, Champaign App. No. 2002-CA-05, 2003-Ohio-4712 -- Notwithstanding detailed inquiry from the bench concerning waiver of the right to counsel, failure to secure a written waiver compels reversal. On remand from the Ohio Supreme Court following the decision in State v. Martin, 103 Ohio St. 3d 386, 2003-Ohio-1499, the court concludes the colloquy, though lengthy, failed to address the nature of the charges, the statutory offenses included within them, the range of allowable punishments, and possible defense or mitigation. Thus there was not substantial compliance with Crim. R. 44(A).

State v. Suber, 154 Ohio App. 3d 681, 2003-Ohio-5210 -- Defense to passing bad check charges was based on an opportunistic distortion of federal banking law allowing depositors access to funds before checks cleared. Defendant chose to represent himself, but was denied a continuance to permit access to the jail law library. This warrants reversal. Court goes on to reverse its prior stand that written waivers are not always required and joins other courts holding the lack of a written waiver requires reversal.

Cleveland v. Chebib (2001), 143 Ohio App. 3d 295 -- Housing code violations reversed for failure to secure a proper waiver of the right to counsel.

State v. Hall, Greene App. No. 02CA6, 2002-Ohio-4678 -- Defendant showed up for trial without a lawyer and was forced to trial. She said she didn't "know how to go about doing anything," including finding a lawyer or the public defender, and did not expressly state that she wished to waive her right to counsel. Reversed.

Von Moltke v. Gillies (1948), 332 U.S. 708, 723-724 -- To establish a proper waiver of the right to counsel: "(A) judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof and all other facts essential to a broad understanding of the whole matter."

Garfield Heights v. Gipson (1995), 107 Ohio App. 3d 589 -- Mass advice concerning rights and defendant's refusal to sign form or verbally waive right to counsel, though otherwise agreeing to enter no contest plea, rendered plea invalid for failure to obtain a proper waiver of counsel.

State v. Nichols (1997), 122 Ohio App. 3d 631 -- Form entry for arraignments covered advice as to rights, and absent a transcript, is entitled to a presumption of regularity. But this did not establish a valid waiver encompassing the defendant's knowledge of the nature of the charges, the range of punishments, possible defenses, and being told she would be held to the rules of procedure and evidence even if unrepresented.

State v. Dyer (1996), 117 Ohio App. 3d 92 -- Assertion that the defendant did not want a lawyer in an unsigned pro se motion, and on the envelope it was mailed in, plus prosecutor's affidavit concerning waiver are not enough to excuse the court's duty under Criminal Rules 44 and 22 to secure a proper waiver of the right to counsel.

State v. Ebersole (1995), 107 Ohio App. 3d 288 -- Affidavit of indigency form contained a recitation to the effect that failure to cooperate with appointed counsel amounted to a waiver to the right to have additional counsel appointed. Defendant missed a court date and counsel withdrew. When apprehended, defendant indicated he had moved, and unsuccessfully sought appointment of new counsel. Claimed waiver of counsel was ineffective. Waiver must be made orally in open court. Claimed waiver did not pass constitutional muster, in that waiver must be knowing and voluntary and with knowledge of the hazards in undertaking self-representation.

State v. Frost (1993), 86 Ohio App. 3d 772 -- Defendant's inability to retain counsel during the twenty-nine day period leading up to a final probation revocation hearing not construed as an implied waiver. Defendant was incarcerated after initial appearance and never made an express waiver.

State v. Bush (1994), 97 Ohio App. 3d 20 -- Though the defendant may have waived his right to retained or appointed counsel at the trial, request for counsel at the sentencing hearing and indication that the defendant was trying to get the money together to hire an attorney required further inquiry by the court concerning ability or inability to retain counsel.

State v. Dubose (1997), 117 Ohio App. 3d 219 -- Judge telling the defendant that appearance without counsel amounted to waiver did not constitute a valid waiver. Without proper waiver, court erred in imposing jail time as part of the sentence.

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Juvenile proceedings

In re J.S., 184 Ohio App. 3d 310, 2009-Ohio-5189 – Father missed “adjudicatory” hearing on agency’s permanent custody motion but appeared for “dispositional” hearing, at which time counsel was appointed at his request. Failure to appoint counsel before the adjudicatory hearing did not violate his statutory right to counsel, but did violate due process. Here the court was aware of his assertion that he could not afford transportation to the hearing from his residence in an adjoining state, and that there were justifiable reasons for having missed some earlier hearings. The court had enough information at the beginning of the adjudicatory hearing to know counsel might be necessary to protect the father’s rights.

In re J.R.P., 175 Ohio App. 3d 481, 2008-Ohio-989 – A juvenile is entitled to counsel at all stages of proceedings. Failure to obtain a valid waiver of the right to counsel at the initial dispositional hearing, at the hearing where the juvenile admitted to a violation of his probation, and at the dispositional hearing following that, requires reversal. Juvenile was represented by counsel when he entered an admission to the charge against him, but that hearing did not meet the requirements of Juv. R. 29 because he was only asked if he understood the charge. Instead the court was required to ascertain whether he understood the nature of the allegations against him.

In re C.S., 115 Ohio St. 3d 267, 2007-Ohio-4919 -- A delinquent's right to counsel flows from the Due Process Clause of the Sixth Amendment, not the Sixth, because juvenile proceedings are deemed civil in nature. The right to counsel may be waived, but only if the juvenile has first been "counseled" in this regard by a parent, custodian or guardian, or has consulted with an attorney.

In re R.B., 166 Ohio App. 3d 626, 2006-Ohio-264 -- Reversal where the court blew off a juvenile's statement he wanted counsel. ¶26: "The right to counsel is not limited to the indigent, as the state suggests in its brief. Even the affluent have a right to counsel, although they, unlike the indigent, may not require that the state underwrite the expense of legal counsel...We note, though, that it makes no sense to presume, even rebuttably, that a minor can afford counsel. The far more rational presumption is that a minor cannot afford counsel. Of course, the minor's parents may be able to afford counsel." Suggested that while parents may be encouraged to retain counsel, ultimately counsel will have to be provided if the child does not have independent means.

In re Williams, 101 Ohio St. 3d 398, 2004-Ohio-1500 -- Syllabus: "Pursuant to R.C. 2151.352, as clarified by Juv. R. 4(A) and Juv. R. 2(Y), a child who is the subject of a juvenile court proceedings to terminate parental rights is a party to that proceeding and, therefore, is entitled to independent counsel in certain circumstances." Conflict case. In re Williams, Geauga App. Nos. 2002-G-2454 and 2459, affirmed. In re Alfrey, Clark App. No. 01CA0083, disapproved.

In re Wylie, Greene App. No. 2004CA0054, 2004-Ohio-7243 -- Sister's statement to the guardian, taken to mean both girls wished to return to their mother, placed the court under a duty to ascertain the need to appoint counsel. This was partially satisfied when one girl was interviewed in chambers and expressed no preference, but the issue was unresolved as to the other, requiring reversal.

