State v. Glasure
| Decision Date | 02 February 1999 |
| Docket Number | No. 665.,665. |
| Citation | 724 NE 2d 1165,132 Ohio App.3d 227 |
| Parties | The STATE of Ohio, Appellee, v. GLASURE, Appellant. |
| Court | Ohio Court of Appeals |
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John T. Smiley, Carroll County Prosecuting Attorney, and Donald R. Burns, Jr., Assistant Prosecuting Attorney, for appellee.
Robert D. Head, Carroll County Assistant Public Defender, for appellant.
John A. Glasure, appellant, appeals his conviction of defrauding creditors, in violation of R.C. 2913.45(A)(1), a misdemeanor of the first degree. For the following reasons, the judgment of the Carroll County Court is reversed and this cause is remanded.
On August 19, 1994, a complaint was filed against appellant, charging him with violation of R.C. 2913.45(A)(1) and alleging that he had defrauded creditors. He was subsequently arraigned, entered a plea of not guilty, and requested court-appointed counsel. Attorney William McLane from the Public Defender's Office was appointed as trial counsel via the court's September 13, 1994 judgment entry. Due to problems between Attorney McLane and appellant, which were brought to the attention of the trial court, Attorney McLane was excused as counsel as of June 26, 1995, and Attorney John Gartrell was appointed to take his place. Despite the fact that counsel had been provided for appellant, he chose to file numerous pro se motions and requests during the period of time leading up to trial.
Subsequently, on September 11, 1995, Attorney Gartrell filed a motion to withdraw as counsel, as appellant had failed to attend three scheduled appointments that had been established for the purpose of preparing his case for trial. The court issued hearing notices on the motion to all parties, including appellant.
On September 28, 1995, a hearing on Gartrell's motion to withdraw was held, but appellant failed to appear. The court heard testimony from Gartrell, who explained that he had met with appellant when he was first appointed, but that appellant had failed to appear for three scheduled appointments after their initial meeting. In fact, Gartrell advised the trial judge that he sent a letter to appellant rescheduling the appointment for a third time and warned appellant that he would file a motion to withdraw from the case if he failed to keep the appointment. Gartrell also indicated to the court that he had all of the discovery completed for trial. Moreover, at the hearing on Gartrell's motion to withdraw, the assistant prosecuting attorney brought to the court's attention that appellant had failed to show the court that he was entitled to court-appointed counsel.
In its October 4, 1995 entry regarding the motion to withdraw the trial court stated:
On October 6, 1995, the court's entry and the appropriate affidavit of indigency and financial statement forms were personally served upon appellant by the Carroll County Sheriff's Department. However, the court never received the completed documents from appellant. Accordingly, on October 23, 1995, the court issued another judgment entry, in which it noted:
"The Defendant having failed to establish his eligibility for court appointed counsel, the Court hereby discharges the Public Defender's Office from representing, any further, the Defendant."
This entry was again personally served upon appellant on October 25, 1995, thereby notifying appellant that no one from the Public Defender's Office would be representing him in the trial scheduled to occur fourteen days later.
On November 8, 1995, appellant appeared in court for the scheduled trial. That morning, appellant filed several pro se motions. One motion read as follows:
During a discussion prior to trial, appellant admitted that he never requested that his counsel return "papers and property" mentioned in his motion. He stated that he presumed that counsel would automatically turn those documents over to him.
Immediately prior to the commencement of trial, the court advised appellant that he had the right to counsel and that counsel was "of the utmost importance." However, due to the fact that appellant failed to provide the court with the affidavit of indigency and the financial statement to determine whether he qualified for the service of the Public Defender, the court had to discharge the Public Defender's Office. Furthermore, the trial court judge asked appellant whether he understood how important it was to have an attorney, to which appellant replied, "Absolutely." Appellant began to tell the court that he did not trust his two prior attorneys and that he did not fill out the affidavit of indigency and the financial statement because he had already given a statement to the court that he had no income after a drunk driver hit his truck and he could no longer work. He also stated that he had not attempted to secure an attorney because he had no money to hire one. The trial court judge specifically asked appellant whether he wished to waive his right to counsel, and appellant replied, "No. I never waived my right to have counsel."
Even though appellant was not represented by counsel, the court decided to proceed with the trial after the following colloquy took place:
After the trial, the jury returned a guilty verdict on the charged offense. As a result, appellant was sentenced to six months' incarceration and fined $1,000. The trial court entered its judgment levying the sentence on December 15, 1995. Appellant made timely appeal from this judgment on December 18, 1995.
Appellant presents a single assignment of error for this court's review, which reads:
"The trial court erred in refusing to appoint counsel to represent appellant thereby depriving appellant of his right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution; Section 10, Article I of the Ohio Constitution; and Crim.R. 44."
Appellant phrases the issue presented to the court as follows:
"When a defendant in a criminal case is indigent, cannot afford to hire counsel, requests the appointment of counsel, and asserts his right to counsel does the court err in refusing to appoint counsel?"
The crux of appellant's argument is that he never waived his right to counsel. Appellant cites Johnson v. Zerbst (1938), 304 U.S. 458, 462-463, 58 S.Ct. 1019, 1022-1023, 82 L.Ed. 1461, 1465-1466; Argersinger v. Hamlin (1972), 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530; and Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, for the proposition that the Sixth Amendment guarantee is fundamental and is a requirement for anyone accused of a crime who stands in jeopardy of life or liberty. Moreover, appellant argues that although a defendant has the ability to represent himself, any waiver of the right to counsel must be made voluntarily, knowingly, and intelligently. Patterson v. Illinois (1988), 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261; Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378. Appellant uses the Supreme Court of Ohio's decision in State v. Gibson (1976), 45 Ohio St.2d 366, 74 O.O.2d 525, 345 N.E.2d 399, and the language of Crim.R. 44 to give credence to his argument. Appellant also claims that assuming there was a waiver, the court should have obtained it in writing pursuant to Crim.R. 2(C) and as is delineated in Crim.R. 44(C).
Appellant alleges that the trial court had a duty to explain the difficulties of trying a case pro se, which never occurred. Moreover, appellant claims that the court had a duty to inquire during a full and complete hearing as to whether appellant could have afforded counsel. Appellant states that there is no case law to establish that the completion of an...
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...may vary from that which appellant views as prudent is not sufficient to warrant the substitution ofcounsel." State v. Glasure (1999), 132 Ohio App.3d 227, 239, 724 N.E.2d 1165; State v. Evans(2003), 153 Ohio App.3d 226, 235-36, 2003-Ohio-3475 at ¶31, 792 N.E.2d 757,764; State v. Newland, 4......
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