State v. Wolf, 91-L-013

• Decision Date: 02 April 1991
• Docket Number: No. 91-L-013,91-L-013
• Citation: 595 N.E.2d 405,71 Ohio App.3d 740
• Parties: The STATE of Ohio, Appellee, v. WOLF, Appellant. *
• Court: Ohio Court of Appeals

Page 740

71 Ohio App.3d 740

595 N.E.2d 405

The STATE of Ohio, Appellee, v. WOLF, Appellant. ^*

No. 91-L-013.

Court of Appeals of Ohio, Eleventh District, Lake County.

Decided April 2, 1991.

Steven C. LaTourette, Pros. Atty., and Ariana Tarighati, Painesville, for appellee.

Ralph C. Buss and Brett J. Plassard, Painesville, for appellant.

NADER, Judge.

Appellant, David A. Wolf, was indicted for aggravated murder, murder and abuse of a corpse, with a prior violence specification, in October 1990. Appellant originally requested that the court appoint an attorney for him. The Lake County Public Defender's Office was assigned the matter on October 19, 1990.

On December 3, 1990, appellant requested appointment of counsel of his own choice: attorneys Buss and Plassard. On December 28, 1990, the trial court permitted the public defender to withdraw and appointed attorneys Buss and Plassard. By judgment entry dated January 4, 1991, the trial court stated that the appointment of private counsel was pro bono and no funds would be expended for attorney fees. A notice of appeal was filed January 28, 1991.

Although appellant requested findings of fact and conclusions of law, and requested expert assistance on January 9, 1991, the court did not issue these conclusions until February 6, 1991. The request for expert assistance was denied, and the court explained its reasons for denying attorney fees at public expense. No appeal is made from the February 6, 1991 entry.

The issue before the court at this time is whether the trial court's ruling of January 4, 1991, is a final appealable order to invoke the jurisdiction of this court.

The trial court's decision, dated January 4, 1991, must come within the parameters of R.C. 2505.02 to establish this court's jurisdiction. R.C. 2505.02 reads, in part:

"An order that affects a substantial right in an action which in effect determines the action and prevents a judgment, an order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment, or an order that vacates or sets aside a judgment or grants a new trial is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial."

A party contending that a final appealable order exists, in a situation that does not determine the action or prevent judgment, must establish two requisite factors. First, a substantial right must be affected. Second, the trial court's decision must be made in a special proceeding. A prime determinant as to whether an order is one made in a special proceeding is the availability of a remedy after judgment. "A ruling which implicates a claim of right that would be irreparably lost if its review need await final judgment is likely to be deemed a final order." Berbaum v. Silverstein (1982), 62 Ohio St.2d 445, 447, 16 O.O.3d 461, 463, 406 N.E.2d 532, 534-535. A special proceeding may also be defined as an action which has been brought about by specific legislation or an action not recognized at common law. Dayton Women's Health Ctr. v. Enix (1990), 52 Ohio St.3d 67, 555 N.E.2d 956 (Douglas, J., dissenting). Once the need for immediate review is established, that factor must be balanced against the harm to the prompt and orderly disposition of litigation and the consequent waste of judicial resources which will result. Amato v. General Motors Corp. (1981), 67 Ohio St.2d 253, 21 O.O.3d 158, 423 N.E.2d 452.

Appellant contends that postponing an appeal until after trial will deprive him of his right to personally select his own attorney. There is no doubt that appellant is entitled to counsel. However,

"The right of an accused to select his own counsel is inherent only in those cases wherein such accused is employing the counsel himself. The right to have counsel assigned by the court does not impose a duty on the court to allow the accused to choose his own counsel; the selection is within the discretion of the court." Thurston v. Maxwell (1965), 3 Ohio St.2d 92, 93, 32 O.O.2d 63, 64, 209 N.E.2d 204, 205.

Appellant contends that by statute, R.C. 120.33, the General Assembly has given him the right to choose his attorney. R.C. 120.33 is not conclusive as to this issue.

Those powers which are necessary to the orderly and efficient exercise of jurisdiction "from both their nature and their ancient exercise, must be regarded as inherent." State ex rel. Butler v. Demis (1981), 66 Ohio St.2d 123, 129, 20 O.O.3d 121, 124, 420 N.E.2d 116, 120. The power to appoint attorneys for indigents is an inherent power of the courts as such appointments are necessary for the effective exercise of jurisdiction. Id. The power to appoint counsel is, in addition, an exercise of the supervisory powers of the court, as the duty to appoint counsel for indigents is constitutionally imposed. Id., citing Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. The General Assembly has provided indigents with a vehicle to select counsel through the enactment of R.C. 120.33. But because such power is inherent within the judiciary, R.C. 120.33 cannot deprive the court of its ability to appoint counsel.

