Indigency

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
David L. Strait and the Franklin County Public Defender Office
 

Criminal Rule 44 -- Assignment of counsel.
Chapter 120, Ohio Revised Code -- Public Defenders.

Right to Appointed Counsel

State v. Williams, 173 Ohio App. 3d 556, 2007-Ohio-5672 – Defendant appeared for trial unrepresented and said he had not qualified for representation by a public defender. The judge had him sign a form filled in to indicate he waived his right to counsel because he could not afford to hire an attorney. Reversed. The court was obliged to fully inquire into the circumstances impinging upon a defendant‘s inability to secure counsel and the consequent need to provide appointed counsel. State v. Tymcio (1975), 42 Ohio St. 2d 39, followed.
 
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.
 
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 his request for appointed counsel. The court was obliged to inquire as to outstanding debts, obligations and liabilities as required by O.A.C. 120-1-03. (2) Court was required to obtain a recorded, oral waiver of the right to counsel. Written waiver was insufficient and failure to record proceedings does not permit conclusion Criminal Rules 22 and 44 were complied with.
 
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."
 
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.
 
In re Kindred, Licking App. No. 04 CA 7, 2004-Ohio-3647. ¶29 (Concurring opinion.) -- "I concur with the majority as to disposition of this case. I write separately only to make explicit what I find to be implicit in the majority's analysis. If non-indigent parents of a child refuse to provide counsel for that child and that child wants to be represented by counsel, that child is indigent and the court must appoint counsel. Any waiver of counsel by such child must be done with clear knowledge of what counsel can do for the child as well as the fact that counsel will be provided at no cost to the child."
 
Gideon v. Wainwright (1963), 372 U.S. 335 -- The right of an indigent defendant in a criminal case to have the assistance of counsel is a fundamental right guaranteed by the Sixth and Fourteenth Amendments.
 
Argersinger v. Hamlin (1972), 407 U.S. 25 -- An indigent's right to appointed counsel does not turn on whether the offense charged is a felony or a misdemeanor. Counsel must be furnished if the accused faces the loss of liberty.
 
Douglas v. California (1963), 372 U.S. 353 -- Indigent has a right to appointed counsel for direct appeal of conviction in state courts.
 
Ross v. Moffitt (1974), 417 U.S. 600 -- Right to appointed counsel does not extent to discretionary appeal to state supreme court. Also see Wainwright v. Torna (1982), 455 U.S. 586.
 
State v. Tymcio (1975), 42 Ohio St. 2d 39 -- Syllabus: "(1) The right of court-appointed counsel in a criminal case turns upon the inability to obtain counsel. The entitlement depends not upon whether the accused ought to be able to employ counsel, but whether he is in fact 'unable to employ counsel.' (2) A preliminary determination of indigency does not foreclose a redetermination of eligibility for assigned counsel when, at a subsequent stage of a criminal proceeding, new information concerning the ability or inability of the accused to obtain counsel becomes available. (3) It is the duty of the trial court in a criminal case to inquire fully into the circumstances impinging upon an accused's claimed inability to obtain counsel and his consequent need for assistance in employing counsel, or for the assistance of court-appointed counsel." Also see State v. Caulley (1999), 132 Ohio App. 3d 705.
 
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."
 
State v. Weaver (1988), 38 Ohio St. 3d 160 -- Syllabus: "The determination by an appellate court pursuant to R.C. 120.05 that a person is not indigent and thus not entitled to legal representation by the state public defender on appeal will not be reversed absent an abuse of discretion.
 
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 arguable merit."
 
State v. Barnes (1982), 7 Ohio App. 3d 83 -- Appointment of counsel is not required for the initial preparation of a petition for post conviction relief, however, if a hearing is required counsel must be appointed.
 
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.
 
Lassiter v. Dept. of Social Services (1981), 452 U.S. 18 -- Due process does not require the appointment of counsel for an indigent in every proceeding to terminate parental rights. The presumption that an indigent has a right to appointed counsel applies only when the loss of physical liberty is at stake. In other situations, the private and governmental interests at stake and the risk of an erroneous decision must be weighed.
 
State ex rel. Asberry v. Payne (1998) 82 Ohio St. 44 -- Maternal grandmother petitioning a juvenile court for custody had the right to have counsel appointed to represent her pursuant to Chapter 120 of the Revised Code. R.C. 2151.353 entitles all indigent parties in juvenile proceedings to appointed counsel, and this is not limited by reference in R.C. 120.06 to representation in prosecutions which could result in the loss of liberty. Also see McKinney v. McClure (1995), 102 Ohio App. 3d 165.
 
Schock v. Sheppard (1982), 7 Ohio App. 3d 45 -- A party facing contempt for non-payment of child support, if faced with imprisonment, has the right to appointed counsel if indigent. Lassiter v. Dept. of Social Services (1981), 452 U.S. 18, applied. Compare Courtney v. Courtney (1984), 16 Ohio App. 3d 329; In re Calhoun (1976), 47 Ohio St. 2d 15.

Right to Transcripts

State v. Treesh 90 Ohio St. 3d 460, 467-478, 2001-Ohio-4 -- There is no per se right to daily transcripts in a capital trial.
 
Griffin v. Illinois (1956), 351 U.S. 12 -- Indigents are entitled, at public expense, to transcripts, portions of the record or alternative materials necessary to appeal. Also see Draper v. Washington (1963), 372 U.S. 487; Mayer v. Chicago (1971), 404 U.S. 189.
 
State v. Arrington (1975), 42 Ohio St. 2d 114 -- From the syllabus: "(1) In a criminal case, the state must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal. (Britt v. North Carolina 414 U.S. 226, followed.) (2) The burden is on the state to show that a transcript of prior proceedings requested by an indigent defendant is not needed for an effective defense or appeal. (4) Ordinarily it is assumed that a transcript of a preliminary hearing would be valuable to a defendant without requiring a showing of need tailored to the facts of the particular case." Also see State, ex rel. Partee, v. McMahon (1963), 175 Ohio St. 243.
 
State, ex rel. Heller, v. Miller (1980), 61 Ohio St. 2d 6 -- Paragraph two of the syllabus: "In actions instituted by the state to force the permanent involuntary termination of parental rights, the United States and Ohio Constitutions' guarantees of due process and equal protection of the law require that indigent parents be provided with counsel and a transcript at public expense for appeals as of right."
 
State, ex rel. Serish, v. Warren (1982), 3 Ohio App. 3d 448 -- Headnote: "In a criminal case involving charges brought under municipal ordinances, an indigent defendant must be provided with a transcript of proceedings when that transcript is needed for an effective defense or appeal." Also see State v. Duncan (1976), 45 Ohio St. 2d 134.
 
State, ex rel. Murr, v. Thierry (1987), 34 Ohio St. 3d 45 -- If an indigent has been furnished one copy of a transcript, he is not entitled to a second, here for the preparation of a post conviction action. Also see State ex rel. Call v. Zimmers (1999), 85 Ohio St. 3d 367.
 
State v. Peterson (1976), 46 Ohio St. 2d 425 -- Syllabus: "A pretrial motion by an indigent criminal defendant for a free transcript of a co-defendant's prior trial is properly overruled, where the defendant has made no showing that such transcript is necessary to an adequate defense, or where available alternative devices will provide substantially the same information, and serve substantially the same function as the requested transcript."
 
State v. Thacker (1978), 54 Ohio St. 2d 43 -- Conviction reversed where trial judge overruled motion for transcript of portions of first trial, though the motion was not opposed by the prosecutor.
 
M.L.B. v. S.L.J. (1996), 519 U.S. 102 -- Mother was unable to prepay cost of transcript needed for appeal in termination of parental rights action. Held to be a violation of equal protection and due process.
 
Columbus v. Link (1998), 127 Ohio App. 3d 122 -- Defendant's claim trial court erred in refusing to furnish a free transcript barred by res judicata, as appeals court itself had twice denied motions seeking a transcript at state's expense.

Funds for Investigation, Expert Witnesses and Related Matters

Indigency as Related to Sentencing

Imprisonment for Debt

State v. Keylor, Monroe App. No. 02 MO 12, 2003-Ohio-3491 -- Judgment entry pertaining to county court clerk who embezzled $105,000 stated judicial release would not be considered until monetary sanctions were paid. These also included $19,000 in fines. Statement was gratuitous but did not arise to error. Determination of ability to pay sanctions would have been premature. Failure to object to the amount of the fine at the sentencing hearing said to waive cruel and unusual punishment claim.
 
State v. Myers, Hardin App. Nos. 6-03-02, and 03 -- Jailing for contempt upon nonpayment of court costs is imprisonment for debt. Fines were paid. The duty to pay costs is a civil obligation. Imprisonment upon failure violates Article I, Section 15 of the Ohio Constitution. Strattman v. Studt (1969), 20 Ohio St 2d 95, followed.
 
In re Jackson (1971), 26 Ohio St. 2d 51 -- It is a denial of equal protection for an indigent to be held past the expiration of the term of days imposed in order to work off a fine at a prescribed rate per day.
 
State v. Glasscock (1993), 91 Ohio App. 3d 520 -- (1) Court costs are in the nature of a civil debt. Requiring defendant to work them off by performing community service at $30 per day would be imprisonment for debt. (2) Different result as to working off fines in such a manner.
 
Cramer v. Petrie (1994), 70 Ohio St. 3d 131 -- Syllabus: "An obligation to pay child support is not a "debt" within the meaning of that term in Section 15, Article I of the Ohio Constitution. Because this obligation does not fall within the scope of Section 15, Article I, an order to pay child support may be enforced by means of imprisonment through contempt proceedings even after the child who is the subject of the order is emancipated."
 
In re Rinehart (1983), 10 Ohio App. 3d 318 -- Placing an indigent juvenile in detention for non-payment of court costs is imprisonment for owing a civil debt.
 
Second Natl. Bank of Sandusky v. Becker (1900), 62 Ohio St. 289 -- Paragraph two of the syllabus: "Money obligations arising upon contract, express or implied, are debts within the purview of section 15, of the Bill of Rights, which forbids imprisonment for debt in civil actions."
 
Heidelberg College v. Depew (1988), 44 Ohio Misc. 2d 20, 541 N.E. 2d 637) -- Contempt proceedings against judgment debtor who failed to make installment payments ordered is contrary to Article I, Section 15.
 
State v. Wright (1982), 4 Ohio App. 3d 291 -- Imprisonment for violation of R.C. 3113.06 (failure to pay maintenance costs of child who is a ward of welfare or children services agency) is not imprisonment for debt in a civil action.
 
Harris v. Harris (1979), 58 Ohio St. 2d 303 -- Enforcement of terms of divorce property settlement through contempt proceedings does not amount to imprisonment for debt. Also see Annotation, 154 A.L.R. 443.
 
State, on Complaint of Cook, v. Cook (1902), 66 Ohio St. 566 -- Paragraph two of the syllabus: "A final money decree for alimony is not a debt within the purview of the constitutional inhibition against imprisonment for debt, but is such an order as that...punishment as for contempt may follow a wilful failure to comply with it." Also see Holloway v. Holloway (1935), 130 Ohio St. 214.

Proof of Indigency; Costs Assessment; In Forma Pauperis Rules

Neitzke v. Williams (1989), 490 U.S. 319 -- Provision in federal procedural statutes allowing dismissal of frivolous or malicious complaints when plaintiff has asked for leave to proceed in forma pauperis is not to be interpreted so as to allow dismissal of all claims where, pursuant to Civil Rule 12(b)(6) the complaint fails to state a cause of action.
 
Wilson v. Ohio Department of Rehabilitation and Correction (1996), 111 Ohio App. 3d 605 -- Court of Claims improperly dismissed inmate's action on the basis information in his affidavit of indigency was incomplete. Inmate in fact had completed and filed the requested documents prior to date of court's entry ordering him to do so.
 
Karmasu v. Wilkerson (1996), 115 Ohio App. 3d 737 -- Inmate's lawsuit properly dismissed after in forma pauperis status was revoked because of "repeatedly filing frivolous and vexatious pleadings" and subsequent failure to cover necessary costs of continuing the action. Also see Karmasu v. Southern Ohio Correctional Facility (1993), 63 Ohio Misc. 2d 377; Wilson v. Ohio Department of Rehabilitation and Correction (2000), 138 Ohio App. 3d 239.
 
Rash v. Anderson (1997), 80 Ohio St. 3d 349, 351 -- With little discussion, court finds no constitutional violations in R.C. 2969.22, which calls for all but $10 to be taken from inmate accounts towards payment of court costs in civil cases.
 

Publishing Information

Published by David L. Strait
 
Copyright © Franklin County Public Defender and David L. Strait, 2015
 
Contents may not be duplicated without express permission.

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