City of Toledo v. Frazier

• Decision Date: 19 April 1967
• Parties: , 39 O.O.2d 123 CITY OF TOLEDO, Appellee, v. FRAZIER, Appellant.
• Court: Ohio Court of Appeals

Page 51

10 Ohio App.2d 51

226 N.E.2d 777, 39 O.O.2d 123

CITY OF TOLEDO, Appellee, v. FRAZIER, Appellant.

Court of Appeals of Ohio, Sixth District, Lucas County.

April 19, 1967.

Louis R. Young, Director of Law, and Gerald A. Jibilian, Toledo, for appellee.

Harland M. Britz, Niki Schwartz, and Gerald B. Lackey, Toledo, for appellant.

SMITH, Presiding Judge.

This is an appeal on questions of law from a judgment and sentence of the Municipal Court of Toledo, affirmed on appeal to the Common Pleas Court of Lucas County by a panel of three judges concurring, convicting the defendant, appellant herein, on a charge of unlawfully operating a motor vehicle on the streets of the city of Toledo without a proper driver's license, in violation of the Toledo Municipal Code, Section 29-9-1, Article IX, which provides:

'(a) No person shall operate a motor vehicle upon the streets or highways of the city of Toledo unless such person shall have either a driver's license, a chauffeur's license or a temporary instruction permit, all as required by the statutes of the state of Ohio; * * *

'(c) Every person convicted of a misdemeanor for the violation of any of the provisions of this section shall be punished by a fine of not more than five hundred dollars or by imprisonment of not more than six months or by both such fine and imprisonment.'

The ordinances of the city of Toledo have been so codified paralleling statutes of the state of Ohio on the same subject matter.

The sole assignment of error stated to this court is that the Court of Common Pleas erred in affirming the judgment of the Toledo Municipal Court. Counsel for the defendant asserts that the question raised by the appeal is whether the defendant has a right to counsel and whether the court has a duty to advise him of this right.

The record of the proceedings in the trial court is before this court on a very brief narrative form of bill of exceptions and reveals the operative facts that the defendant was brought before the Municipal Court and was advised that he was charged with operating a motor vehicle without a valid operator's license in violation of the Municipal Code of the city of Toledo; and that he was asked for his plea and, thereupon, entered a plea of guilty. The court pronounced sentence on the defendant. The record shows further that the defendant was not advised by the judge of the Municipal Court that he had the right to obtain counsel and, further, unnecessary to a decision in this case, that other defendants called on the same day on the traffic docket were so advised.

By the express provision of the Traffic Code of the city of Toledo, the violation thereof is a misdemeanor, and counsel for defendant concede that the charge, and conviction of defendant, is for a misdemeanor. The broad proposition urged on appeal is that a defendant charged with a misdemeanor is not only entitled to be advised by the court that he has the right to be represented by counsel, but further that such defendant, if indigent, is entitled to be furnished counsel at the expense of the state or municipality. Counsel for the defendant cite and rely broadly upon the case of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

In the Gideon case the defendant was charged in a Florida state court with a noncapital felony. He appeared without funds and without counsel and asked the court to appoint counsel for him, which was denied on the ground that the state law permitted appointment of counsel for indigent defendants in capital cases only. The facts in that case are unlike the facts in the case at bar, in that the defendant here was not charged with a felony and did not state to the court that he was without funds or ask the court to appoint counsel for him, but voluntarily entered a plea of guilty.

Subsequent to the decision in the Gideon case, the Supreme Court of Florida, in Fish v. State (1964), 159 So.2d 866, held that an indigent defendant, accused of committing a crime which is a misdemeanor only, is not entitled to have counsel appointed to assist him in his defense. The opinion of that case, on page 868, says:

'Since the Gideon case, our Legislature has provided for a public defender to represent indigent defendants in all noncapital felony cases. By limiting the scope of the Act to felonies, the Legislature has, in effect, declared the public policy of this state to be that persons accused of misdemeanors only do not necessarily require the appointment of counsel to assist in their defense. We have carefully read the decision in the Gideon case and find nothing that indicates, conclusively, that it was intended to apply to all crimes-misdemeanors as well as felonies, traffic violations, any infraction of the law for which one is 'haled into court', to quote Mr. Justice Black's language in the opinion. We have also noted the statement of Mr. Justice Harlan, in his opinion concurring in the judgment, that the question of whether the rule of the Gideon case 'should extend to all criminal cases need not now be decided.'

