Opinion
Nos. 87-1234 and 87-1235
Submitted April 12, 1988 —
Decided August 10, 1988.
Criminal law — Appellate procedure — Determination of indigency will not be reversed absent abuse of discretion — R.C. 120.05.
O.Jur 3d Civil Servants § 416.
The determination by an appellate court pursuant to R.C. 120.05 that a person is not indigent and thus not entitled to legal representation by the state public defender on appeal will not be reversed absent an abuse of discretion.
APPEALS from the Court of Appeals for Montgomery County, Nos. 10093 and 10374.
The instant consolidated cases concern appeals of the denial of appointed counsel for defendant-appellant, Raymond Weaver. Case No. 87-1234 involves the appeal by appellant of his conviction for violation of R.C. 4503.21 — failure to display his license plate. Case No. 87-1235 involves the appeal by appellant of his conviction for violation of Section 13, Article 18, and Section 1, Article 24 of the Zoning Ordinances of the City of Huber Heights — possession of "junk and debris" in front of his garage door and possession of unlicensed and inoperable motor vehicles in his driveway, respectively. Case No. 87-1234 arises from a decision of the Dayton Municipal Court, Traffic Division, while case No. 87-1235 arises from a decision of the Second District Court of Montgomery County. Appellant was assessed court costs but was not fined relative to the Revised Code violation. He was fined $100 per day and assessed court costs for the zoning violations. On appeal of these convictions, appellant made applications for appointed counsel and a trial transcript. Preparation of the transcript was ordered in one case, having already been ordered in the other case, but the application for appointment of counsel was overruled in both cases. This latter determination is the subject of the present appeals.
The cause is now before this court pursuant to the allowance of motions for leave to appeal (case No. 87-1234) and to certify the record (case No. 87-1235).
J. Anthony Sawyer, director of law, Vincent P. Popp, city prosecutor, and John J. Scaccia, for appellee state of Ohio.
Altick Corwin and Robert B. Berner, for appellee city of Huber Heights.
Randall M. Dana, public defender, and Wendie A. Gerus, for appellant.
Calfee, Halter Griswold, John E. Gotherman and Stanley J. Dobrowski, urging affirmance for amicus curiae, Ohio Municipal League.
It is the contention of appellees that an indigent criminal defendant is not constitutionally entitled to have appellate counsel appointed on his behalf where his conviction does not result in actual incarceration. We need not address this issue however because it is our conclusion that the court of appeals was correct in determining that appellant was not, in fact, indigent.
R.C. 120.05 governs the process by which indigency is established and representation by the public defender is authorized. It provides in relevant part:
"(A) The determination of indigency shall be made by the state public defender, subject to review by the court. * * *
"(B) The state public defender shall investigate the financial status of each person to be represented, at the earliest time the circumstances permit, and may require the person represented to disclose the records of public or private income sources and property, otherwise confidential, which may be of aid in determining indigency. * * * The court, before whom a person seeking representation is taken, may determine the person's eligibility for legal representation by the state public defender." (Emphasis added.)
R.C. 120.05 makes no distinction between trial and appellate courts. The general nature of the statute must be presumed to confer upon appellate courts the same power to ascertain the indigency of persons appearing before them as enjoyed by trial courts. Inasmuch as this power is coextensive with that possessed by a trial court, its exercise must be evaluated by the same standard applicable thereto. While this court has not previously addressed the standard of review to be applied to an indigency determination, at least one other court in this jurisdiction addressed the deference to be afforded such decision. In Geehring v. Municipal Court of Girard (N.D. Ohio 1973), 357 F. Supp. 79, 83, the federal district court observed:
"* * * Unless a clear showing of abuse of discretion or discrimination amounting to constitutional dimensions is illustrated, this court is without authority to overturn such a ruling."
While this result was, in part, dictated by concern over the respective roles of the state and federal judiciary, it is also consistent with the considerable latitude afforded courts vested with such authority. Other jurisdictions are in accord with this view. See Glenn v. United States (C.A. 5, 1962), 303 F.2d 536, 542; Bramlett v. Peterson (M.D. Fla. 1969), 307 F. Supp. 1311, 1323; Wiggington v. Wiggington (1972), 16 Md. App. 329, 338, 295 A.2d 889, 894.
Accordingly, we hold that the determination of an appellate court pursuant to R.C. 120.05 that a person is not indigent and thus not entitled to legal representation by the state public defender on appeal will not be reversed absent an abuse of discretion.
In Martin v. Martin (1985), 18 Ohio St.3d 292, 295, 18 OBR 342, 344, 480 N.E.2d 1112, 1114, this court, quoting Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 1142, observed:
"`"The term `abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable."'" See, also, State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O. 3d 169, 173, 404 N.E.2d 144, 149.
Applying this standard to the case sub judice, it is beyond dispute that the refusal of the court of appeals to appoint a public defender to represent appellant in the prosecution of his appeals was not an abuse of discretion. Appellant has not supported his claim that he is unable to afford private counsel. Moreover, both the Office of the Ohio Public Defender and the Dayton Municipal Court had previously determined that appellant was not indigent. While these prior decisions are not dispositive, they certainly give credence to the appellate court's actions.
We therefore affirm the decisions of the court of appeals and remand the cases to that court for proceedings not inconsistent with this opinion.
Judgments affirmed.
MOYER, C.J., LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.