In re M.L.R., 150 Ohio App. 3d 39, 2002-Ohio-5958 -- Dispositional hearing on request for permanent custody was set for 9:00. Counsel for father was allowed to withdraw when his client had not appeared by 9:45. Father arrived as hearing was underway. The court refused to appoint new counsel and father did not waive his right to counsel. Reversed. Claimed lack of "cooperation" at the last minute and without elaboration was not a sufficient basis for permitting withdrawal. Nor did the attorney's conduct satisfy ethical standards. Also see In re Tyler S., Lucas App. No. L-04-1294, 2005-Ohio-1225.

In re Amos, 154 Ohio App. 3d 434, 2003-Ohio-5014 -- In a delinquency case, the court appointed a guardian ad litem, but not an attorney. Reversed, as the record does not demonstrate a waiver of the right to counsel.

In re Johnston (2001), 142 Ohio App. 3d 314 -- A delinquency trial cannot go forward unless the juvenile is represented by counsel or has waived his right to counsel. Unsuccessful efforts by the juvenile to hire counsel do not constitute waiver.

In re William B., 163 Ohio App. 3d 201, 2005-Ohio-4428 -- Juvenile was before the court for violation of terms of placement at a treatment center, and was facing two suspended DYS terms. Right to counsel was violated. He could not be considered to be represented by his mother as their interests were adverse. Purported waiver was presented to the juvenile in terms of contesting the charge and was ineffective. The court also should have appointed a guardian ad litem. The admission colloquy did not substantially comply with Juv. R. 29 as the magistrate referred only to the shorter of the two suspended terms the juvenile faced.

In re Smith (2001), 142 Ohio App. 3d 16, 19-20 -- Presence of a case worker from the agency to which a juvenile was committed nullified the automatic appointment of counsel required by R.C. 2151.352 for those not accompanied by a parent, guardian or custodian. Reversed anyway as merely advising the child she was entitled to counsel, and that an attorney would be appointed if she was indigent, was insufficient.

In re L.S., 152 Ohio App. 3d 500, 2003-Ohio-2045 -- ¶ 49: There is no constitutional right to the effective representation by counsel in civil cases between individual parents involving visitation and residential parent status.

In re Holt, Franklin App. No. 03AP-3555, 2003-Ohio-5580, ¶ 14 -- The right to counsel in custody cases that do not involve the termination of parental rights is statutory. "Our research reveals no court, in juvenile custody proceedings, has recognized a right to counsel under the First or Ninth Amendments to the United States Constitution, or a right to counsel under any provision of the Ohio Constitution. Therefore, appellant's reliance on the Ohio and United States Constitutions is misplaced."

In re Sherman, 162 Ohio App. 3d 73, 2005-Ohio-3444 -- Three children wanted to be permanently committed. One wanted to live with her father. Because of a conflict of interest, the same attorney could not continue to represent all four children. Reversed for failure to appoint separate counsel.

In re Johnson (1995), 106 Ohio App. 3d 38, 41 -- "Juveniles must be afforded representation by legal counsel at all stages of proceedings in juvenile court...When a defendant waives his or her right to counsel, the court must make sufficient inquiry to determine whether the defendant has done so knowingly, intelligently and voluntarily...The court's inquiry must encompass the totality of the circumstances before the court can be satisfied that the waiver was given knowingly, intelligently and voluntarily...In applying the totality-of-the-circumstances test to juveniles, courts must give close scrutiny to factors such as the juvenile's age, emotional stability, mental capacity, and prior criminal experience."

In re Kriak (1986), 30 Ohio App. 3d 83 -- Pursuant to R.C. 2151.352, a juvenile has a statutory right to counsel in all proceedings, regardless of the potential for incarceration. Accordingly he must be advised of his right to appointed counsel if indigent.

In re East (1995), 105 Ohio App. 3d 221 -- Juvenile asserted he had not waived his right to counsel. Though there was no transcript, court accepts assertion in referee's report that there had been a waiver. Though mother could not waive right to counsel by signing waiver form, the mother's presence is taken as an indication that waiver was intelligent and knowing.

In re Solis (1997), 124 Ohio App. 3d 547 -- Juvenile Rule 37 now requires recording of juvenile dispositional hearings. Where there is no transcript available, mere entry in the journal entry that counsel was waived is insufficient to establish waiver. Amendment of the rule means In re East (1995), 105 Ohio App. 3d 221 is no longer good law. Same defect applied to plea hearing, but the assignment of error only referred to the dispositional hearing.

In re Miller (1997), 119 Ohio App. 3d 52 -- Juvenile's waiver of the right to counsel was insufficient where the judge jointly addressed the group making initial appearances, then utilized a form waiver without individually addressing those waiving counsel.

State ex rel. Asberry v. Payne (1998) 82 Ohio St. 44 -- Maternal grandmother petitioning a juvenile court for custody has the right to have counsel appointed to represent her pursuant to Chapter 120 of the Revised Code. R.C. 2151.353 entitles all indigent parties in juvenile proceedings to appointed counsel, and this is not limited by reference in R.C. 120.06 to representation in prosecutions which could result in the loss of liberty.

McKinney v. McClure (1995), 102 Ohio App. 3d 165 -- The right to appointed counsel applies to all matters properly brought before the juvenile court, including issues of child custody and visitation which are adjunct to an underlying support action. Juv. R. 4(A) and R.C. 2151.352 applied.

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Ineffective assistance of counsel, basic principles

Sears v. Upton (2010), 130 S.Ct. 3259 – In state postconviction the state conceded defense counsel’s penalty phase investigation was constitutionally deficient: Counsel had focused on impact on family members, but missed an abusive home environment, brain abnormality, low functioning and other factors. The state court nonetheless rejected the claim, summarily stating it was unable to measure prejudice. Remanded. The state court failed to meet its obligation under Strickland. The court should take all that is now known and weigh the likelihood of a different outcome had this information been provided to the jury. Compare Harrington v. Richter (2011), 131 S.Ct. 770, which provides a collection of pro-prosecution aphorisms premised on AEDPA which might be mustered to counter Strickland claims.

Bobby v. Van Hook (2009), 130 S.Ct. 13 – The Supreme Court scolds the Sixth Circuit for applying expanded ABA standards for representation in capital cases to evaluate ineffective assistance of counsel claims in a case tried long before they were adopted. The ABA standards do not control courts in the determination of what constitutes adequate representation.

Knowles v. Mirzayance (2009), 129 S.Ct. 1411 – Under California law trials are bifurcated when there has been a plea of not guilty by reason of insanity. First the jury determines guilt, then it weighs the insanity plea. Evidence that would have gone to insanity was introduced at the guilt phase, in hope of negating the premeditation or deliberation element of first degree murder, but the defendant was found guilty. On the advice of counsel the insanity plea was withdrawn. California courts found this did not constitute ineffective assistance of counsel. Ninth Circuit disagreed, the rationale being that the defendant had nothing to lose by going forward on the insanity plea. Ruling rejected under ADEPA as the state court‘s ruling was not an unreasonable application of clearly established federal law. Nor, in Justice Thomas‘ view, was there ineffective assistance of counsel under Strickland.

