Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
COUNSEL, RIGHT TO
Also see Indigency;
Admissions and Confessions; Attorney-Client
right to counsel in general
Right to counsel at various stages of investigation and 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
of Counsel for his defence." Same right guaranteed by Article I, Sec. 10, Ohio
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.
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
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
State v. Jones 91 Ohio St. 3d 335,
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
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
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.
Brooke, 113 Ohio St. 3d 199,
2007-Ohio-1533 -- Syllabus: "(1) For purposes of penalty
enhancement in later convictions under
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,
Westfall v. Cross (2001), 144 Ohio App. 3d
211 -- Unqualified denial of pro hac vice status is a final appealable
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
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
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
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
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
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
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
State v. McCoy, 188 Ohio App. 3d
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.
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.
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
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
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
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
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
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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State v. Thompson,
121 Ohio St. 3d 250,
2009-Ohio-314 – Syllabus: "For purposes of penalty enhancement in later
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.
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
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.
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
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
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,
State v. Pruitt, Lucas App. No.
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.
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
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.
State v. Harris, Erie App. No.
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.
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.
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
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
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
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
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.
Return to top of
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.
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.
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
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
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
120.06 to representation in prosecutions which could result in the loss of
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
Return to top of
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.
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.
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.
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
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
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
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."
Return to top of
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.
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
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.)
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.
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
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.
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.
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
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
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.
2005-Ohio-664 -- Ineffective assistance of counsel not to object when
an officer was asked whether he believed a third-party confession was
State v. Ikharo, Franklin App. No.
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.
2003-Ohio-3100 -- Plain error found in failure to give accomplice
testimony instruction. Failure to request instruction amounts to ineffective
assistance of counsel.
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
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
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
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.
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
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
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
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 , 49 Ohio St. 3d 222, 223...Manning v.
Alexander , 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.
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
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.
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.
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,
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 , 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.
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
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.
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
State v. Clark, Hamilton App. No.
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
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;
VanMeter (July 11, 1985), Franklin Co. App. No. 84AP-987, unreported (1985
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
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
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
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
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
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
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;
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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