Summary
In McDonald v. State (1991), 62 Ohio Misc.2d 262, the trial judge ruled untimely a defendant's request to represent himself after meaningful trial proceedings had commenced while defendant was represented by counsel and therefore denied the request.
Summary of this case from State v. VrabelOpinion
No. 89CRO37386.
Decided January 8, 1991.
Andre McDonald, pro se. Gregory A. White, Prosecuting Attorney, and Dennis P. Will, for respondent.
This cause comes on for consideration upon the defendant-petitioner filing a petition for post-conviction relief. The petitioner actually submitted several filings, which are summarized below.
Petition filed October 15, 1990
In his first filing the petitioner requests relief based on the following allegations:
(1) Counsel failed to advise the defendant that he had a constitutional right to represent himself;
(2) Counsel was ineffective for failing to advise petitioner of the right of self-representation;
(3) Counsel, acting in collusion with the court, failed to advise the petitioner of his right to self-representation;
(4) Perjury committed at the trial by Eric Mason;
(5) Ineffective assistance of counsel because counsel failed to investigate the case;
(6) Ineffective assistance of counsel because counsel did not advise petitioner of his right to a direct or delayed appeal.
In addition, the petitioner requested an evidentiary hearing and submitted a poverty affidavit.
Filing of November 13, 1990
In his second filing the petitioner requested a default or summary judgment on his petition because the state of Ohio had not responded to his petition.
Filing of November 16, 1990
The petitioner again requested an evidentiary hearing and moved for the appointment of counsel. The petitioner also alleged a conspiracy against him by the court and the Lorain County prosecutor.
The petitioner submitted an affidavit alleging, among other things, that he made only one visit to the residence where he was arrested, he had no knowledge of drug dealing at the residence and the money belonging to him was earned at legitimate employment and not as the result of drug sales.
Filing of December 24, 1990
Titled by the petitioner as a "motion for leave to amend petition," this filing repeated some of the allegations made in previous filings. The petitioner again requested an evidentiary hearing and submitted a fourth poverty affidavit.
The court will consider all of the filings together as a single petition for post-conviction relief.
The state of Ohio filed a brief in opposition on December 5, 1990.
Findings of Fact
The petitioner was indicted by the Lorain County Grand Jury on June 13, 1989 for Count I, possession of criminal tools, a felony of the fourth degree, and Count II, aggravated trafficking in drugs, a felony of the second degree.
On June 20, 1989, the petitioner was arraigned and entered pleas of not guilty. Attorney Michael Boylan was appointed to represent the petitioner.
Attorney Boylan, on petitioner's behalf, filed a motion for discovery, a motion to compel discovery, and a motion for a continuance of the September 27, 1989 trial date. Attorney Boylan was provided with a bill of particulars by the state of Ohio.
The record does not indicate the status of plea negotiations, if any, between petitioner's counsel and the state.
The case proceeded to trial on October 30, 1989. Attorney Boylan actively participated in the selection of the jury, opening statement for the defendant, cross-examination of the witnesses for the state of Ohio, objections to some evidence sought to be admitted by the state and final argument to the jury. The counsel for petitioner also moved for acquittal pursuant to Crim.R. 29.
The petitioner did not testify in his own behalf and no witnesses were called on behalf of the petitioner.
On October 31, 1989, after deliberating, the jury found the petitioner guilty of possession of criminal tools and aggravated trafficking in drugs, as charged in the indictment. On the same day, the petitioner was sentenced to a term of incarceration of one and one-half years for Count I, possession of criminal tools, consecutive to an indefinite term of five to fifteen years for Count II, aggravated trafficking in drugs, with three years to be served as actual incarceration. Having been found indigent, the petitioner was not ordered to pay the $5,000 mandatory fine.
The record further indicates the court advised the petitioner of his right to appeal and attorney Boylan was appointed for purposes of appeal. Attorney Boylan filed a notice of appeal, praecipe and motion for transcript on November 30, 1989. Upon the court reporter's request, the court extended to January 22, 1990, the time required for the filing of the transcript of proceedings. On May 31, 1990, the Ninth District Court of Appeals, sua sponte, dismissed petitioner's appeal, Case No. 89-004720, due to the failure of the petitioner to file his brief.
United States currency in the amount of $816.12 seized from the petitioner by the Elyria Police Department was forfeited as contraband and ordered into law enforcement trust funds, upon the court's order of July 19, 1990.
In his petition for post-conviction relief, the petitioner has not filed any evidentiary documents for the court to consider, other than the affidavits signed by the petitioner.
Conclusions of Law
The primary thrust of the petition under consideration here is the allegation of ineffective assistance of counsel.
Petitioner's allegation that his counsel failed to advise him of his right to a direct or delayed appeal is without merit, as a direct appeal was filed by attorney Michael Boylan on November 30, 1989. The petitioner does not put forth a claim that his constitutional rights were violated because of the failure to file a brief in the court of appeals and the subsequent dismissal of the appeal and the petitioner does not offer any information as to why the brief was not filed.
This court finds no basis for petitioner's allegation that a conspiracy exists against him, with the state of Ohio and the court of common pleas being the conspirators. This claim, by the petitioner, is totally unsubstantiated.
The court finds no merit in petitioner's allegation that the court and trial counsel, acting collusively, denied petitioner his right to self-representation. This claim by the petitioner is unsubstantiated.
