Toledo v. GarmonToledo v. Garmon
* * * * *
David Toska, Chief Prosecutor, City of Toledo, and Joseph J. Howe, Assistant Prosecutor, for appellee.
Tim A. Dugan, for appellant.
* * * * *
I. Introduction
{¶ 1} Appellant, Shirley Garmon, appeals the judgment of the Toledo Municipal Court, finding her guilty of failing or neglecting to obey or abide with an order to abate a public nuisance in violation of
{¶ 2} In April 2010, after investigating complaints concerning the condition of Garmon‘s home located at 3436 Ojten Road, Toledo, Ohio, appellee, the city of Toledo, ordered Garmon to “repair or demolish” her house. When Garmon failed to comply with the order, appellee filed a complaint against Garmon charging her with failing or neglecting to obey or abide with an order to abate a public nuisance in violation of
{¶ 3} At her initial hearing on the matter, Garmon appeared with privately retained counsel. During the course of the hearing, counsel filed a motion to withdraw due to Garmon‘s inability to pay and requеsted appointment of a public defender to represent Garmon. The trial court granted counsel‘s motion to withdraw, entered a plea of not guilty, and appointed a public defender as requested.
{¶ 4} Garmon failed to appear for the next scheduled court date. Consequently, a bench wаrrant was issued for her arrest. She subsequently appeared in court during amnesty week in order to have her bench warrant revoked. Garmon stated that she failed to appear because nobody contacted her and informed her that she was required to appear. The court proceedеd to ask Garmon to enter a plea for a second time, to which she responded as follows:
THE DEFENDANT: As far as I‘m concerned, sir, I am not guilty. On either account. Second thing, I did ask at the courts upstairs, or whatever it is, for the attorney for Ojten Road to give me their name and
they refused, and I have not received a lеtter from anyone saying that they wanted to get out of it at all. * * * THE COURT: I‘m going to ask you to stop right there. If you‘re entering a plea of not guilty, I‘m going to set the matter for trial. I had previously appointed a public defender to represent you.
THE DEFENDANT: I know, but nobody told me the name.
[HOUSING SPECIALIST] MS. FALLS: Judge, I don‘t believe she actually qualifies.
THE COURT: I‘m telling you I‘m not going to reappоint anyways. The bench warrant has been withdrawn. I‘m going to enter a plea of not guilty for you. Go upstairs to Room 206 to get a trial date.
* * *
THE DEFENDANT: Are you going to give me the name of that fellow that‘s supposed to be the person helping me, the lawyer?
THE COURT: Well, you don‘t have a lawyer. I‘m not reappointing the public defender‘s office. I‘m appointing a housing specialist to talk to you.
{¶ 5} Approximately eight weeks later, Garmon appeared at a pretrial and again requested the assistance of a public defender. The city prosecutor indicated that Garmon‘s income exceeded the allowable limit for the appointment of a public defender.
When I tried to get a name or anything, they would not give me no name or nothing that I could talk to. Then when they came up, the defender thаt you appointed or whoever it was said he didn‘t want to take my case. And then [the housing specialist] Barbara said I made too much money, but I also have a daughter that‘s 47 years old. Her doctor made her quit her job and she has three kids but she has two at home, and I am paying all her housing bills * * *.
{¶ 6} The court expressed its sympathy regarding Garmon‘s financial predicament, but stated that counsel could not be appointed due to her income. Because counsel would not be appointed, the court informed Garmon that she could either proceed pro se or hire her own counsel. Specifically, the court stаted:
Now, if you want to proceed pro se, you can obviously speak with the prosecutor, speak with Barbara and perhaps we can get the matters resolved. I don‘t know what your concern is in terms of proceeding. As I look at the photographs, there‘s a clear indication that there is a problem with this house. * * * If you wish to proceed pro se and enter a not guilty plea, I‘ll accept your plea and you will sign a waiver form and I will listen to what you have to say. I will probably again refer you to Barbara so she can work with you and see if we can get this matter resolved. If that‘s not
what you wish to do, then we can schedule the matter for trial. It will be your choice.
{¶ 7} In light of the trial court‘s statements, Garmon expressed her desire to reconnect with her privately-retained counsel. Based on Garmon‘s wishes to consult with counsel, the court continued the matter for one week.
{¶ 8} At her next court date, Garmon appeared before the court without an attorney. The court asked her whether she was able to consult with an attorney, and she responded that she was not. She stated: “I do not have any money to get an attorney which I asked [for] before.” For the third time, the court then proceeded to enter a plea of not guilty on Garmon‘s behalf and directed her to “go upstairs to [Room] 206” to receive her trial date.
{¶ 9} Finally, Garmon appeared in court on the date of her trial and again requested a public defender. The court denied her request, stating:
My recollection is that you had the resources, ample resources to hire counsel, but you elected to use your resources to support your daughter rather than take care of your personal business. And that‘s your choice, but I‘m not going to appoint a public defender again to represent you. If you want a trial today, we‘ll have a trial, but you‘ll have to represent yourself.
