668 N.E.2d 934 | Ohio Ct. App. | 1995
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *290
Defendant-appellant, Andrew Ebersole, appeals from the judgment of conviction and sentencing entered in the Findlay Municipal Court, for a violation of R.C.
On September 10, 1993, appellant was issued a citation for operating a motor vehicle during the suspension of his driver's license in Hancock County, Ohio. On September 22, 1993, the trial court ordered that attorney William S. Alge be appointed counsel for appellant. Immediately preceding this order in the record, but not file-stamped, are two affidavits of indigency. One affidavit is a form required by R.C.
"14. I UNDERSTAND IF I AM FOUND GUILTY I MUST PAY MY ATTORNEY FEES, WHICH WILL BE TAXED AS COSTS. I ALSO UNDERSTAND THAT IF I FAIL TO CONTACT, COMMUNICATE OR COOPERATE WITH MY APPOINTED ATTORNEY, THAT I SPECIFICALLY WAIVE MY RIGHT TO THE APPOINTMENT OF ADDITIONAL COUNSEL."1
Paragraph fourteen was initialed, and the form signed at the end by appellant on September 21, 1993.
On September 24, 1993, appellant entered a plea of not guilty. On November 15, 1993, appellant filed a motion to suppress. A hearing was held on the motion to suppress on January 5, 1994, at which time appellant and attorney Alge were present. At the conclusion of the evidence presented, the trial court overruled the motion to suppress.
Trial was set for January 20, 1994; however, attorney Alge requested a continuance to complete discovery and prepare for defense of the case. This motion was granted, and trial was set for March 10, 1994. The record reflects, by judgment entry dated March 15, 1994, that appellant did not appear for trial and attorney Alge made a motion to withdraw as counsel. The trial court stated that "based on Defendant's failure to communicate with his court appointed counsel and for good [cause] shown" attorney Alge was permitted to withdraw as counsel. Also at that time, the trial court ordered that a bench warrant issue for appellant's arrest for appellant's failure to appear at trial. *292
Appellant was apprehended in January 1995 pursuant to the bench warrant. Subsequent to his arraignment, appellant filed, on February 8, 1995, a motion for "reconsideration of counsel (appointed)." On the form, appellant stated his reasons for the motion for appointed counsel as "[p]revious Court appt. attorney withdrew from case/lack of court atty. notification due to change of address." On the same date, the court called appellant and the prosecutor into court, and the discussion was recorded to discuss appellant's motion for appointed counsel. The discussion was recessed at the trial court's insistence to allow attorney Alge to relay his notifications of the March 1994 trial date to the court. On March 2, 1995, a hearing was held with attorney Alge, appellant, and the prosecutor present in the courtroom.
At the conclusion of the hearing, the trial court determined that appellant had waived his right to appointed counsel "because of [appellant's] failure to consult with [his] counsel and * * * lack of evidence that it was with good cause, that [appellant is] not entitled to the subsequent appointment of counsel, pursuant to paragraph 14 of our application. And so I'm not going to grant subsequent counsel at public expense. You're certainly free to obtain your own lawyer."
A jury trial was set for March 23, 1995. At trial, appellant represented himself. At the conclusion of the presentation of the evidence, the jurors found appellant guilty of R.C.
On April 6, 1995, represented by counsel, appellant filed a motion for a new trial, pursuant to Crim.R. 33(A)(1). The trial court overruled this motion. Appellant then timely appealed his conviction and sentencing to this court with the aid of court-appointed counsel, asserting four assignments of error.
Appellant's first two assignments of error are interrelated and will be considered and disposed of together.
The
Crim.R. 44(C) requires that a waiver of counsel "shall be in open court and the advice and waiver shall be recorded." This court has stated that strict compliance with this procedural rule is not necessary, so long as the substance and spirit of the rule have been complied with. State v. Overholt (1991),
This case does not fall within the parameters of Crim.R. 44(C) because the waiver was not expressly or impliedly made. However, Ohio appellate courts have held that a waiver may be inferred from the circumstances of an individual case. SeeState v. Crebs (1987),
At this juncture, it is important to note that paragraph fourteen of the affidavit of indigency form provided by the Findlay Municipal Court ("trial court affidavit") does not amount to a waiver of appellant's right to counsel. Initially, we are concerned with the procedural aspects of the two affidavit of indigency forms included as part of the record, but not file-stamped or attached to the order providing appellant with court-appointed counsel. App.R. 9(A) states that the record on appeal is composed of those papers that are filed in the trialcourt. As indicated, the two affidavit forms are neither file-stamped nor attached to the September 22, 1993 order appointing counsel for appellant.
Even if the forms are a part of the record on appeal, the effect of paragraph fourteen of the trial court affidavit is null because it does not amount to a valid waiver. Crim.R. 44(C) requires a waiver be made orally in open court and recorded. SeeGarfield Hts. v. Brewer (1984),
Paragraph fourteen of the trial court affidavit does not meet the constitutional aspects of a valid waiver of counsel. First, we note that when appellant was questioned on February 8, 1995 about signing his initials after paragraph fourteen, the trial judge only asked appellant whether he initialed that particular paragraph or not. The trial judge never questioned appellant whether he knew or understood what paragraph fourteen meant. Moreover, the paragraph does not inform the defendant that he will have to represent himself in the event that court-appointed counsel is denied him and, further, does not mention the dangers inherent in self-representation.
Turning to the specific circumstances of this case, we find that the facts do not amount to a valid waiver. Simply put, although appellant's actions of failing to notify his attorney of his change of address and not contacting his court-appointed counsel or the court between January 1994 and his apprehension in January 1995 are not condoned by us, neither will we condone the trial court's action denying a defendant court-appointed counsel when, prior to the denial, the trial court fails to inform the defendant of the consequences of his action. In other words, the constitutional requirements of a valid waiver delineated inFaretta, supra, must still be articulated to the defendant: a defendant must know that his failure to contact his attorney will result in no further appointed counsel and if this happens, unless he can afford an attorney, he must represent himself and, also, be informed that there are dangers inherent in self-representation. See, also, Overholt, supra,
"Such an inquiry must be made, even when the defendant is seemingly engaging in delay tactics, because such a delaying strategy by the defendant is often employed where the defendant does not understand the crucial role of counsel in criminal cases. * * * If the defendant then continues with his `cat andmouse' game with the court, the court may properly proceed withtrial with the knowledge that the defendant knows the gravity ofhis decision to proceed pro se." (Emphasis added.) Weiss,supra,
The record herein does not indicate that appellant was ever informed of the consequences of actions frustrating the judicial process. Without such an inquiry and explanation to appellant, the trial court erred, as a matter of law, in concluding that appellant waived his right to counsel. Not only must the defendant's actions be examined, but also, the trial court's explanation of the consequences of a defendant's actions must be examined in order to make a proper determination whether a defendant waived his right to counsel.
The trial court herein relied upon United States v. Fazzini
(C.A.7, 1989),
Herein, these facts are not presented. Therefore, the trial court's reliance upon this case is misplaced.
Appellant's first and second assignments of error are sustained.
Appellant's third and fourth assignments of error are rendered moot by our disposition of the first and second assignments of error and are therefore overruled. App.R. 12(A)(1)(c).
The judgment of the Findlay Municipal Court is reversed, and the cause is remanded for proceedings consistent with this opinion.
Judgment reversed and cause remanded.
THOMAS F. BRYANT, P.J., and SHAW, J., concur.