State v. FrancisState v. Francis
Steven H. Eckstein, for appellant.
PIPER, J.
{¶ 1} Appellant, Marcus Francis, was indicted by a Fayette County Grand Jury on one count of engaging in a pattern of corrupt activity and three counts of aggravated trafficking in drugs for his participation in a major drug enterprise involving the sale of methamphetamine. Appellant pled not guilty, and the court appointed appellant trial counsel.
{¶ 3} On March 4, 2024, the trial court denied appellant‘s pro se motions in an entry that stated the court does not recognize hybrid representation. On March 14, 2024, appellant pled no contest to the charges listed in the indictment. The trial court sentenced appellant to an aggregate prison term of 30-35.5 years. Appellant now appeals, raising a single assignment of error for review:
{¶ 4} DEFENDANT-APPELLANT WAS DENIED HIS CONSTITUTIONALLY GUARANTEED RIGHT TO EFFECTIVE HYBRID REPRESENTATION UNDER OHIO CONSTITUTION, ARTICLE 1, SECTION 10.1
{¶ 5} It is well established that a defendant does not have any right to “hybrid representation.” State v. Martin, 2004-Ohio-5471, ¶ 31; State v. Chisenhall, 2024-Ohio-1918, ¶ 13 (12th Dist.); State v. Terell, 2022-Ohio-4312, ¶ 34 (6th Dist.); State v. Wilson, 2020-Ohio-2962, ¶ 56 (2d Dist.). “In Ohio, a criminal defendant has the right to representation by counsel or to proceed pro se with the assistance of standby counsel. However, these two rights are independent of each other and may not be asserted simultaneously.” Martin at ¶ 32.
{¶ 6} In this appeal, appellant requests that we reconsider whether he should be entitled to hybrid representation under
{¶ 7} However, we find appellant‘s argument is without merit, as appellant never made any request that he be permitted to hybrid representation. See State v. Pollard, 2021-Ohio-2520, ¶ 10 (8th Dist.). Appellant merely filed a number of pro se motions that were rejected because hybrid representation is not permissible. Appellant never requested that he be permitted to proceed in a hybrid representation.2
{¶ 8} Appellant now argues for the first time on appeal that he was denied his “constitutionally guaranteed” right to hybrid representation. However, appellant never requested hybrid representation and it is well established that a party may not raise new issues for the first time on appeal. See State v. Tutt, 2021-Ohio-96, ¶ 8 (12th Dist.) (“It is well settled that issues not raised in the trial court may not be raised for the first time on appeal.“).
{¶ 9} Moreover, the trial court‘s ruling was correct, as appellant was not entitled to hybrid representation. Martin, 2004-Ohio-5471 at ¶ 31 (“neither the United States Constitution, the Ohio Constitution nor case law mandates . . . hybrid representation“). Because appellant was at all times represented by counsel in this case, the trial court had
{¶ 10} In brief response to Appellant‘s misapplied argument we would remind appellant the Ohio Supreme Court has expressly acknowledged the difference in the text found in the Ohio and federal constitutional provisions and has already determined Ohio‘s
{¶ 11} Appellant‘s sole assignment of error is overruled.
{¶ 12} Judgment affirmed.
M. POWELL, J., concurs.
BYRNE, P.J., concurs separately.
{¶ 13} I agree with most of the majority‘s analysis, but I write separately because I disagree with some of the wording in the majority opinion, and in order to briefly address certain issues regarding Francis’ argument under the Ohio Constitution.
{¶ 14} “Ohio courts should be open to arguments that, in some instances (whether in the criminal context or otherwise), the Ohio Constitution may recognize rights beyond those recognized by the United States Constitution.” State v. Downing, 2024-Ohio-381, ¶ 62 (12th Dist.) (Byrne, J., concurring), citing State v. Walton, 2021-Ohio-3958, ¶ 38 (12th Dist.) (Byrne, J., concurring). As I explained in my concurrence in Downing,
The need to conduct an independent analysis of the language of the Ohio Constitution always exists when parties present questions of first impression under both the state and federal constitutions. The two constitutions are, after all, separate legal documents. But the need for independent analyses is particularly acute when the federal and state constitutions address the same general topic but use different language to describe that topic. See Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law, 174, 177 (2018) (“There is no reason to think, as an interpretive matter, that constitutional guarantees of independent sovereigns, even guarantees with the same or similar words, must be construed in the same way. *** There will never be a healthy ‘discourse’ between state and federal judges about the meaning of core guarantees in our American constitutions if the state judges merely take sides on the federal debates and federal authorities, as opposed to marshaling the distinct state texts and histories and drawing their own conclusions from them“).
{¶ 15} Here, the federal and Ohio constitutions use different language to describe the right to counsel. The
{¶ 16} This is not to suggest or conclude that the language in Ohio‘s constitution should necessarily be read as recognizing a right to hybrid representation. In fact, the relevant quoted language in the state constitution could be read in at least two ways.
{¶ 17} First, the quoted language in
{¶ 18} Second, the quoted language in
{¶ 19} The Ohio Supreme Court has repeatedly held or stated that there is no right to hybrid representation. State v. Martin, 2004-Ohio-5471, ¶ 31, quoting McKaskle v. Wiggins, 465 U.S. 168 (1984) (“‘[n]either the United States Constitution, the Ohio Constitution nor case law mandates . . . hybrid representation“); State v. Thompson, 33 Ohio St.3d 1, 6-7 (1987) (same). But Francis points to multiple concurring opinions in which Justice Fischer has pointed out that in holding there is no right to hybrid representation, the Ohio Supreme Court appears not to have actually analyzed the text of
“[T]he [Ohio] Constitution is the supreme law; it is the expression of the will of the people, subject to amendment only by the people, and neither the Legislature by legislative enactment, nor the courts by judicial interpretation, can repeal or modify such expression or destroy the plain language and meaning of the Constitution, otherwise there would be no purpose in having a constitution.”
State ex rel. Cincinnati Enquirer v. Bloom, 2024-Ohio-5029, ¶ 46, quoting Hoffman v. Knollman, 135 Ohio St. 170, 181 (1939). Accord State ex rel. One Person One Vote v. LaRose, 2023-Ohio-1992, ¶ 23 (same).
{¶ 20} I pause here to note that in arguing against Francis’ reading of the relevant text in
{¶ 21} Francis, on the other hand, makes a text-based argument. Yet as I mentioned above, the text here could be read in two ways. To determine which reading of the text is the proper one, we would need to review legal or historical sources from the time the relevant text of
{¶ 22} But, as the majority rightly points out, Francis did not raise any argument for hybrid representation under the Ohio Constitution before the court below and did not even file a motion specifically requesting hybrid representation. Francis therefore forfeited this argument, and it would be improper for us to decide the constitutional argument he has raised for the first time on appeal. Tutt, 2021-Ohio-96 at ¶ 8. Nor would a plain-error analysis assist Francis. The Ohio Supreme Court decisions stating that there is no right to hybrid representation mean that even if this court were to conclude that Francis is right about the Ohio Constitution‘s text, the trial court‘s “error” in not allowing him to proceed with hybrid representation would not be “plain.” State v. Fuell, 2021-Ohio-1627, ¶ 70-71 (12th Dist.) (plain error must be “plain“).
{¶ 23} For these reasons this is not the proper case for addressing the
{¶ 24} I respectfully concur in the judgment.