Wright v. VanPatten (2008), 128 S.Ct. 743 – While this case primarily turns on post-ADEPA federal habeas practice, the opinion discusses United States v. Cronic (1984), 466 U.S. 648. When circumstances are such that ineffectiveness may be presumes without the usual two-step analysis of Strickland. At issue was the use of a speakerphone during a plea hearing. Court does not address the ultimate merits, but defendant loses under ADEPA analysis. For similar analysis also see Carey v. Muslandin, (2006), 127 S.Ct. 649.

State v. Hutton, 100 Ohio St. 3d 176, 2003-Ohio-5607 -- Syllabus: "The doctrine of res judicata does not apply to bar a claim of ineffective assistance of appellate counsel not previously raised in an appeal where the defendant was represented on that appeal by the same attorney who allegedly had provided the ineffective assistance, even where the defendant was also represented on that appeal by another attorney who had not represented the defendant at the time of the alleged ineffective assistance." Compare Massaro v. United States (2003), 123 S.Ct. 1690 which permits litigating ineffective assistance claims through a postconviction motion even when there has been a change of counsel for the direct appeal.

In re Malone, Franklin App. No. 03AP-489, 2003-Ohio-7156, ¶ 31 -- An attorney working pro bono is not held to a lower level of competency than a paid attorney. Citing Xu Yong Lu v. Ashcroft (3rd Cir, 2001), 259 F. 3d 127, 135.

State v. Ruby, 149 Ohio App. 3d 541, 2002-Ohio-5381 -- Though declining to find plain error in the prosecutor's improper reference to the defendant's post-arrest silence, and declining to reverse based on weight and sufficiency, the court finds counsel's failure to object amounted to ineffective assistance of counsel. The reasonable probability that the outcome would have been different phase of Strickland analysis requires this result where the evidence was less than overwhelming, though good enough to survive weight analysis.

Yarborough v. Gentry 2003, 124 S.Ct. 1, 7 -- Habeas claim of ineffective assistance of counsel sunk by AEDPA standard: "To be sure, Gentry's lawyer was no Aristotle or even Clarence Darrow. But the Ninth Circuit's conclusion - not only that his performance was deficient, but that any disagreement with that conclusion would be objectively unreasonable - gives too little deference to the state courts that have primary responsibility for supervising defense counsel in state criminal trials."

McMann v. Richardson (1970), 397 U.S. 759, 771 -- "(I)f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts."

Strickland v. Washington (1984), 466 U.S. 668, 687 -- Two part test for determining whether defendant received ineffective assistance of counsel: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Also see State v. Lytle (1976), 48 Ohio St. 2d 391, 396-397; State v. Johnson (1986), 24 Ohio St. 3d 87; State v. Brooks (1986), 25 Ohio St. 3d 144; State v. Decker (1986), 28 Ohio St. 3d 137; State v. Bradley (1989), 42 Ohio St. 3d 136.

United States v. Cronic (1984), 466 U.S. 648 -- (1) In evaluating Sixth Amendment claims of ineffective assistance of counsel, surrounding circumstances such as the experience of counsel, time allowed for preparation and the complexity of the case are relevant, but the primary focus should be on the functioning of the adversarial process during trial. (2) At p. 658: Because there is a presumption that counsel is competent, the defendant bears the burden of demonstrating a denial of effective assistance.

Lockhart v. Fretwell (1993), 506 U.S. 364 -- While the deficient performance component of the Strickland test is to be determined based on a contemporaneous assessment of counsel's performance, the prejudice component focuses on the ultimate fairness of the proceedings and may be measured by the law as it stands when the appeal is heard. At the sentencing phase of a death penalty trial, counsel failed to object to the use of murder in the course of a robbery as both an element of capital murder and as an aggravating circumstance. While this was contrary to an 8th Circuit decision in force at the time of trial, the 8th Circuit had held otherwise by the time the defendant's habeas was heard.

State v. Carpenter (1996), 116 Ohio App. 3d 613 -- Court indicates it takes less of a showing for reversal based on ineffective assistance of counsel that it does for reversal as plain error, though exaggerating somewhat the threshold for plain error reversal. Prosecutor unfairly attacked the credibility of the defendant by calling her a liar, improperly vouched for the credibility of the state's witnesses, and expressed belief in the guilt of the accused. Conviction reversed as defense counsel's failure to object meant he rendered ineffective assistance.

State v. Nichols (1996), 116 Ohio App. 3d 759, 767 -- "We have no confidence in the correctness of the verdicts where credibility is the determining issue and defense counsel fails to object to impermissible stacking of inferences and improper bolstering of state's witnesses. We have, on one hand, an eyewitness whose credibility is enhanced through hearsay testimony and, on the other hand, an alibi whose believability is diminished by testimony about his criminal record, one hundred-dollar a day drug habit, and his association with a codefendant." Defense counsel's representation found ineffective.

State v. Reed (1996), 74 Ohio App. 3d 534 -- (1) At p. 535: "We hold that the two-prong analysis found in Strickland is the appropriate level of review to determine whether an appellant has raised a 'genuine issue' in an application for reopening an appeal under App. R. 26(B)(5)." (2) Failure of appellate counsel to raise Faretta right to self representation issue meets both prongs of the Strickland test.

Verbanic v. Verbanic (1994), 70 Ohio St. 3d 41 -- The judge owes a duty to both sides to insure proceedings are conducted in a dignified and legal manner. Attorney in a divorce trial should have been removed. Among his improprieties were calling the judge a sick man and telling his he would not see Christmas, pushing another attorney, and suggesting that the husband had AIDS. He also failed to introduce necessary testimony. Also see Mahoning County Bar Association v. Creagan (1994), 69 Ohio St. 3d 550 where the lawyer involved was permanently disbarred.

State v. Scudder (1998), 131 Ohio App. 3d 470 -- Because postconviction actions are civil in nature, the Sixth Amendment right to the effective assistance of counsel does not apply.

State v. Burgins (1988), 44 Ohio App. 3d 158, 160 -- Ineffective assistance is rendered when counsel adopts a strategy so far beyond the realm of legitimate trial strategy that ordinary trial counsel would scoff at hearing of it. Defense counsel expressed the opinion that he did not believe his own client and expected the jury to return a jury verdict.

In re Sherlock (1987), 37 Ohio App. 3d 204, 525 N.E. 2d 512 -- Improper to hold attorney in contempt for refusal to participate in trial when doing so would have rendered ineffective assistance of counsel and have been in contravention of the Code of Professional Responsibility. Compare State v. Christon (1990), 68 Ohio App. 3d 471 where lack of preparation was due to inaction.

State v. Smith (1987), 36 Ohio App. 3d 162, 163 -- A properly licensed attorney is presumed to execute his duties in a competent and ethical manner.

In re Travis Children (1992), 80 Ohio App. 3d 620 -- Parent in proceedings to permanently terminate parental rights has the right to effective assistance of counsel. Strickland standards are to be applied.

Jones v. Lucas County Children Services Board (1988), 46 Ohio App. 3d 85 -- Headnote: "The two-part test for ineffective assistance of counsel used in criminal cases, announced in Strickland v. Washington (1984), 466 U.S. 668, 687, is equally applicable in actions by the state to force the permanent, involuntary termination of parental rights."

