Right To Counsel For The Poor, The Rich, And The Somewhat Annoying

State v. Leonard, 2017-Ohio-211, read like an old country song about losing everything to the ex-wife, including your freedom.  Good thing for Leonard, he got his freedom back and his case was remanded back to the trial court.

In Leonard, Leonard charged with Domestic Violence Threats and appeared for his arraignment without counsel.  During the arraignment, the court asked Leonard if he could afford an attorney.  Leonard responded with “potentially.”

After Leonard’s response, the city prosecutor chimed in to notify the court that he looked up Leonard’s 2014 divorce decree and stated that Leonard might not qualify for a public defender because his annual income might be as high as six figures.  Without inquiring further, the trial court told Leonard that his case will be continued in order for him to retain an attorney.

Leonard appeared in court with private counsel on two separate occasions for pre-trials and at both hearings, Leonard’s counsel filed for continuances and for additional pre-trials.  These requests were granted by the trial court.  However, Leonard’s counsel withdrew from the case and Leonard found himself without an attorney for his next hearing.

At the new hearing, Leonard requested a public defender stating to the trial court that he was unable to hire new counsel.  The trial court briefly inquired Leonard on his finances and then assigned Leonard a public defender.  On his affidavit of indigency, Leonard stated that his income was $5,000 per month and his month expenses was $8,500 per month, to include a child support obligation of $4,300 per month.

Back for another hearing, Leonard’s public defender moved to withdraw from the case, stating that the Leonard did not meet the indigency requirements.  In addition, Leonard’s public defender notified the trial court that Leonard wanted a jury trial.  The trial court granted the public defender’s motion to withdraw from Leonard’s case and stated “We are not to that point yet” with regards to the jury trial.

On July 14, 2015, Leonard showed up once again for another pre-trial and without a lawyer.  At this hearing the following conversation occurred between the trial court and Leonard.

Court:  All right, sir, you have a new case of driving under suspension, and this was continued on the previous case for you to have a lawyer here.  Have you retained counsel?

Leonard:  I don’t have the resources, Your Honor.

Court:  I don’t believe you.

Leonard:  I’m sorry.

Court:  You’re facing – we have a bond report – have a seat, I want to see what your compliance with bond is.

Court:  If you don’t hire a lawyer, we are proceeding without a lawyer.  Case is set for trial August 19 at ten o’clock.

Leonard:  What if I don’t have the money?  I do not have it.  I’m ordered to pay from Judge Zemmelman.  I don’t know why the court doesn’t understand that.

Court:  You make too much money to qualify for the public defender’s office.  When the trial is, if you want to go without a lawyer, that’s up to you, I wouldn’t do it.  Bond is continued.

On the day of the trial, Leonard showed up without an attorney.  As the trial court began to explain the trial procedure, Leonard interrupted the trial court several times asking for a continuance.  Leonard’s continuances requests were based on his public defender failing to file a jury demand and that he never received the state’s witness list.  The trial court denied the continuances and made it known to Leonard that if he continued to interrupt court proceedings the court would find him in contempt.

The trial began and the prosecution called several witnesses, including Leonard’s ex-wife and their two children.  Leonard attempted to questions the state’s witnesses, but as the appellate court noted “Leonard appeared to be at a severe disadvantage.”  After the prosecution rested, Leonard called himself as his own witness.

Upon finishing his statement to the court, the trial court stated the following:

“Quite frankly, sir, you are one of the most abrasive acerbic persons that I have seen in this court.  To be around you is difficult.  You interfere with all proceedings; you try to control all proceedings.  It is incredibly difficult to be around you.”

The trial court found Leonard guilty of domestic violence threats and continued the case for a sentencing hearing.  Prior to the sentencing hearing, Leonard retained counsel and filed a motion for a new trial, asserting that his Sixth Amendment right to counsel was violated.  The state filed a response in opposition to Leonard’s motion arguing that Leonard waived his right to counsel.

At Leonard’s sentencing hearing, the trial court allowed arguments on Leonard’s motion for a new trial.  The trial court stated the following:

“Quite frankly, I find it telling that the retained counsel is now representing the defendant at this stage.  I urged him to have retained counsel at the trial, he chose not to do that.”

The trial court summarily denied Leonard’s motion and sentence Leonard to 10 days in county jail.  Leonard appealed.

Leonard assigned two assignments of error on appeal, but the appellate court only ruled on his first assignment of error surrounding his Sixth Amendment right to counsel argument.

Under the Sixth Amendment, a criminal defendant is entitled to full and fair representation at trial by counsel.  U.S. v. Ash, 413 U.S. 300 (1973).  When a defendant is unable to secure counsel using private funds, the state has a duty to provide such counsel.  Gideon v. Wainwright, 372, U.S. 335 (1963).  An indigent defendant is entitled to appointed counsel only in those prosecutions where a term of imprisonment could be imposed.  Argersinger v. Hamlin, 407 U.S. 25 (1972).

There are many factors that may impinge upon a defendant’s inability to obtain counsel, factors which may differ greatly from case to case.  State v. Tymico, 42 Ohio St.2d 39 (1975).  To make the right to assistance of court-appointed counsel a factual reality, the determination of need must turn, not upon whether an accused ought to be able to employ counsel, but whether he is in fact able to do so.  Id.

In order to determine whether a criminal defendant is “unable to obtain counsel” under Crim.R. 44, the trial court must “inquire fully into the circumstances impinging upon the defendant’s claimed inability to obtain counsel.”  Id.  When an accused is financially able, in whole or in part, to obtain the assistance of counsel, but is unable to do so for whatever reason, appointed counsel must be provided.  Id.

The appellate court found that Leonard repeatedly requested for appointed counsel.  They went on to find that Leonard insisted he was unable to independently obtain counsel, despite several attempts to do so, because he did not have sufficient cash for attorney’s retainer.  The record, however, indicated that the trial court failed to inquire fully pursuant to Tymcio as to the circumstances impacting Leonard’s ability to retain counsel.

Based on the case law and the facts, the appellate court held that the trial court failed to ensure that Leonard was adequately represented by counsel, and remanded the case back to the trial court for further proceedings.

Something tells me that Leonard really got underneath the trial court’s skin and he just could not stand the man any longer.  Hopefully the next go around works out for Leonard.

www.daytonduilaw.com

 

 

 

 

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