State v. Hackett

Decision Date17 December 2020
Docket NumberNo. 2019-0601,2019-0601
Citation164 Ohio St.3d 74,172 N.E.3d 75
CourtOhio Supreme Court
Parties The STATE of Ohio, Appellee, v. HACKETT, Appellant.

Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M. Rivera, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, for appellant.

Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and Stephen P. Carney, Deputy Solicitor General, urging affirmance for amicus curiae, Attorney General Dave Yost.

DeWine, J. {¶ 1} In his criminal trial, David Hackett waived his right to counsel under the Sixth Amendment to the United States Constitution and chose to represent himself. After accepting Hackett's waiver, the trial court appointed "standby counsel" to be available to assist Hackett. Hackett now contends that the trial court violated his rights under the Sixth Amendment by limiting the role of this standby counsel. We conclude that because the Sixth Amendment provides no right to standby counsel, Hackett's rights under that amendment were not violated.

Facts and Procedural History

Hackett chooses to represent himself at trial

{¶ 2} Hackett was charged with the kidnapping, rape, and murder of a woman whose nearly naked body was discovered on an access road in Youngstown, Ohio. She had been stabbed multiple times. The court appointed counsel to represent him.

{¶ 3} Hackett was scheduled for a jury trial in mid-January 2017. On the day of trial, Hackett asked the court to be allowed to represent himself. The court held a hearing and engaged Hackett in an extended discussion to ensure that Hackett understood the ramifications of giving up his right to an attorney, as well as the possible penalties he would face if convicted. The judge warned Hackett that his lack of familiarity with trial procedures would likely make it harder for him to present his defense. Despite the judge's cautionary words, Hackett was undeterred. The court granted Hackett's request, continued the trial, and informed Hackett that it would appoint his current attorney, Louis DeFabio, as standby counsel. The court advised Hackett: "[I]f during the trial you recognize that you're in over your head and want Attorney DeFabio to jump in at that point in time, I would allow that, but he may be unable to repair any damage that you may have done acting as your own attorney * * *."

{¶ 4} In late March, Hackett filed a motion for "full assistance of standby counsel." In his motion, Hackett asked the court to have DeFabio seated at counsel table, to actively assist him in navigating courtroom protocol, "advocate on the record with respect to procedural matters," and "proactively engage issues." At a hearing on the motion, the trial court expressed the view that Hackett was requesting improper hybrid representation and on this basis denied the motion. The court explained, "You have the right either to appear pro se or to have counsel, but you have no corresponding right to act as co-counsel." At the same hearing, DeFabio clarified his understanding of his role as standby counsel. He said that he would look over available evidence and stay on top of the issues in the case so that he could (1) advise Hackett on how to get specific items into evidence and (2) take over if Hackett wanted him to. The court did not disagree with DeFabio's assessment of his function.

{¶ 5} Hackett's trial had been rescheduled to late May. Just prior to voir dire, Hackett asked the court, "[H]ow do you define the responsibilities or the duties of standby counsel?" In response, the trial judge said, "If you decide now or during the trial that you are in over your head and ask me to have [standby counsel] step in, then he would come in as your attorney. It is nothing more and nothing less than that." To this, Hackett responded, "So in essence, the only time he have [sic] a voice, then, is if I say I relinquish my defense as pro se." The judge responded: "Not your defense. That you relinquish your choice to proceed pro se." Hackett then asked, "[I]f * * * we have a trial right now and I wish to present evidence and I don't know how, he can do nothing then, right?" The court responded, "Correct." And the judge again stated that what Hackett was asking for was improper hybrid representation, which was not allowed. Hackett claims that these statements immediately prior to trial show that the trial court limited standby counsel's role in an improper manner.

The court of appeals affirms Hackett's convictions

{¶ 6} A jury found Hackett guilty of all the charged offenses, and he appealed to the Seventh District Court of Appeals. Relevant here, he argued that the trial court had unconstitutionally limited standby counsel's role by not allowing counsel to explain courtroom procedures and rules to him. See 2019-Ohio-1091, 2019 WL 1402894, ¶ 44. The court of appeals did not squarely address whether limits on standby counsel's role could ever present a constitutional concern. Instead, the court of appeals concluded that the record did not demonstrate that the trial court prevented Hackett from obtaining advice from standby counsel about courtroom procedures, noting that Hackett had failed to cite any portions of the transcript indicating that standby counsel's role was impermissibly limited. Id. at ¶ 44, 62. The court of appeals explained that the trial court's statement immediately prior to trial, "when considered in isolation, might be seen as an indication" that Hackett could not ask DeFabio for advice on how to introduce evidence at trial but that the statement should be considered in the context of the trial court's other instructions and of Hackett's request for hybrid representation. Id. at ¶ 59-60. The court of appeals found nothing in the pretrial statements from the trial court to indicate that Hackett was prevented from seeking DeFabio's advice on evidentiary or procedural questions. Id. at ¶ 58. And the court of appeals emphasized that the trial court took no exception to DeFabio's declaration that part of his role was to advise Hackett about how to get things admitted into evidence. Id. at ¶ 56. Further, the court noted that, although it was unable to tell from the record whether Hackett spoke to DeFabio during breaks, the record was clear that Hackett never asked for a recess to speak to counsel. Id. at ¶ 61. It thus concluded that based on its understanding of the typical role of standby counsel, as established by other Ohio appellate-court decisions, "the trial court did not improperly limit the role of standby counsel." Id. at ¶ 48-51, 61-62.