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Ineffective assistance of counsel, specific instances

Padilla v. Kentucky (2010), 130 S.Ct. 1473 – Counsel who fails to provide to provide advice concerning the immigration law consequences of a guilty plea is constitutionally defective. Remedy hinges on proof of prejudice, which the Padilla court does not address.

Porter v. McCollum (2009), 130 S.Ct. 447 – Capital defendant received ineffective assistance of counsel. Though trial began with the defendant representing himself, he pled guilty as the guilt phase went forward and was represented by standby counsel during the penalty phase. A minimal presentation was made. Among disclosures during postconviction were the defendant‘s abusive childhood and his service under horrific conditions during the Korean War, including being wounded twice during major battles. Because the Florida courts did not determine whether counsel‘s performance was deficient for purposes of the first phase of Strickland analysis, the issue is addressed de novo by the Supreme Court. Performance was deficient. Under ADEPA the Florida court‘s determination that counsel‘s omissions were not prejudicial was not a reasonable application of Strickland.

State v. Powell, 188 Ohio App. 3d 232, 2010-Ohio-3247 -- Military officer retained a Dayton law firm to represent him in Greene County on charges of voyeurism, obstructing official business and criminal trespass. On counsel’s advice he turned dorm the opportunity to plead to the non sex offenses, but ultimately pled to voyeurism. Though the offense predated the effective date of S.B. 10 he was classified as a Tier I offender. This forced his separation from the military. He trial court denied a motion to withdraw the guilty. Powell appealed pro se and the court of appeals reversed based on ineffective assistance of counsel. Counsel appeared to have no understanding of S.B. 10 and was unaware that voyeurism was a registration exempt offense under former law. Pre-Bodyke case.

State v. Irwin, 184 Ohio App. 3d 764, 2009-Ohio-5271 – Through a forty page published decision the court rejects numerous assignments of error based on specific events, but faults defense counsel’s performance in response to those circumstances. Cumulative effect is the basis for reversal based on ineffective assistance of counsel. Footnotes at the end of the opinion state counsel was found in contempt (see 2009-Ohio-4814) and disbarred (see 121 Ohio St. 3d 387.)

State v. Cihonski, 178 Ohio App. 3d 713, 2008-Ohio-5191 – Counsel was ineffective for failing to address an insanity plea entered by former counsel. ¶30: "An attorney substituting himself as counsel in a pending case has a duty to review previous filings in the case. Overall failure by counsel and the court to notify the jury that the defendant had entered a plea of not guilty by reason of insanity and to instruct the jury on that plea constituted structural error. Defendant was found competent to stand trial, but such finding does not preclude a jury finding insanity. Failure to bring insanity to the attention of the jury denied appellant his constitutional right to trial by jury. Evidence was such as might provide a basis for finding insanity.

State v. Ward, 187 Ohio App. 3d 384, 2010-Ohio-1794 – Defendant sentenced to prison for trafficking in heroin indicated she was unemployed, provided sole support for two children, had a slipped disk, and in the future would be unable to work through a temp agency because of the felony conviction. Under these circumstances the court was obliged to conduct a hearing on her ability to pay a mandatory fine. Furthermore, counsel was ineffective for failing to file the affidavit of indigency she had filled out, as had it been filed and a hearing conducted there is a reasonable probability the fine would not have been levied.

State v. Shanklin, 185 Ohio App. 3d 603, 2009-Ohio-6843 – Defendant fraudulently used a purchase order as security for a $35,000 loan for one month at 24% interest. Counsel was ineffective for failing to object to the hearsay testimony of investigators concerning their investigation of the purchase order.

Williams v. Taylor (2000), 120 U.S. 1495 -- Ineffective assistance of counsel found where defense counsel failed to investigate and to present substantial mitigating evidence to the sentencing jury. Also see Wiggins v. Smith (2003), 123 S.Ct. 2527 reaching the same conclusion in an AEDPA case. State court's conclusion to the contrary was an unreasonable application of Strickland.

Rompilla v. Beard (2005), 545 U.S.___, 125 S.Ct. 2456 -- Trial counsel relied on the defendant's claim he had had an ordinary upbringing and failed to review the file from a former prosecution which would have disclosed a troubled childhood, mental illness and alcoholism. State court's determination counsel was not ineffective was an unreasonable application of Strickland. Viewing the facts as the defense lawyer would have at the time, knowing the prosecutor would use material from the file, it should have been reviewed. This would have disclosed leads to further investigation in preparation for the penalty phase of a capital trial.

Florida v. Nixon (2004), 125 S.Ct. 551 -- Without the express consent of an unresponsive client, counsel conceded guilt at the initial phase of a capital trial, hoping to later avoid a death verdict. In such circumstances this was not ineffective assistance of counsel per se. In a non-capital case it should be a closer question.

State v. Brown, 115 Ohio St. 3d 55, 2007-Ohio-4837 -- In a capital case it was disputed whether a marriage existed between the defendant and the only eyewitness. Counsel was ineffective for not requesting the judge formally decide whether a marriage existed, and if it did, proceeding to have the wife advised pursuant to Evid. R. 601 that she was not competent to testify until she made a deliberate choice to do so.

State v. Yates, 166 Ohio App. 3d 19, 2006-Ohio-1424 -- Counsel failed to file a written motion to suppress and was rebuffed in effort to do so orally on the trial date. Since the motion would have been successful based on the arresting officers testimony at trial, defendant was rendered ineffective assistance of counsel.

State v. Persons, Meigs App. No. 02CA6, 2003-Ohio-4213 -- Prosecutor, defense counsel and judge all mistakenly believed a defendant given five years in consecutive sentences could be granted judicial release after serving two years. In fact he had to serve four. Pleas were not knowingly and voluntarily entered due to defense counsel's erroneous legal advice. Reversed for ineffective assistance of counsel.

State v. Burke, Franklin App. No. 03AP-1241, 2004-Ohio-6519 -- In a death penalty case, appellate counsel was ineffective by waiting five years to file a motion for a new trial as suggested by both the trial court and the court of appeals during earlier proceedings. Because the omission was counsel's, and the outcome would likely have been different otherwise, the trial court erred in dismissing the motion based on unacceptable delay.

State v. Hatt (2000), 140 Ohio App. 3d 694 -- Ineffective assistance found in counsel's efforts at a bench trial of an OMVI-impaired driving case. Hospital records showed no alcohol in blood. Counsel asserted privilege to keep prosecutor from using report, then failed to introduce the results himself. Counsel also failed to have the court address a not guilty by insanity plea or competency motion.

State v. Goldson (2000), 138 Ohio App. 3d 848 -- Counsel was ineffective by revealing GSI defendant's prior sex offense conviction in an ill-conceived effort to suggest retribution by the mother of the child victim. "Had the jury not heard evidence that Goldson was on probation for gross sexual imposition of a child at the time this offense allegedly occurred, the jury may well have weighed the credibility of the witnesses differently."

State v. Atalla, 157 Ohio App. 3d 698, 2004-Ohio-3414 -- Defense counsel failed to object to questions suggesting that if jurors could not be impartial to the perpetrators of the 9-11 attacks they could not be impartial to the defendant, then asked his own questions following that theme. Conviction reversed based on ineffective assistance of counsel.

State v. Hensley, Lucas App. No. L-03-1005, 2005-Ohio-664 -- Ineffective assistance of counsel not to object when an officer was asked whether he believed a third-party confession was believable.

State v. Ikharo, Franklin App. No. 02AP-632, 2003-Ohio-2319 -- In opening counsel promised the defendant would testify to certain matters and revealed his prior gross sexual imposition and pornography convictions. It was ineffective assistance of counsel to reveal the prior convictions then not call the defendant. The rest of the evidence was not strong enough to overcome the effects of counsel's deficient performance.

State v. White (1999), 135 Ohio App. 3d 481, 492 -- As to claim counsel was ineffective by not putting on character witnesses: "Defendant was no Ozzie Nelson. Counsel did not perform deficiently by recognizing this fact."

State v. Armstead (2000), 138 Ohio App. 3d 866 -- Guilty plea was entered after defense witnesses were excluded due to failure to provide reciprocal discovery. Court was obliged to conduct a hearing on motion to withdraw guilty plea made before sentencing. Ineffective assistance of counsel may have rendered plea less than knowing and voluntary.

State v. Huff (2001), 145 Ohio App. 3d 555 -- Multiple instances of ineptitude, including failures to object and impeach, amounted to denial of effective assistance of counsel.

State v. Carter 93 Ohio St. 3d 581, 2001-Ohio-1614 -- Previous counsel's failure to appeal denial of first App. R. 26(B) application to reopen to the Supreme Court was not ineffective assistance of counsel since there was no constitutional right to the assistance of counsel in such circumstances.

State v. Glavic (2001), 143 Ohio App. 3d 583 -- Counsel was not ineffective by failing to request a presentence investigation where plea negotiations resulted in a joint recommendation as to the prison sentence to be imposed.

State v. King, 151 Ohio App. 3d 346, 2003-Ohio-208 -- Defendant claimed he asked a Department of Job and Family Services worker if he had to report benefit checks for his daughter as his income and was incorrectly told he did not. Ineffective assistance of counsel not to request instruction on mistake.

State v. Leonard, Lucas App. No. L-01-1420, 2003-Ohio-3100 -- Plain error found in failure to give accomplice testimony instruction. Failure to request instruction amounts to ineffective assistance of counsel.

State v. Blair, 171 Ohio App. 3d 702, 2007-Ohio-2417 -- As to the advisability of standing moot when a continuance has been denied and the trial goes forward, in this instance the defendant is deemed to have received ineffective assistance of counsel, but the trial court is faulted for not addressing the defendant personally regarding his options or sanctioning counsel or the public defender office he worked for.

State v. Emory (1983), 12 Ohio App. 3d 41 -- Defendant received ineffective assistance of counsel when original attorney was injured in an auto accident and substitute counsel was forced to proceed to trial with little time for preparation after the court denied a continuance.

State v. Underdown (1997), 124 Ohio App. 3d 675 -- Reversal based on ineffective assistance of counsel where: (1) Counsel was present during the defendant's videotaped interrogation by the police, during which he referred to client's explanation of events as bullshit, looked incredulously at him and urged him to tell the truth. (2) Counsel further cast doubt on the defendant's credibility during opening statements. (3) Counsel requested a jury instruction on self-defense instead of accident. (4) Counsel failed to pursue the possibility that a third party was responsible for the victim's death.

State v. Biggers (1997), 118 Ohio App. 3d 788 -- Reversal based on ineffective assistance of counsel where (1) counsel admitted lack of preparation, (2) a discovery violation resulted in defense witnesses being excluded, (3) counsel failed to show up on one trial date, and (4) counsel did not file pretrial motions or make arrangements for a requested jury view.

State v. Goodwin (1999), 84 Ohio St. 3d 331, 334-339 -- Concession of guilt is a troubling tactic, but whether it represents ineffective assistance of counsel requires consideration of all the facts, circumstances and evidence.

State v. Black (1997), 124 Ohio App. 3d 419 -- Ineffective assistance of counsel was rendered where counsel neglected to request an instruction on minor misdemeanor drug abuse as a lesser included offense to trafficking in marijuana, though the evidence warranted such an instruction. Counsel also improperly allowed prior offense of violence specification to be tried to the jury. Defendant did not testify, so prior conviction could not have been used for impeachment. Even if he had, it was beyond the 10 year limit of Evid. R. 609(B).

State v. Tenace (1997), 121 Ohio App. 3d 702 -- Death penalty defendant wanted to pursue NGRI plea premised on cocaine addiction. Over his objection, counsel withdrew the plea. As the decision was ultimately the defendant's to make, he received ineffective assistance of counsel.

In re Terrance P. (1998), 129 Ohio App. 418 -- When juvenile's responses indicated possible lack of understanding of the rights being waived, defense counsel took over inquiry, securing damaging admissions. Reversed as ineffective assistance of counsel.

State v. Payton (1997), 119 Ohio App. 3d 694, 703- -- Defendant received ineffective assistance of counsel based on failure to challenge by motion or otherwise the competency of the four year old victim or the determination that she could testify in a videotaped deposition. Counsel also failed to challenge the admissibility of the defendant's own statements to the police.

State v. Yarber (1995), 102 Ohio App. 3d 185, 188-189 -- Reversal based upon the following instances of ineffective assistance: (1) failure to file motion to suppress statements by an illiterate client, (2) numerous failures to object to leading and repetitive questions, (3) cross-examination serving to enhance the victim's credibility, (4) failure to institute a legitimate trial strategy, (5) failure to pursue inconsistencies in victim's account, (6) blundering cross examination allowing introduction of testimony prosecutor had been warned not to elicit, and (7) general confusion through course of the trial.

Kimmelman v. Morrison (1986), 477 U.S. 365, 383-387 -- Failure to file a suppression motion may constitute ineffective assistance of counsel. For the burden of so proving see State v. Lott (1990), 51 Ohio St. 3d 160, 174-176; State v. Santana (2001), 90 Ohio St. 3d 513.

State v. Arvanitis (1986), 36 Ohio App. 3d 213 -- Headnote: "Whether defense counsel's failure to advise an alien defendant of the deportation consequences of a guilty plea results in an involuntary plea or can be grounds for showing ineffective assistance of counsel is to be determined on a case-by-case basis."

State v. Reese (1982), 8 Ohio App. 3d 202 -- Headnote: "The mere failure to subpoena witnesses for trial is not a substantial violation of defense counsel's essential duty to his client in the absence of any showing that the testimony of any one or more of the witnesses would have assisted the defense to the indictment."

State v. Longo (1982), 4 Ohio App. 3d 136 -- Defendant did not receive ineffective assistance of counsel merely because his prediction that the defendant would receive probation was mistaken.

State v. Amyx (1988), 55 Ohio App. 3d 54 -- Headnote 1: "In a rape prosecution, the selection of a jury composed of eight females and four males does not, standing alone, substantiate a claim of ineffective assistance of counsel raised by a male defendant on the theory that female jurors are more likely to convict than are male jurors."

