700 N.E.2d 682 | Ohio Ct. App. | 1997
The record shows that on December 9, 1993, the municipal court appointed Thomas McMahon to represent petitioner Jeffrey Allen at the preliminary hearing. That same day, the municipal court informed petitioner of his rights, and petitioner choose to waive his right to a preliminary hearing. The municipal court found probable cause to hold petitioner for trial and bound the matter over to the grand jury. The grand jury returned a four-count indictment charging petitioner with counts of robbery, uttering, forgery, and receiving stolen property. At the arraignment, the court of common pleas appointed petitioner a different attorney for trial. A jury found petitioner guilty of robbery, uttering, and receiving stolen property, and not guilty of forgery. We affirmed the conviction in State v. Allen (1995),
Following direct appeal, petitioner learned that McMahon had been indefinitely suspended from the practice of law prior to being appointed to represent petitioner at the preliminary hearing. McMahon's disciplinary record began with a public reprimand resulting from neglect of a legal matter. DisciplinaryCounsel v. McMahon (1992),
The petition for postconviction relief asserted the sole ground that petitioner had been denied his
In findings of fact and conclusions of law the trial court rejected this claim. While conceding that the preliminary hearing was a critical stage of the proceedings to which the right of counsel attached, the trial court nonetheless refused to find perse error. The trial court noted that McMahon did not represent petitioner at trial, so any denial of the right to counsel at the preliminary hearing *669
stage would have been harmless. In reaching this conclusion, the trial court distinguished our decision in State v. Newcome
(1989),
The trial court further found that petitioner did present a full defense, including alibi witnesses. Given this full opportunity to present a defense with licensed counsel, the trial court found that granting a new trial would not change the outcome of the verdict.
The
Violations of the
Petitioner cites our holding in State v. Newcome as reflecting our adoption of a per se rule relating to
The quoted portion of Newcome should not be read as imposing a per se rule. Because the state conceded the issue on appeal, we had no occasion to engage in any analysis on the right to counsel issue. Moreover, as the trial court noted, the violation inNewcome culminated with an uncounseled guilty plea, the ultimate act in a criminal case. The extent of petitioners lack of representation in this case, however, consisted only of waiving the right to a preliminary hearing. As a practical matter, waiving the preliminary hearing simply bound the matter over to the grand jury, which found probable cause to return an indictment. The trial court appointed different counsel to represent petitioner at his arraignment in the court of common pleas, and petitioners
Petitioner argues that a preliminary hearing would have enabled him to present evidence that his nephew committed the offense and might have ended the investigation against him at that point in time. This is a tenuous proposition at best. While we do not know what transpired before the grand jury, our opinion in Allen,supra, showed that two eyewitnesses to the offense positively identified petitioner as the assailant.
Our position is consistent with federal court decisions construing alleged per se violations of the
Reese is very similar to this case. Reese's attorney had been suspended from the practice of law after failing to pay his bar dues, but before assuming the *671
defense of Reese's case. Reese argued that the suspension equated to no "assistance of counsel" for purposes of the trial. The court disagreed, noting that historically, licensing of attorneys had not been a prerequisite for the practice of law. The word "counsel" as used in the 1790s simply meant a person "deemed by the court fit to act as another's legal representative and inscribed on the list of attorneys." Id. at 669. Recognizing that the tradition of appearing in court without express licensure survives to this day by admission pro hac vice, the Seventh Circuit Court of Appeals found that such admission could bear little or no relationship to the local bar to which the attorney sought admission pro hac vice. Id. at 669-670. Reese considered that admission to a federal bar would not be endangered by an attorneys failure to pay state bar association dues. Id., citingIn re Ruffalo (1968),
McMahon's suspension did not implicate his failure "ever" to meet the substantive qualifications to practice law in the state of Ohio. McMahon's admission to the bar necessarily indicated either that he passed the Ohio bar examination or was approved for admission without examination by virtue of admission to the bar of another state. See, generally, Gov.Bar R. I, Sections 1 and 9. McMahon having gained proper admission to the bar, his initial qualifications are not suspect, and his suspension does not suggest a per se violation of the right to counsel. ContrastSolina v. United States (C.A.2, 1983),
More to the point, in Kieser v. New York (1995),
Certainly, McMahon's suspension for neglecting the legal matter of a client reflected poorly on his performance as an attorney, but it has long been considered that "the breach of an ethical standard does not necessarily make out a denial of the
Judgment affirmed.
MATIA, C.J., PATTON and HOLMES, JJ., concur.
ROBERT E. HOLMES, J., retired, of the Supreme Court of Ohio, sitting by assignment. *673