Summary
In Tymcio, the Supreme Court of Ohio held that the trial court in a criminal case must inquire fully into the circumstances surrounding an accused's inability to obtain counsel and, consequently, the accused's need for assistance in employing counsel or for receiving court-appointed counsel.
Summary of this case from State v. AlbertOpinion
No. 74-456
Decided April 2, 1975.
Criminal procedure — Right to appointed counsel — Eligibility — Determined, how — Redetermination of eligibility may not be foreclosed — Duty of trial court.
1. The right to the assistance of court-appointed counsel in a criminal case turns upon the inability to obtain counsel. The entitlement depends, not upon whether the accused ought to be able to employ counsel, but whether he is in fact "unable to employ counsel."
2. A preliminary determination of indigency does not foreclose a redetermination of eligibility for assigned counsel when, at a subsequent stage of a criminal proceeding, new information concerning the ability or inability of the accused to obtain counsel becomes available.
3. It is the duty of the trial court in a criminal case to inquire fully into the circumstances impinging upon an accused's claimed inability to obtain counsel and his consequent need for assistance in employing counsel, or for the assistance of court-appointed counsel.
APPEAL from the Court of Appeals for Portage County.
On April 22, 1973, Theodore Tymcio, appellant herein, was arrested and charged with aggravated assault, in violation of R.C. 2901.241. At his arraignment on May 11, 1973, while represented by counsel, he pleaded not guilty and was released on bond. On May 25, at a hearing scheduled to consider defendant's motion for a bill of particulars, defendant's counsel stated that he had not been paid, requested that he be relieved, and suggested that the defendant desired appointed counsel. The court relieved counsel, heard the question of the defendant's indigency, determined the issue adversely to the defendant, and denied the request for appointed counsel. The case was assigned for trial on June 25, 1973.
On that date, the defendant appeared for trial and the following colloquy occurred:
"By the Court: Mr. Tymcio, do you have counsel here?
"Mr. Tymcio: No, I don't, and I would like to make a request for court appointed counsel. I have no funds and I made attempts to borrow the money at The Second National Bank, the First National Bank and Gougler's Credit Union. I went to several attorneys, * * * and I was turned down without cash in advance.
"* * *
"By the Court: The court has no other course open in view of the determination by Judge Jones on May 25th that you were not indigent and were able to employ counsel, and if you are unwilling to do it, you have the right to go ahead and try your own case in the absence of counsel.
"Mr. Tymcio: I said I wasn;t trying it. I am asking for a court appointed counsel, and let this court check into it and they will see that I have no means.
"By the Court: The court can't check into this because Judge Jones has already determined that you are able to hire counsel. We will have to go forward with this trial, Mr. Tymcio.
"Mr. Tymcio: I have tried, and there is no possible way.
"By the Court: The court knows from his personal observation of you in heretofore cases that were tried that you have had some experience in being charged with offenses against the law. You are not thoroughly unfamiliar with the procedure, the court knows that because I went through a trial with you some months or years ago.
"Mr. Tymcio: That's right, and the court also said he wasn't going to do me any good unless I had counsel, whether I was right or wrong, not in them exact words, but in a little bigger terms.
"By the Court: The only option this court has now at this stage, in view of this finding of Judge Jones is to go forward with the case.
"Mr. Tymcio: It will be a one-sided case.
"By the Court: I am sorry, Mr. Tymcio, you had the opportunity since May 25th to get counsel.
"Mr. Tymcio: I have tried, but without money you can't get counsel.
"By the Court: That has been determined — — -.
"By the Court: Mr. Bailiff, bring the jurors into the court room.
"9:50 a.m. — — The jurors came into the court room and the bailiff seated the first twelve jurors.
"9:55 a.m. — — The bailiff gave the preliminary oath to the jurors.
"9:56 a.m. — — Voir dire examination by Mr. Kirkwood.
"By the Court: Mr. Tymcio, do you wish to direct any questions to the panel?
"Mr. Tymcio: Your Honor, I am not trying this case. It seems that the state is trying it. I asked for a court appointed attorney and I have been turned down and I have nothing to say.
"By the Court: As the court explained to you, Judge Jones of this court determined that you have the means to hire counsel and you chose not to do it.
"Mr. Tymcio: That isn't what I told him.
"By the Court: We can't put the trial off because you won't do it. He has determined that you are not indigent.
"Mr. Tymcio: I have tried to borrow money, and I went to attorneys and they want cash in advance.
"By the Court: We will have to go forward. Has the state any pre-emptory challenge?
"Mr. Kirkwood: No, Your Honor, the state is satisfied with the jury.
"By the Court: Have you any pre-emptory challenge, Mr. Tymcio?
"Mr. Tymcio: I have nothing to say.
"By the Court: Swear the jury, Mr. Bailiff."
The jury was sworn. The trial proceeded, with defendant acting as his own counsel. A guilty verdict resulted, and defendant was sentenced and imprisoned.
Upon appeal, the defendant claimed that he had been denied his right to the assistance of counsel, in violation of the Sixth and Fourteenth Amendments to the United States Constitution. The Court of Appeals affirmed the judgment of the Court of Common Pleas.
