Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
DEFENDERS AND APPOINTED COUNSEL
Also see Indigency;
Counsel, Right To; Attorney-Client Relationship.
Revised Code Chapter 120.
Vermont v. Brisson
(2009), 129 S.Ct. 1283 – Defendant went through six attorneys during the three
years before he was brought to trial. Applying Barker v.
Wingo the Vermont Supreme Court held he had been denied his
constitutional right to a speedy trial. Reversed. The Vermont Court improperly
found delays occasioned by counsel were chargeable against the state. Whether
retained or appointed, defense counsel acts as the agent of the defendant. Only
a systemic breakdown in a public defender system might count against the state.
Cargile, 121 Ohio St. 3d 1208,
2009-Ohio-477 – Supreme Court Rule of Practice XIV(2)(A)(3)
requires that in felony cases the prosecutor serve a copy of the
notice of appeal or certified conflict order on the Ohio Public
Defender. State P.D.‘s motion to dismiss is denied, but county
prosecutor must now make required service and the Public
Defender may file an amicus brief. Also see State v. Lester, 121 Ohio St. 3d 1209,
2009-Ohio-478; State v. Rohrbaugh,
121 Ohio St. 3d 1210,
Owens, 123 Ohio State 3d 1204,
2009-Ohio-4086 – On motion of the Ohio Public Defender the
state‘s notice of appeal is stricken for failure to serve a copy
of the notice of appeal on the Ohio Public Defender as required
by Supreme Court Practice Rule XIV(2)(A)(3). Below the defendant
was represented by counsel and successfully had his sentence
vacated because of delay in bringing him to court for
sentencing. State v. Owens, 181 Ohio
App. 3d 725,
State ex rel Triplett v.
Ross, 111 Ohio St. 3d 231,
2006-Ohio-4705 -- In relation to the Ohio Patriot Act, writ of prohibition
is granted relieving counsel making less than $100,000 per year from municipal
court appointments of the obligation to complete a form inquiring as to ties to
groups on the State Department's Terrorist Exclusion List. ¶56: Legal
representation does not constitute 'material support or resources' for purposes
of the Ohio Patriot Act.
State ex rel. Holloman, 100 Ohio St. 70,
2003-Ohio-5063 -- Client brought a mandamus action to compel appointed counsel
to furnish an affidavit specifying a potential plea bargain had been put on the
table at a pretrial conference. Action properly dismissed. "...(N)either
120.16(A) and (B) nor EC 7-7 imposes any legal duty on an appointed attorney to
swear to a false affidavit."
State ex rel. Felson v. McHenry, 146
Ohio App. 3d 542,
2001-Ohio-4265 -- Attorneys accepting court-appointments
brought mandamus action against county public defender commission and county
commissioners seeking adequate fee schedule. Attorneys did not have standing to
bring claims based on denial of their clients' rights, or to sue the public
defender commission, but do have a viable claim against the county commissioners
who are under a statutory obligation to establish a fee schedule comparable to
fees paid to retained counsel in the same type of cases. Also see State ex
rel. Felson v. McHenry, Hamilton App. No. C-020001,
State ex rel. Felson v. McHenry, 158 Ohio App. 3d 81,
ultimately denies any relief, though noting petitioners did not pursue avenues
opened to them.
Lager v. Pittman (2000), 140 Ohio App. 3d
227 -- County public defender brought prohibition action to prevent enforcement
of a municipal court judge's order that his office undertake indigency
determination at the time of the initial appearance. Writ granted, because
Chapter 120 gives the public defender discretion as to when this determination
is made, and this takes precedence over a court order or local rule. But if the
public defender elects to delay the determination, he is obliged to provide
provisional representation, and may ultimately be subject to a court order or
contempt in the event of unjustified delay.
State ex rel. Bradley v. Stralaka (1999),
134 Ohio App. 3d 256 -- At arraignment defendant said Bradley was his attorney.
When the attorney received notice of the trial date he wrote to judge stating
this was not the case. Judge appointed lawyer. Lawyer again wrote to say under
no circumstances would he represent defendant. Judge initiated contempt
proceedings. Lawyer sought writ of prohibition, which was granted. (1) Because
lawyer never made an appearance on defendant's behalf, court lacked jurisdiction
over lawyer for purposes of contempt proceedings. Prior representation in a
different court on an unrelated matter, from which counsel had been allowed to
withdraw did not make him counsel. (2) State ex rel. Mancino v. Campbell
(1993), 66 Ohio St. 3d 217 distinguished on the basis that the lawyer there had
made an appearance on defendant's behalf.