" * * * The power to appoint counsel reposes in the courts, however, not in the General Assembly or in the parties appearing before the court. The power being inherent in the judiciary, the General Assembly has no power to take it therefrom and place it in the hands of the parties.

" * * *

"We hold that the appointment of counsel by the court to represent indigent parties, where such appointment and representation is constitutionally mandated is a necessary function of the court in the exercise of its jurisdiction. The power to so appoint counsel is therefore an inherent power of the court which cannot be impeded by the General Assembly." Demis, supra, 66 Ohio St.2d at 132, 20 O.O.3d at 126, 420 N.E.2d at 122.

Although R.C. 120.33 has been amended subsequent to Demis, this does not alter the court's rationale with respect to inherent powers. The appointment power inherently resides with the judiciary, independent of legislative authority. The constitutional distribution of powers prevents the legislature from interfering with that inherent power. Id. at 132, 20 O.O.3d at 126, 420 N.E.2d at 121. Thus, R.C. 120.33 provides an alternative which the trial court may, in its discretion, permit. The statute does not and cannot preclude appointment of counsel by the court. In the present matter, appellant does not have a substantial right to select an attorney, as the power of appointment is inherent with the trial court. Without the implication of a substantial right, there is not yet a final appealable order to invoke the appellate jurisdiction of this court under R.C. 2505.02.

Appellant has also failed to establish that appointment of counsel is a special proceeding for purposes of R.C. 2505.02. The prime consideration becomes the availability of a remedy, balanced against the need for prompt and orderly disposition of litigation. Tilberry v. Body (1986), 24 Ohio St.3d 117, 24 OBR 308, 493 N.E.2d 954. Where a substantial right would be irretrievably lost, or a potential error could never be fully corrected, a special proceeding is established. Celebrezze v. Netzley (1990), 51 Ohio St.3d 89, 554 N.E.2d 1292. Thus, even where a remedy is less than ideal, but the possible cost to the judicial system of appeal is greater, a special proceeding will not be acknowledged. Tilberry, supra.

In the instant case, the required prompt disposal of litigation outweighs the inconvenience to appellant, or to appellant's counsel. As previously discussed, appellant has not been denied a substantial right. Thurston, supra. Appellant will be afforded the continued representation of attorneys Buss and Plassard, or appointed counsel from the public defender's office. The fee to which counsel is entitled, if any, may be awarded after trial. Any potential error with regard to fees may be corrected after trial. A special proceeding has not been established. Therefore, the matter is not a final appealable order under R.C. 2505.02.

The Ohio Supreme Court has alluded to the proposition that appellant must wait until after trial to perfect his appeal. Demis. In Demis, relator-appellant proceeded in mandamus to compel the trial judge to appoint counsel of relator's choice. The court stated that without recourse in mandamus appellant would have to wait until after trial to appeal the appointment of counsel issue:

"If * * * [respondents] must wait for an appeal to establish their alleged right to have [relator] appointed as their legal counsel, they will be denied the opportunity to have the attorney-client relationship of their own choosing throughout the course of the adjudication and disposition of their cases." Id., 66 Ohio St.2d at 124, 20 O.O.3d at 122, 420 N.E.2d at 117.

In mandamus, however, the court must look to the adequacy of the remedy. "The mere existence of another remedy does not bar the issuance of a writ of mandamus." Id. at 124, 20 O.O.3d at 122, 420 N.E.2d at 117, citing State ex rel. Emmich v. Indus. Comm. (1947), 148 Ohio St. 658, 36 O.O. 265, 76 N.E.2d 710. The court thus concluded that, as there was not an adequate remedy, the action was procedurally proper. However, the writ was ultimately denied on the substantive issue.

"Where a court has discretion to act, mandamus will not lie to control the exercise of that discretion, even if abused. State ex rel. Sawyer v. O'Connor (1978), 54 Ohio St.2d 380 [8 O.O.3d 393, 377 N.E.2d 494]; R.C. 2731.03. Where a court has discretion to act, its only clear legal duty is to exercise that discretion. Further, mandamus will not issue to control the exercise of inherent power. State ex rel. Welsh v. Medical Board (1945), 145 Ohio St. 74 [30 O.O. 287, 60 N.E.2d 620].

"Accordingly, we find respondent Judge * * * was under no clear legal duty to enter the name of relator * * * in the court's...