'In view, then, of the legislative background-organic and statutory-of this matter, and in the absence of any clear mandate in the Gideon case to apply its rule to misdemeanors as well as felonies, we do not feel that we are authorized to overturn the legislative declaration of the policy of this state in respect to this matter, referred to above.'

In a later case, Watkins v. Morris (1965), 179 So.2d 348 the Supreme Court of Florida had the same issue before it on a petition for a writ of habeas corpus, whereby the petitioner sought to be released from the Hillsborough County Prison. By an affidavit complaint filed in the Hillsborough County Traffic Court, Watkins was charged on three counts with three offenses under the Florida statutes: (1) driving while intoxicated, (2) reckless driving and (3) leaving the scene of an accident resulting in injury. The court held that the Traffic Court, created under the laws of Florida, is limited in its jurisdiction to traffic violations which constitute misdemeanors, and the offense of driving while intoxicated, under the statute, is a felony, whereas the other two offenses are misdemeanors.

On page 349 in the opinion it is said:

'Petitioner also claims lack of assistance of counsel at his trial. We do not overlook Harvey v. State of Mississippi, 5 Cir., 340 F.2d 263. However, until authoritatively determined to the contrary by the Supreme Court of the United States, the rule in Florida is that there is no absolute, organic right to counsel in misdemeanor trials. Fish v. State, Fla., 159 So.2d 866. Moreover, the petitioner does not claim indigency or inability to have supplied his own counsel.'

In the recent case of Winters v. Beck (1965), 239 Ark. 1151, 397 S.W.2d 364, the Supreme Court of Arkansas denied a petition for writ of habeas corpus and held that there is no duty imposed upon the trial court to appoint counsel for defendant charged with immorality, a misdemeanor under an ordinance of Little Rock, Arkansas; and in the opinion, on page 1152, 397 S.W.2d on page 364, it is said:

'On the strength of Ark.Stat.Ann. § 43-1203 (Repl.1964), the courts of this State have always appointed attorneys to represent indigent defendants in felony cases. Thousands of misdemeanor cases are tried in the Municipal Courts of Pulaski County annually. In most of these cases the defendants are not represented by counsel. But petitioner contends that on the strength of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, it is now the duty of the courts to appoint attorneys for indigents in misdemeanor cases. We do not so construe Wainwright. There, the court was dealing with a felony case where the defendant had been sentenced to five years in the penitentiary. Here, the petitioner, Winters, had 30 days to take an appeal to the Circuit Court. He did not appeal, although the procedure for appealing from the Municipal Court is very simple. The services of an attorney are not required at all.'

A petition for a writ of certiorari in the United States Supreme Court in the same case, Winters v. Beck, 385 U.S. 907, 87 S.Ct. 207, 17 L.Ed.2d 137 (October 18, 1966), was denied. There was dissent by Mr. Justice Stewart, which leaves unresolved by the Supreme Court of the United States the right to counsel in misdemeanor cases, as stated in his dissent:

'The petitioner, an indigent Negro, was arrested on a charge of 'immorality,' a misdemeanor under an ordinance of Little Rock, Arkansas. Later the same day he was brought before the municipal court, where, after pleading not guilty, he was tried, convicted, and sentenced to 30 days in jail and a $254 fine, including costs. He was unable to pay the fine, so his punishment was converted under the Arkansas 'dollar-a-day' statute (Ark.Stat.Ann. § 19-2416 (Repl.1956)) to imprisonment for 9 1/2 months.

'At his trial the petitioner was not represented by counsel. He did not ask for the assistance of counsel and was not informed by the trial judge, or by anybody else, of any right to counsel, appointed or retained. The judge did not advise him of the nature of the charges against him, of the possible penalty, or of his right to make objections, cross-examine witnesses, present witnesses in his own behalf, or to have a trial de novo in the county circuit court under Ark.Stat.Ann. §§ 44-115, 509 (Repl.1964). Not surprisingly, the petitioner did not object to the evidence offered by the prosecution, did not cross-examine the prosecution witnesses, did not present witnesses in his own behalf, and did not exercise his right to a trial de novo in the county circuit court. Also not surprisingly, the petitioner did not question the vagueness of the charge against him nor the validity of converting a sentence of 30 days into one of 9 1/2 months solely because of his poverty.

'From the prison farm where he was incarcerated, the petitioner applied to the...