State v. Campbell (1999), 132 Ohio App. 3d
880, 886 -- According to the concurring opinion: "While the record suggests that
at least the trial court had previously made some preliminary determination of
indigency sufficient to refer appellant to the public defender's office, the
court may not abdicate its responsibility for a full inquiry by a simple
referral. And furthermore, when a defendant appears at the next hearing without
counsel, the court may not simply rely on its prior referral as a discharge of
this duty to afford counsel. Many factors, other than simple indigency, may
impinge upon a defendant's inability to obtain counsel, factors that may differ
greatly from cases to case."
State v. Gregley (1999), 133 Ohio App. 3d
627 -- One of two attorneys appointed in a capital case was not Rule 20
certified. Trial court refused to pay uncertified counsel and paid certified
counsel less than the amount he claimed was due. Held to be an abuse of
discretion to reduce payment to certified counsel who was unaware co-counsel was
State v. Crenshaw (2001), 145 Ohio App. 3d
86 -- Judge angry at the outcome of a trial ordered misdemeanant to pay $1000 as
a fine covering the cost of appointed counsel. (1)
R.C. 2941.51 does not
authorize assessment of attorney fees as a part of sentence. (2) Fine in
addition to jail time is not specifically adapted to deterrence of the offense
or correction of an indigent offender. (3) Fines go into the county treasury.
There is no means for reimbursing the state Public Defender as there is with
civil recoupment of fees under
State v. Cooper, 147 Ohio App. 3d 116,
2002-Ohio-617, ¶66-72 -- Court erroneously ordered payment of attorney fees in
entry without determining on the record that defendant was able to pay or could
reasonably be expected to do so.
Disciplinary Counsel v. Agopian, 112 Ohio St. 3d 103,
2006-Ohio-6510 -- Public reprimand to attorney who on the
weekend reconstructed hours billed for serving as appointed
counsel, sometimes indicating more hours worked in a day that
credible. Accounting practices are faulted, but the court finds
no dishonest motive since he worked at least as many hours on
each case and billed against a low cap. Compare
Disciplinary Counsel v. Johnson, 106
Ohio St. 3d 365,
2005-Ohio-5323; Disciplinary Counsel v.
Holland, 106 Ohio St. 3d 372,
Disciplinary Counsel v. Grove (2000), 90
Ohio St. 3d 312 -- Public reprimand to public defender who elected not to notify
twelve clients of appeals taken by the prosecutor, and who failed to file briefs
in those cases.
Legal Services Corporation v. Velazquez
(2001), 121 S.Ct. 1043 -- Legal Services Corporation funding restrictions
prohibiting local recipients of LSC funds from providing representation in
efforts to amend or challenge existing welfare laws held to violate the First
Ohio Civil Service Employees Association,
AFSCME Local 11, AFL-CO v. State Employment Relations Board
(2001), 144 Ohio App. 3d 96 -- Non-supervisory attorneys employed by the Ohio
Public Defender do not serve in a fiduciary capacity, and, thus, are "public
employees" eligible to join a collective bargaining unit.
Wooden v. Kentner, 153 Ohio App. 3d 24,
2003-Ohio-2695 -- Summary judgment properly granted in a malpractice action
against a public defender office and two employees. Public defenders are engaged
in a governmental function and are immune from liability unless an exception to
the general grant exists. Such an exception might arise pursuant to former
2744.02(B)(4) pertaining to negligence on premises used in the performance of a
public function. But that statute has been amended to now cover only physical
defects in a building. Under the former version, the defense existed that the
acts complained of were within the discretion of an employee. That applies to
the efforts of an attorney. In this action there was no claim immunity was
pierced by acts beyond the scope of employment, malice or statutory exception.
Also see Thorp v. Strigari, Hamilton App. No. C-0301193,
which addresses an equal protection attack on the immunity statute.
Polk County v. Dodson (1981), 454 U.S. 312
-- A 42 U.S.C. Sec. 1983 (civil rights) action does not lie against a public
defender, since a public defender does not act under color of state law while
performing a lawyer's traditional functions as counsel to a defendant in
Ferri v. Ackerman (1979), 444 U.S. 193 --
Appointed defense counsel in a criminal case in federal court is not immune from
liability for malpractice. At p. 204: "[T]he primary office performed by
appointed counsel parallels the office of privately retained counsel. Although
it is true that appointed counsel serves pursuant to statutory authorization and
in furtherance of the federal interest in insuring effective representation of
criminal defendants, his duty is not to the public at large, except in that
general way. His principal responsibility is to serve the undivided interests of
his client. Indeed, an indispensable element of the effective performance of his
responsibilities is the ability to act independently of the government and to
oppose it in adversary litigation."