{¶ 7} We accepted Hackett's discretionary appeal on the following proposition of law: "Appellant was denied his constitutional Sixth Amendment right to counsel when the trial court incorrectly limited the role of standby counsel." See 156 Ohio St.3d 1470, 2019-Ohio-2953, 126 N.E.3d 1185.


{¶ 8} We are tasked with answering a narrow question of law—Does the Sixth Amendment to the Constitution of the United States prevent a trial-court judge from limiting the role of standby counsel? As we explain, the answer to that question is no. The reason is simple. There is no Sixth Amendment right to any assistance from standby counsel. Hence, limiting the role of standby counsel, in and of itself, cannot violate the Sixth Amendment.

A court may choose to appoint standby counsel when a defendant opts to represent himself

{¶ 9} In Faretta v. California , the United States Supreme Court held that a criminal defendant has a constitutional right to self-representation. 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). But the court also noted that a trial court may "appoint a ‘standby counsel to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." Id. at 834, fn. 46, 95 S.Ct. 2525. This court also has held that after a defendant validly waives the right to counsel, a trial court is "permitted to appoint standby counsel to assist the otherwise pro se defendant." State v. Martin , 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 28.

{¶ 10} But we have cautioned that when a court appoints standby counsel, there are limits on how actively standby counsel can be involved. Id. at ¶ 33. Instances where standby counsel is overly involved in the proceedings and functions essentially as co-counsel with the self-representing defendant—so-called "hybrid representation"—pose several potential problems. Id. First, hybrid representation creates confusion as to who is the ultimate decision-maker. This may lead to ethical concerns for counsel if there is disagreement over trial strategy and presents courtroom-management challenges for the trial judge. Id. Second, hybrid representation raises serious questions about whether the defendant is representing himself or is represented by counsel, because there is no clear boundary line between hybrid representation and self-representation. Id. at ¶ 34-35. This boundary problem complicates the question whether the defendant has waived the right to representation. And third, as other courts have noted, if standby counsel is too actively involved, a defendant's right to self-representation may be violated. See Simpson v. Battaglia , 458 F.3d 585, 597 (7th Cir.2006).

It is well established that there is no constitutional right to standby counsel

{¶ 11} As we have explained, courts are permitted to appoint standby counsel to aid a defendant who chooses to exercise his right to represent himself. But the fact that a court is permitted to appoint standby counsel does not mean that a defendant has a constitutional right to standby counsel.

{¶ 12} The Sixth Amendment guarantees a defendant the right "to have the Assistance of Counsel for his defence." A defendant who chooses to represent himself must explicitly waive this right....

To continue reading

Request your trial
54 cases
  • State v. McAlpin
    • United States
    • Ohio Supreme Court
    • May 12, 2022
    ...involvement beyond what would typically be necessary for standby counsel. See, e.g., State v. Hackett, 164 Ohio St.3d 74, 2020-Ohio-6699, 172 N.E.3d 75, ¶ (Stewart, J., concurring) (standby counsel should assist in overcoming procedural or evidentiary obstacles and help ensure the defendant......
  • State v. McAlpin
    • United States
    • Ohio Supreme Court
    • May 12, 2022
    ...defendant who chooses to represent himself or herself has no Sixth Amendment right to standby counsel. State v. Hackett , 164 Ohio St.3d 74, 2020-Ohio-6699, 172 N.E.3d 75, ¶ 8. However, when a trial court does appoint standby counsel, there are limits on how involved counsel may be while as......
  • State v. Pulley
    • United States
    • Ohio Court of Appeals
    • September 15, 2023
    ... ... N.E.2d 227, ¶ 24. "Once the right to counsel is ... properly waived, trial courts are permitted to appoint ... standby counsel to assist the otherwise pro se ... defendant." Id. at ¶ 28. However, ... "there is no constitutional right to standby ... counsel." State v. Hackett, 164 Ohio St.3d 74, ... 2020-Ohio-6699, 172 N.E.3d 75, ¶ 13 ...           {¶ ... 72} If serious offenses are involved as defined by ... Crim.R. 2(C), "when a criminal defendant elects to ... proceed pro se, the trial court must demonstrate substantial ... compliance with Crim.R ... ...
  • State v. Carbaugh
    • United States
    • Ohio Court of Appeals
    • April 18, 2023
    ...that a plain error affected his substantial rights." (Emphasis sic.) Id. at ¶ 14. State v. Hackett, 164 Ohio St.3d 74, 2020-Ohio-6699, 172 N.E.2d 75, {¶66} The Ohio Supreme Court reviewed the plain error standard of review to be utilized by appellate courts, Under this standard, the defenda......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT