Public Defenders and Appointed Counsel


Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office

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.
State v. 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, 2009-Ohio-479.
State v. 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, 2009-Ohio-1508.
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. R.C. 2909.21(I) and 2929.32(A)."
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 R.C. 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, 2002-Ohio-4804 and State ex rel. Felson v. McHenry, 158 Ohio App. 3d 81, 2004-Ohio-3622 which 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 uncertified.
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 R.C. 2941.51(D).
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, 2005-Ohio-5322.
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 Amendment.
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 R.C. 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, 2003-Ohio-5954 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 criminal proceedings.
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 involved.
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 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.
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, 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 appeal."
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 circumstances.
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 over.
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 counsel."
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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Published by Timothy E. Pierce
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
Contents may not be duplicated without express permission.