Branti v. Finkel (1980), 445 U.S. 507 --
An assistant public defender who is satisfactorily performing his duties may not
be discharged for his political beliefs. Newly appointed county public defender,
who was a Democrat, had discharged all of the Republicans on his staff. Also see
Elrod v. Burns
(1976), 427 U.S. 347. The only exception would be if the assistant was involved
in a confidential or policy making position where party affiliation is an
appropriate requirement for the effective performance of the public office
State, ex rel. Kura, v. Sheward (1992), 75
Ohio App. 3d 244 -- Once the county public defender has been appointed to
undertake representation the court may not replace the public defender as
counsel against the wishes of both the defendant and the public defender.
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
liberty. Also see McKinney v. McClure (1995), 102 Ohio App. 3d 165.
State v. Crowder (1991), 60 Ohio St. 3d
151 -- Paragraph one of the syllabus: "Although an indigent petitioner does not
have a state or federal constitutional right to representation by an attorney in
a post-conviction proceeding, the petitioner, pursuant to
R.C. 120.16(A)(1) and
(D), is entitled to representation by a public defender at such a proceeding if
the public defender concludes that the issues raised by the petitioner have
State, ex rel. McMinn, v. Ohio Public Defender
(1985), 26 Ohio App. 3d 16 -- Mandamus does not lie to compel the Ohio Public
Defender to provide representation in a post-conviction action where, pursuant
to R.C. 120.06(B), the public defender has determined that the case lacks
arguable merit. Also see State, ex rel. Pierce, v. Court of Common Pleas
(1986), 25 Ohio St. 3d 27.
State v. Lentz (1994), 70 Ohio St. 3d 527
-- Syllabus: "When a criminal defendant is represented by two different
attorneys from the same public defender's office at trial and on direct appeal,
res judicata bars a claim of ineffective assistance of trial counsel raised
for the first time in a petition for postconviction relief when such claim could
have been made on direct appeal without resort to evidence beyond the record,
unless the defendant proves that an actual conflict of interest enjoined
appellate counsel from raising ineffective assistance of trial counsel on direct
State v. Wiles (1998), 126 Ohio App. 3d 71
-- Former P.D. went to work at the prosecutor's office, then later returned to
the P.D. office. It is presumed that he shared information with his colleagues
in the prosecutor's office which could have been used against a former death
penalty client in subsequent postconviction proceedings. A hearing was required
to rebut this presumption in response to a motion to disqualify the prosecutor's
office. See concurring opinion as to the applicability of Kala v. Aluminum
Smelting & Refining Co., Inc. (1998), 81 Ohio St. 3d 1 in these
Cincinnati Bar Association v. Nienaber
(1994), 68 Ohio St. 3d 459 -- Appointed counsel turned in expenses said to
relate to taking a deposition in Florida, which turned out to include the cost
of taking his wife and child along, then renting a car after the deposition and
driving to Disney World. He also claimed the time spent as Disney World as
billable hours. Six month suspension.
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, and 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. Golston (1990), 66 Ohio App. 3d
423 -- Error to order the Public Defender Office to bear the expense of the
defendant being brought to court for a forfeiture hearing.
In re Hinko (1992), 84 Ohio App. 3d 89, 95
-- In a juvenile case, the court characterized parents as "mooches" and "cheap"
before ordering them to pay the Public Defender Office for their son's
representation at the rate of $100 per hour. Held that this was improper without
first determining the actual value of the services rendered.
State v. Getsy (1998), 84 Ohio St. 3d 180,
185-186 -- Retained counsel in a death penalty case does not have to be Rule 20
qualified. This also applies to a contract public defender retained by the
defendant's father and not paid by the court. Also see State v. Keith
(1997), 79 Ohio St. 3d 514, 534.
State v. Misch (1995), 101 Ohio App. 3d
640, 650-651 -- When appointed counsel in a capital case are not certified
pursuant to C.R. Sup. Rule 20, there is no presumption that the did not provide
effective assistance. Determination must be made in accordance with Strickland v. Washington (1984), 466 U.S. 668. Court declines to decide
whether Rule 20 is applicable in prosecution of juveniles who have been bound
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. 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
Phillips v. Washington Legal Foundation
(1998), 524 U.S. 156 -- The interest income generated by funds held in an IOLTA
account is the private property of the owner of the principal. Court defers
addressing question whether there is a taking within the meaning of the Fifth
Amendment when such funds are put to use funding legal services for the poor.
State ex rel. Beacon Journal Publishing Co. v.
Bodiker (July 8, 1999), Franklin Co. App. No. 98AP-827, unreported (1999
Opinions 2015) -- The Ohio Public Defender is a public office within the
contemplation of the Public Records Act. Attorney time sheets, contracts, and
computer data bases with respect to a capital case are with few exceptions
subject to disclosure following execution.
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