The cause is now before this court pursuant to the allowance of a motion for leave to appeal, and as a matter of right. Appellant has been granted counsel for this appeal.
Mr. Ronald J. Kane, prosecuting attorney, and Mr. Frank J. Cimino, for appellee.
Mr. William G. Simon, for appellant.
The trial court's initial factual determination of nonindigency was fairly made. At that time, the defendant was regularly employed, had been freed on bond, and was scheduled to appear for trial. He knew that by reason of the court's determination of his nonindigency, he was obliged to seek counsel at his own expense. With the resources at his disposal, the defendant appeared able to make some reasonable arrangement for adequate representation.
When the defendant appeared in court 31 days later, he reported that he had been unable to obtain counsel, that he was unrepresented, and that he desired the assistance of court-appointed counsel.
With no great skill, he volunteered the reasons for his failure, sought a reevaluation of his eligibility, and protested when compelled to proceed to trial unassisted.
His conviction, this appeal and the record pose the following serious constitutional and procedural questions: Is the appellee correct in asserting that the sole issue involved in this case is whether the trial court abused its discretion in finding the defendant to be nonindigent? Was the trial judge's assertion correct when, in response to the defendant's renewed request, he said, "the court can't check into this because Judge Jones has already determined that you are able to hire counsel," thus holding that further inquiry into the defendant's inability to obtain counsel was precluded by the earlier determination of "indigency?" If not, what was the trial court's duty when confronted with the representations here made, and by the accused's renewed request for assistance of counsel?
We conclude that the appellee errs in asserting that the question before us concerns judicial discretion. The constitutionally protected right to the assistance of counsel is absolute. "* * * absent a knowing and intelligent waiver, no person may be imprisoned for any offense * * * unless he was represented by counsel at his trial." Argersinger v. Hamlin (1972), 407 U.S. 25, 37; Gideon v. Wainwright (1963), 372 U.S. 335.
The obligation to provide counsel is often said to run to the "indigent." Generally speaking, such a statement is true, because undisputed indigence, and the inability for that reason alone to obtain counsel, is the major reason requiring the assistance of court-appointed counsel. In fact, the temptation is to say that where nonindigency can be factually found, the appointment of counsel by the court not only is not required, but may not be permitted.
Such a rigid requirement would be arguable if indigency were judicially definable as an abstract term without regard to the circumstances of the particular case, and if indigency, as so defined, were the only actual fact bearing on the inability to obtain counsel in this and other cases. But it is not.
The Advisory Committee Notes to the 1966 amendment of the Federal Justice Act of 1964 contain the following:
"The right to assignment of counsel is not limited to those financially unable to obtain counsel. If a defendant is able to compensate counsel but still cannot obtain counsel, he is entitled to the assignment of counsel even though not to free counsel."
Clearly, a bare finding of nonindigency does not explain why an accused, such as the defendant in this case, who represents that he has been unable while under bond to obtain adequate counsel with his available resources because of demands for substantial cash retainers, must stand alone.
Many factors may impinge upon a defendant's inability to obtain counsel, factors which may differ greatly from case to case. Here, one can discern from the record that the defendant was a troublesome man. He was contentious, violent in nature, estranged from his wife and family, frustrated by his inability to cope with his problems, and confronted with a serious charge against which there were perhaps few meritorious legal contentions or favorable facts. It can easily be seen why such a man, marginally indigent, might have difficulty in employing counsel.
That such circumstances exist was recognized by Attorney General Robert F. Kennedy, when, in his letter of transmittal of the Federal Criminal Justice Act of 1964 (H.R. Rep. 864, 88 Congress, 1st Sess. [1963]) to President John F. Kennedy, he stated: "* * * the term indigency (in 18 U.S.C. § 3006A(a)) is avoided because of its implication that only an accused who is destitute may need appointed counsel or services." To avoid this implication, that Act applies to those "financially unable to obtain an adequate defense."
The same is true of Ohio Crim. R. 44(A) and R.C. 2941.50(A), neither of which employs the term "indigency." Rather, both make reference to one who "is unable to employ counsel."
To make the right to the assistance of court-appointed counsel a factual reality, the determination of need must turn, not upon whether an accused ought to be able to employ counsel, but whether he is in fact able to do so. Absent a knowledgeable and intelligent waiver, a defendant may not be imprisoned unless he was represented by counsel at his trial. Argersinger, supra; Gideon, supra.
We hold that a preliminary determination of indigency can not be permitted to foreclose a redetermination of eligibility for assigned counsel, when, at a subsequent stage of a criminal proceeding, new information concerning the ability or inability of the accused to obtain counsel becomes available. It is then the duty of the trial court to inquire fully into the circumstances impinging upon the defendant's claimed inability to obtain counsel, and his consequent need either for assistance in employing counsel, or for the assistance of assigned counsel. When an accused is financially able, in whole or in part, to obtain the assistance of counsel, but is unable to do so for whatever reason, appointed counsel must be provided. In such case, appropriate arrangements may subsequently be made to recompense appointed counsel for legal services rendered.
The trial court's failure to ensure that defendant was adequately represented by counsel violated the mandate of Argersinger, supra, and invalidates the judgment below. Therefore, the judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Common Pleas for further proceedings.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE and W. BROWN, JJ., concur.