{¶ 10} Ultimately, the trial court indicated that appellee was prepared for trial and asked Garmon whether she wished to proceed pro se. She stated that she did not feel
{¶ 11} The mаtter proceeded to a bench trial, at which appellee called only one witness: inspector Deborah Rodriguez Dickerson. Dickerson testified that she was familiar with the conditions of the subject property. In addition, she testified that Garmon owned the property, and that the property was “in nеed of repair or replacement.” Further, Dickerson testified that the property was not in compliance with the April 2010 order.
{¶ 12} Garmon‘s defense consisted of her own testimony that she remembered receiving the April 2010 order telling her to replace the gutters. Although she was able to obtain new gutters, she statеd that she had not installed them because she was waiting for her grandson‘s help. She also admitted that the roof had a hole in it for a “very short time.”
{¶ 13} At the conclusion of trial, the court found Garmon guilty and continued the matter for sentencing. The court appointed a public defender to represent Garmon at sеntencing, notwithstanding its prior determination that Garmon did not qualify for a public defender. Notably, this subsequent appointment was made without any additional information concerning Garmon‘s income.
{¶ 14} At sentencing, Dickerson informed the trial court that the city had boarded up the back door and basement window, and that the trusses on the home were starting to erode. As a result, the court ordered the home demolished. In addition, the court
B. Assignments of Error
{¶ 15} On appeal, Garmon assigns the following errors for our review:
1) The Trial Court violated Aрpellant‘s Sixth Amendment right to Counsel.
2) The Trial Court‘s decision ordering the demolition of the property was an abuse of discretion.
II. Analysis
{¶ 16} In her first assignment of error, Garmon argues that the trial court violated her Sixth Amendment right to counsel by forcing her to proceed to trial pro se. Garmon argues that the trial court erred in twо ways. First, she contends that the trial court should not have forced her to proceed pro se without obtaining a proper waiver of her right to counsel. Second, she asserts that, because counsel had previously been appointed prior to the issuance of the bench warrant, she was aсtually represented on the date of trial and, consequently, should not have been forced to proceed without the assistance of her counsel.
{¶ 17} Under the Sixth Amendment, a criminal defendant is entitled to full and fair representation at trial by counsel. United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 37 L.Ed.2d 619 (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, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963);
{¶ 18} In Ohio,
{¶ 19} In the case sub judice, Garmon was charged with failing or neglecting to obey or abide with an order to abate a public nuisance, which is a misdemeanor of the third degree punishable by a maximum term of imprisonmеnt of 60 days. As such, Garmon was charged with a “petty offense” as that term is defined under
{¶ 20} As an initial matter, Garmon argues that the trial court erred when it determined that she was able to obtain her own counsel. Specifically, Garmon notes that “the only evidence on the record that Appellant did not qualify as indigent for appointed
{¶ 21} Indeed, in denying Garmon‘s request for appointed counsel, the trial court relied upon Falls’ statement that Garmon was ineligible for a public defender due to her excessive income. However, the trial court‘s conclusion was premature. In order to determine whether a criminal defendant is “unable to obtain counsel” under
{¶ 22} Under
{¶ 23} Under
To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309 (1948).
{¶ 24} Having reviewed the record, it is clear that Garmon did not expressly or implicitly waive her right to counsel. Despite appellee‘s contention that Garmon was “given significant information by the Trial Court as to her situation with counsel and instruction on how the case would proceed with her as a pro se defendant,” the trial court
{¶ 25} We also note that the trial court erroneously assumed that Garmon was no longer represented by her previously-appointed public defender based on her failure to appear and the corresponding bench warrant. Appellee asserts that it is standard practice in the trial court to automatically remove appointed counsel when a defendant is issued a bench warrant fоr failure to appear. However, we have previously disapproved of this practice on Sixth Amendment grounds. See City of Toledo v. Hampton, 6th Dist. Lucas No. L-88-214, 1989 WL 150992, *3 (Dec. 15, 1989) (stating that “the practice of permitting a public defender to withdraw from a case without filing a motion or providing some kind of notice to an indigent defendant is a procedure which leads to the kind of constitutional problems found in the case at bar“). In that case, we also stated: “The failure of a defendant to appear does not, standing alone, imply a waiver.” Id., citing Kleve, supra, 2 Ohio App.3d at 408-09, 442 N.E.2d 483.
{¶ 26} Since the previously-appointed public defender did not formally withdraw or notify Garmon of such withdrawal, we conclude that the trial court should not have proceeded to trial without the presence of Garmon‘s appointed counsel. For that
{¶ 27} Accordingly, Garmon‘s first assignment of error is well-taken. Having found Garmon‘s first assignment оf error well-taken, the second assignment of error is moot.
III. Conclusion
{¶ 28} Based on the foregoing, the judgment of the Toledo Municipal Court is reversed and this matter is remanded to the trial court for a new trial. Costs are hereby assessed to appellee in accordance with App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, P.J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR. _______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.