Petitioner's claim that he was convicted upon the perjury of Eric Mason, a co-defendant, is unsupported by the record. The only evidence that Mason committed perjury is the bald assertion made by the petitioner in his affidavit.
Turning to petitioner's allegations that he was not advised of his right of self-representation, the United States Supreme Court, in Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, held that a defendant in a state criminal trial has a federal constitutional right to represent himself without counsel if he voluntarily and intelligently elects to do so.
In Faretta, the Supreme Court failed to state at what point during pending criminal proceedings the right of self-representation must be exercised. The court knows of no reported decisions in Ohio which specify when the right must be asserted. Therefore, the court will take notice of appellate decisions in other jurisdictions.
In New York, the defendant must make his motion or request to represent himself prior to the opening statement of the prosecutor. See People v. Reason (1975), 37 N.Y.2d 351, 372 N.Y.S.2d 614, 334 N.E.2d 572. In Arkansas, the Supreme Court has ruled the same way. See Barnes v. State (1975), 258 Ark. 565, 528 S.W.2d 370.
The Supreme Court of California held, in People v. Windham (1977), 19 Cal.3d 121, 137 Cal.Rptr. 8, 560 P.2d 1187, that in order to invoke the unconditional right of self-representation a defendant in a criminal trial should make an unequivocal assertion of the right within a reasonable time prior to the commencement of trial.
If the motion is timely made, the trial court must allow a defendant to represent himself, regardless of how foolish a decision it might appear to be, so long as the defendant voluntarily and intelligently elects to proceed pro se. Id.
The California court further held that once the defendant has chosen to proceed to trial with counsel, demands by the defendant that his counsel be discharged and he be allowed to assume the defense are left to the sound discretion of the trial court, which does not have to honor the defendant's demand. See, also, United States v. Denno (C.A.2, 1965), 348 F.2d 12, where the Second Circuit Court of Appeals held that a defendant in a criminal case has an unqualified right to act as his own lawyer if the right is invoked prior to the start of trial.
A ruling similar to those cited above has recently been made by the Nevada Supreme Court. See Lyons v. State (1990), 106 Nev. 438, 796 P.2d 210.
This court finds that the petitioner waived his right to self-representation when he proceeded to trial with his appointed counsel. A review of the entire record before the court shows that the petitioner was not prejudiced by being represented at trial by appointed counsel. The court further finds that if, in fact, trial counsel did not advise the petitioner of his right to self-representation, this is not tantamount to ineffective assistance of counsel.
Turning to petitioner's claim that his counsel failed to investigate the case, there is no evidence before the court that this is true, other than the unsupported allegation made by the petitioner.
It is well settled in Ohio that in a petition for post-conviction relief, which asserts ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness. State v. Jackson (1980), 64 Ohio St.2d 107, 18 O.O.3d 348, 413 N.E.2d 819.
See also State v. Kapper (1983), 5 Ohio St.3d 36, 5 OBR 94, 448 N.E.2d 823, and State v. Pankey (1981), 68 Ohio St.2d 58, 22 O.O.3d 262, 428 N.E.2d 413.
The United States Supreme Court has established a two-step process for evaluating an allegation of ineffective assistance of counsel. In Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, the court concluded:
"* * * First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. * * *" See, also, State v. Hester (1976), 45 Ohio St.2d 71, 74 O.O.2d 156, 341 N.E.2d 304, and State v. Smith (1987), 36 Ohio App.3d 162, 521 N.E.2d 1112.
In State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, the Ohio Supreme Court held that counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance.
Taking into consideration all of the applicable law and the record of this case, the petitioner has failed to meet the threshold burden of showing that the performance of his appointed counsel was deficient.
Having failed to demonstrate that counsel's performance was deficient, the petitioner cannot claim he was therefore prejudiced. And, having failed to show prejudice, the petitioner is not entitled to an evidentiary hearing.
This court finds that, as a matter of law, there was not such a denial or infringement of the rights of the petitioner as to render the convictions in this case void or voidable under the Constitutions of Ohio and the United States. The petition for post-conviction relief is therefore denied.
This court has taken into consideration, in addition to those authorities cited above, the decisions in State v. Martin (1983), 20 Ohio App.3d 172, 20 OBR 215, 485 N.E.2d 717; State v. Ledger (1984), 17 Ohio App.3d 94, 17 OBR 156, 477 N.E.2d 643; State v. Poland (1984), 16 Ohio App.3d 303, 16 OBR 335, 475 N.E.2d 794; State v. Wilcox (1984), 16 Ohio App.3d 273, 16 OBR 298, 475 N.E.2d 516; State v. Mitchell (1988), 53 Ohio App.3d 117, 559 N.E.2d 1370; and State v. Brewer (1990), 48 Ohio St.3d 50, 549 N.E.2d 491.
A petitioner in post-conviction relief proceedings has no right to counsel. See State v. Mapson (1987), 41 Ohio App.3d 390, 535 N.E.2d 729. The petitioner's motion for the appointment of counsel is denied.
Petitioner's motion for default/summary judgment is denied.
The court grants the petitioner's motion to proceed without paying costs, on the basis of several poverty affidavits filed.
The petitioner's request to amend his original petition is granted, and as previously indicated, the court considered the several filings as a single petition for post-conviction relief.
As indicated previously, the petition for post-conviction relief is denied in all other respects.
So ordered.