State v. Strutton (1988), 62 Ohio App. 3d 248 -- A defendant is denied effective assistance of counsel where counsel refuses to act on a request that guilty pleas be withdrawn, when there is a not insubstantial possibility that withdrawal would have been allowed.

United States, ex rel. Caruso, v. Zelinski (3rd Cir. 1982), 689 F. 2d 435, 438 -- Counsel's failure to communicate plea offer to defendant was a gross deviation from accepted professional standards and may be the basis for a claim of ineffective assistance of counsel.

State v. Belcher (1993), 89 Ohio App. 3d 24 -- Failure to enter a Batson objection in a timely manner constituted ineffective assistance of counsel.

State v. Edwards (1997), 123 Ohio App. 3d 43 -- Without objection, several witnesses testified as to the credibility of the victim in a prosecution for child endangering. In view of State v. Boston (1989), 46 Ohio St. 3d 108, counsel's failure to object amounted to ineffective assistance of counsel.

State v. Jones (1996), 114 Ohio App. 3d 306, 316-320 -- Counsel's failure to object to expert's testimony that he believed child sex offense victim was truthful amounted to ineffective assistance of counsel. Measure of prejudice is not whether there was enough evidence otherwise to support the verdict. Instead "the essential inquiry is the capacity of the improper testimony to influence the jury's collective mind."

State v. Brown (1992), 84 Ohio App. 3d 414 -- Defendant received ineffective assistance of counsel where counsel failed to formally raise the issues of competency and sanity, or to examine the psychiatrist who had prepared an evaluation upon a court referral. Defendant later testified that he had no recollection of the incident leading to charges and that he spent time talking to his mother who he believed was buried at a gas station in Lakewood.

State v. Thompson (1994), 97 Ohio App. 3d 183 -- To preserve the issue for appeal, a speedy trial claim must be raised by motion prior to commencement of trial. Where counsel has failed to do so, defendant must demonstrate a reasonable possibility that the motion would have been sustained, had it been raised, in order to prevail on a claim of ineffective assistance of counsel.

State v. Nobles (1995), 106 Ohio App. 3d 246, 272-272 -- Defense counsel elected not to cross-examine 16 witnesses, based on a Hamilton County case [State v. Miller (1988), 56 Ohio App. 3d 130] holding cross-examination of a witness waives objection to that witness's testimony. This was done to protect a substantial corpus delicti issue. Though court tends to agree with a Franklin County case [State v. Farris (March 24, 1994) Franklin Co. App. No. 93APA08-1211, unreported (1994 Opinions 1248)], finding it contrary to common sense to force election between cross and waiver of challenge to testimony of a witness, it was not ineffective assistance of counsel to skip cross-examination on such basis.

State v. Owens (1992), 81 Ohio App. 3d 412, 416-417 -- After a continuance to contact an expert witness was refused, defense counsel stood mute during trial, which was held to be ineffective assistance of counsel: "A total abdication of duty should never be viewed as permissible trial strategy...Trial counsel's conduct at trial was reprehensible, but the error here lies not with the conduct of trial counsel but with the inaction of the court...The trial court erred when it failed to order counsel, under threat of contempt, to provide his client with effective representation."

State v. Clayton (1980), 62 Ohio St. 2d 45 -- Though the strategy may appear dubious in hindsight, failure to request instructions on lesser included offenses may be justified as trial strategy and was not ineffective assistance of counsel. Also see State v. Frazier (August 13, 1981), Franklin Co. App. No. 81AP-49, unreported (1981 Opinions 2462) -- Same conclusion as to disclosure of defendant's prior record where he did not testify.

State v. Henness (February 6, 1996), Franklin Co. App. No. 94APA02-240, unreported (1996 Opinions 304, 337) -- Trial court did not err in overruling counsel's motion to withdraw at the penalty phase of a death penalty trial. Counsel argued defendant's rejection of their plans to introduce evidence would render their representation ineffective. Defendant not granted relief from having "voluntarily chosen to make his counsel ineffective." Affirmed State v. Henness (1997), 79 Ohio St. 3d 53, 65-66.

State v. Johnson (1986), 24 Ohio St. 3d 87 -- Defendant in a death penalty case received ineffective assistance of counsel where there was no preparation for the penalty phase, which began shortly after the guilt phase concluded. While the failure to present mitigating evidence, by itself, does not conclusively establish ineffectiveness, when combined the failure to investigate the client's background and the "maladroit" presentation made, such a conclusion follows. Compare Darden v. Wainwright (1986), 477 U.S. 168.

State v. McGuire (1997) 80 Ohio St. 3d 390, 399 -- The hiring of a mitigation specialist in a death penalty case is not a requirement of effective assistance.

State v. Keith (1997), 79 Ohio St. 3d 514, 534 -- Retained counsel in a death penalty case is not presumed to be ineffective because he has not received the training appointed counsel must have to qualify for appointment under Superintendence Rule 20. Also see State v. Getsy (1998), 84 Ohio St. 3d 180, 185-186.

State v. Williams (1989), 52 Ohio App. 3d 19 -- By itself, the fact that an attorney was under a federal indictment for drug abuse, does not establish his clients received ineffective assistance of counsel.

State v. Allen (1997), 121 Ohio App. 3d 666 -- Representation by an attorney under suspension at the preliminary hearing did not mean defendant received ineffective assistance of counsel.

Evitts v. Lucey (1985), 469 U.S. 387 -- Right to counsel on appeal includes the right to effective assistance. But see Jones v. Barnes (1983), 463 U.S. 745 -- Counsel appointed to prosecute an appeal from a criminal conviction does not have a duty to pursue every non-frivolous issue the client wishes to raise.

State v. Miller (1988), 44 Ohio App. 3d 42 -- Headnote 1: "On a first appeal as a matter of right, if a timely notice of appeal has been filed and appellant's counsel fails to file a brief...and his appeal is dismissed, appellant has not had the effective assistance of an attorney.

State v. Murnahan (1992), 63 Ohio St. 3d 60 -- Syllabus: "Claims of ineffective assistance of appellate counsel are not cognizable in post-conviction proceedings pursuant to R.C. 2953.21. (2) Claims of ineffective assistance of appellate counsel may be raised in an application for reconsideration in the court of appeals or in a direct appeal to the Supreme Court pursuant to Section 2(B)(2)(a)(iii), Article IV of the Ohio Constitution. (In re Petition of Brown [1990], 49 Ohio St. 3d 222, 223...Manning v. Alexander [1990], 50 Ohio St. 3d 127...followed.) (3) Where the time period for reconsideration in the court of appeals and direct appeal to the Supreme Court has expired, a delayed claim of ineffective assistance of appellate counsel must first be brought in an application for delayed reconsideration in the court of appeals where the alleged error took place, pursuant to App. R. 26 and 14(B), and if delayed reconsideration is denied then the defendant may file for delayed appeal in the Supreme Court, pursuant to Section 8, Rule II of the Rules of Practice of the Supreme Court." See App. R. 26(B).

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Unhappy campers and the right to self-representation

Indiana v. Edwards (2008), 128 S.Ct. 2379 – An individual may be competent to stand trial but not competent to undertake self-representation. Court approves state court requirement of representation by an attorney in such circumstances.

State v. Engle, 183 Ohio App. 3d 488, 2009-Ohio-1944 – Defendant claimed five years of college, 40,000 hours of legal research, and had represented himself in 1993. Nonetheless waiver colloquy was inadequate as the court failed to assure the defendant had an apprehension of the nature of the charges, the statutory offenses included within them, allowable punishments, mitigating circumstances and possible defenses.

State v. Packer, 188 Ohio App. 3d 162, 2010-Ohio-2627 – Shortly before trial the defendant began taking new medications prescribed by a physician to treat his mental health problems. At trial he was to represent himself, assisted by standby counsel. He requested a continuance based on how he was affected by the new medications, but this was denied. He exhibited difficulties as trial got underway, then did not return, and was found guilty in absentia. Reversed. Starting the new medications did not constitute voluntary incapacitation. A pro se defendant is entitled to the same consideration as counsel when requesting a continuance based on illness.

Cleveland v. English, 175 Ohio App. 3d 458, 2008-Ohio-321 – Defendant was on his third attorney, whom he wished to discharge on the day of trial. He was adamant both that counsel was unprepared and that he did not wish to represent himself. The exchange between the judge and the defendant did not effect an effective waiver of the constitutional right to counsel. As quoted, the ultimatum is presented but there is no advice on the risks of self-representation, nature of the charges, possible defenses, and range of punishments.

State v. Litten, 174 Ohio App. 3d 743, 2008-Ohio-313 – Defendant appeared to want to represent himself but was erratic in the courtroom, believing the criminal rules related to admiralty jurisdiction, that the Uniform Commercial Code applied in drug cases, and that he was not the person named in the indictment because his name was capitalized. He refused to sign a waiver of his right to counsel. The judge recused himself and there was no waiver of counsel when the case proceeded to trial with another judge presiding. In the appellate court‘s view the defendant and his legal advisor acted as co-counsel at trial, which is forbidden under Ohio law. Reversed. See State v. Martin, 103 Ohio St. 3d 385, 2004-Ohio-5471, ¶29-36.

State v. Johnson, 179 Ohio App. 3d 151, 2008-Ohio-5769 – Defendant was back in court following a State v. Foster remand and was unhappy that trial counsel, who he believed to have been ineffective, was there to represent him. The court blew off his complaints, stating "whether you have this man or any other attorney isn‘t going to have anything to do with the resentencing," and proceeded to resentence. Reversed. ¶46: "We find this reasoning baffling. If the sentence is mandatory, it presumably does not matter what attorney stands beside the defendant, Elmer Fudd or Clarence Darrow. When the court is about to exercise discretion, that is when the assistance of counsel is arguably the most crucial."

State v. Reese, 106 Ohio St. 3d 65, 2005-Ohio-3806 -- The manner in which R.C. 2945.05 ensures the right to consult with counsel before waiving the right to jury trial does not infringe upon the right to self-representation.

State v. Martin, 103 Ohio St. 3d 385, 2004-Ohio-5471 -- Syllabus: "(1) In Ohio, a criminal defendant has the right to representation by counsel or to proceed pro se with the assistance of standby counsel. However, these two rights are independent of each other and may not be asserted simultaneously. (Paren v. State [1987], 309 Md. 260, 269, 523 A.2d 597, followed.) (2) In the case of a 'serious offense' as defined by Crim. R. 2(C), when a criminal defendant elects to proceed pro se, the court must determine 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." Compare State v. Johnson, 112 Ohio St. 3d 210, 2006-Ohio-6404, ¶79-106 where the waiver, though defective, came mid-trial.

State v. Cassano, 96 Ohio St. 3d 94, 2002-Ohio-3751, ¶31-42 -- A demand for self-representation must be timely, explicit and unequivocal. There is no right to act as co-counsel.

State v. Steele, 155 Ohio App. 3d 659, 2003-Ohio-7103 -- Earlier talk of self-representation construed as expression of dissatisfaction with counsel, not an unequivocal demand for self-representation. Defendant accepted representation by new counsel. Request for self-representation on the day of trial was untimely.

State v. Smith, Hamilton App. No. C-020610, 2004-Ohio-250 -- Notwithstanding the Rules of Superintendence with regard to the appointment of counsel in capital cases, the accused has the right to self-representation. Reversed where defendant's demand was unequivocal, yet the court determined counsel would actively participate at trial rather than serving merely in an advisory capacity.

State v. Vrabel, 99 Ohio St. 3d 184, 2003-Ohio-3193, ¶ 49 -- While denial of the right to self-representation, properly invoked, is per se reversible error, see-sawing back and forth between seeking self-representation and representation by counsel was not a proper invocation.

State v. Taylor, 98 Ohio St. 3d 27, 2002-Ohio-7017 -- ¶40-53: Capital defendant eager to get his trial over with and to be sentenced to death deemed never to have made a demand new counsel be appointed. He wished to be able to question witnesses, there is no right to act as co-counsel, and the court acceded to his request he represent himself. Though competency was an issue, and the court acknowledges self-representation was a bad idea, there was a understanding, knowing and voluntary waiver of the right to counsel. ¶83: "The constitutional right to represent oneself would become a hollow right and its assertion would most likely be rejected with regularity if pro se defendants were permitted to assign as error their own ineffectiveness."

State v. Gordon, 149 Ohio App. 3d 237, 2002-Ohio-2761, ¶12 -- "Competent representation does not include the right to develop and share a 'meaningful attorney-client relationship' with one's attorney. Hostility, tension, or personal conflicts between an attorney and a client that do not interfere with the preparation or presentation of a competent defense are insufficient to justify a change in appointed counsel." (Footnotes omitted.) However, guilty plea held involuntary based on defendant's assertion it was preferable to proceeding to trial with attorney he lacked confidence in.  Also see State v. Ketterer, 111 Ohio St. 3d 70. 2006-Ohio-5283, ¶100-102.

State v. Jackson (2001), 145 Ohio App. 3d 223 -- Defendant was unhappy with second round of appointed counsel and told the judge he would like to waive his right to counsel. He was told he could do so, but when the case came up for trial later on, the defendant appeared taken by surprise. Public Defender remained at the table during the trial. Reversed. Court did not ascertain waiver was made with an understanding of the right to counsel, the nature of the charges and of possible defenses. At. p. 229: "Nothing in the record suggests that defendant knew the consequences of acting on his own behalf, and the transcript shows that the court terminated the hearing while defendant still had questions, leaving those questions unanswered."

State v. Clark, Hamilton App. No. C-020550, 2003-Ohio-2669 -- Court failed to adequately inquire into cause of dissatisfaction when defendant asked for new counsel at a resentencing hearing.

Faretta v. California (1974), 422 U.S. 806 -- The Sixth Amendment guarantees a criminal defendant the right to self-representation at trial. Also see State v. Gibson (1976), 45 Ohio St. 2d 366.

Martinez v. Court of Appeal of California (2000), 120 S.Ct. 684 -- The right to self-representation at the trial level does not extend to appeals. Neither the Sixth Amendment not the Due Process Clause of the Fourteenth provide a right to self-representation, though state constitutions may be interpreted to do so. Faretta v. California (1974), 422 U.S. 806, distinguished.

State v. Watson (1998), 132 Ohio App. 3d 57 -- Defendant plainly stated he preferred to represent himself. No conflicts with counsel are described in the opinion. Judge refused to allow self-representation. Reversed.

State v. King (1995), 104 Ohio App. 3d 434 -- Whether raised by written motion or in open court, if a defendant questions the effectiveness of assigned counsel, the court must inquire, on the record, into the merits of the complaint.

State v. Carter (1999), 128 Ohio App. 3d 419 -- Defendant's claims that counsel had lied, refused to cooperate, and worked on the state's behalf against him required further inquiry. Guilty plea rested on court's refusal to appoint new counsel. Reversed.

Caraway v. Beto (5th Cir. 1970), 421 F. 2d 636, 637 -- When the defendant has expressed reservations concerning the preparation of counsel for trial inquiry from the bench should address the number of times the defendant and counsel met before trial, the duration of such meetings, the degree to which discussions addressed defenses, trial strategy and preparation, or only the desirability of pleading guilty, and there should be inquiry as to counsel's investigation of the case and efforts to secure witnesses. Also see State v. Deal (1969), 17 Ohio St. 2d 17; State v. VanMeter (July 11, 1985), Franklin Co. App. No. 84AP-987, unreported (1985 Opinions 2062).

State v. McQueen (1997), 124 Ohio App. 3d 444 -- Minimal inquiry from the bench into a defendant's desire to represent himself will not suffice. The court must stress the benefit of counsel's experience and make sure that the defendant is fully apprised of the nature of the charges and potential defenses. Court further finds that the court's treatment of the unrepresented defendant as the trial proceeded denied him a fair trial.

Nix v. Whiteside (1986), 475 U.S. 157 -- The Sixth Amendment right to counsel is not violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at trial.

Morris v. Slappy (1982), 461 U.S. 1 -- The Sixth Amendment does not guarantee a meaningful attorney-client relationship.

Glasser v. United States (1942), 315 U.S. 60 -- Requiring an attorney to represent codefendants whose interests are in conflict is a denial of the right to effective assistance of counsel. Also see Holloway v. Arkansas (1978), 435 U.S. 475 which goes further and holds this to be a denial of the right to counsel, per se, and not just a denial of effective assistance.

Cuyler v. Sullivan (1980), 446 U.S. 335 -- Unless a defendant has been denied the opportunity to object to multiple representation, on collateral review he must demonstrate that an actual conflict of interest denied him effective representation.

Burger v. Kemp (1987), 483 U.S. 776 -- No per se conflict of interest where law partners represented codefendants in separate trials and the same attorney prepared appellate briefs in both cases. Situation by itself does not support claim of ineffective assistance of counsel.

State v. Pruitt (1984), 18 Ohio App. 3d 50, 57 -- Forcing a defendant to proceed at trial when there is a conflict of interest with counsel, or there has been a breakdown in communication or an irreconcilable conflict is a denial of the Sixth Amendment right to counsel.

State v. Coleman (1988), 37 Ohio St. 3d 286 -- Paragraph four of the syllabus: "To discharge a court-appointed attorney, the defendant must show a breakdown in the attorney client relationship of such magnitude as to jeopardize the defendant's right to the effective assistance of counsel."

State v. Williams (1997), 123 Ohio App. 3d 233 -- Attorney was summarily found in contempt when he refused to go forward with trial following what he characterized as a breakdown in the attorney client relationship. Otherwise, he felt prepared to proceed, and there was to be a joint trial with a codefendant. Because the court was on notice that counsel was placed in an ethical dilemma and the client's constitutional rights were at stake, the court was required to conduct a careful and in-depth review of all the facts and circumstances.

State v. Dukes (1986), 34 Ohio App. 3d 263 -- Trial court abused its discretion by not allowing withdrawal of retained counsel requested two weeks before trial.

State v. Hook (1986), 33 Ohio App. 3d 101 -- No abuse of discretion found in forcing defendant to go to trial pro se when appears without counsel on date of trial and requested continuance to secure counsel. Also see State v. Wagner (1993), 88 Ohio App. 3d 27; State v. Crebs (1987), 42 Ohio App. 3d 50. Compare State v. Roseman (1981), 3 Ohio App. 3d 272 -- Failure to comply with Crim. R. 44(B) when defendant appeared unrepresented and does not waive counsel precluded jail time after case was forced to trial resulting in conviction.

State v. Butler (1994), 97 Ohio App. 3d 322 -- No abuse of discretion found in conditioning continuance on pro se defendant's agreement to employ appointed counsel in his defense. When previous counsel was discharged, defendant had indicated he was prepared to proceed on his own.

State v. Weiss (1993), 92 Ohio App. 3d 681 -- Even when it appears that the defendant's repeated appearances without counsel were a delaying tactic, the court was required to conduct an inquiry to make sure he is aware of the importance of having counsel and the risks of proceeding unrepresented.

State v. Glasure (1999), 132 Ohio App. 3d 227 -- Defendant made pro se filings and was generally uncooperative with appointed counsel and the court. Nonetheless, the court failed to sufficiently inquire into his ability to hire counsel before determining that he had effectively waived his right to counsel.

State v, Thompson (1987), 33 Ohio St. 3d 1, 6-7 -- Defendant does not have a right to appear as co-counsel. Also see State v. Carter (1977), 53 Ohio App. 2d 125; State v. Baldwin (August 3, 1982), Franklin Co. App. No. 82AP-139, unreported (1982 Opinions 2345).

State v. Edsall (1996), 113 Ohio App. 3d 337 -- Criminal Rules do not cover situation where defendant rejects appointed counsel, but does not agree to waive counsel and proceed pro se. Court finds no Sixth Amendment violation where brief continuance was allowed to afford opportunity to retain counsel, and appointed counsel remained on standby.

Wiggins v. Estelle (5th Cir. 1982), 681 F. 2d 266 -- While court may appoint standby counsel to act in an advisory capacity, even over the objection of the defendant, unwanted interference by standby counsel may deny the defendant his Sixth Amendment right to self-representation. But see McKaskle v. Wiggins (1984), 465 U.S. 168.

State v. Marinchek (1983), 9 Ohio App. 3d 22 -- It is the trial court's duty to balance the defendant's right to counsel of his preferential choosing against the public interest in the administration of justice. See 73 A.L.R. 3d 725.

United States v. Peister (10th Cir. 1980), 631 F. 2d 658, 661 -- There is no absolute right to counsel of one's choice. Also see Thurston v. Maxwell (1965), 3 Ohio St. 2d 92; United States v. Sexton (5th Cir. 1773), 473 F. 2d 512; United States v. White (6th Cir. 1971), 451 F.2d 1225; Lofton v. Procunier (9th Cir. 1973), 487 F. 2d 434; United States v. Hampton (7th Cir. 1972), 457 F. 2d 299.

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