Opinion
Nos. 72-679 and 72-680
Decided May 16, 1973.
Criminal procedure — Misdemeanors — Right to counsel.
APPEALS from the Court of Appeals for Hamilton County.
In case No. 72-679, appellant was convicted of habitual drunkenness (Cincinnati Ordinance 901-d-6). This conviction in the Hamilton County Municipal Court occurred in December of 1970. Appellant was sentenced to imprisonment for one year in the Cincinnati Workhouse and fined in the amount of the costs of the proceeding. No appeal as of right was taken and appellant was not represented by counsel.
In case No. 72-680, appellant, again without the assistance of counsel and in the same court, was convicted of failing to provide for his children. He was sentenced to imprisonment for six months in the Cincinnati Workhouse, and fined $200 and the costs of the proceeding. The court additionally ordered the latter sentence to be served consecutively with the former. This conviction occurred in January of 1971, and no appeal as of right was taken.
On January 12, 1972, appellant, through his counsel, filed motions for leave to appeal in both of these cases in the Court of Appeals for Hamilton County. He alleged that he was indigent at the time of the respective trials; that because of said indigency he was unable to obtain private counsel; and that the trial court did not inquire into his financial status or advise him of his right to counsel if he was indigent.
On June 12, 1972, the decision of the United States Supreme Court in Argersinger v. Hamlin, infra, was announced. In that case, the court held that, absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.
On July 6, 1972, the Court of Appeals overruled both motions for leave to appeal.
We granted appellant's motions to certify the records on the question of whether we should apply Argersinger retroactively.
Mr. Thomas A. Luebbers, city solicitor, Mr. Ralph E. Cors and Mr. John S. Moraites, for appellee.
Messrs. Kelley, Grossheim Bavely and Mr. E. Hanlin Bavely, for appellant.
A majority of the members of the court are of the opinion that since Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L. Ed. 2d 530, does not announce a proposition of law formulated by this court, but is rather the latest of a "widening class of cases" from the United States Supreme Court prescribing new federal constitutional requirements, it would be improvident for us to declare the case to have retroactive effect in Ohio in the absence of any indication that the United States Supreme Court intends it to be so applied.
Such as, for example, State v. Sims (1971), 27 Ohio St.2d 79, 272 N.E.2d 87; State v. Leroy (1972), 30 Ohio St.2d 138, 283 N.E.2d 136.
James v. Strange (1972), 407 U.S. 128, 141.
See Potts v. Supt. of Vir. State Penitentiary (1972), 213 Va. 432, 192 S.E.2d 780; Garrett v. Puckett (1972), 348 F. Supp. 1317.
The judgments of the Court of Appeals are affirmed.
Judgments affirmed.
HERBERT, CORRIGAN, CELEBREZZE and P. BROWN, JJ., concur.
O'NEILL, C.J., STERN and W. BROWN, JJ., dissent.
Even though the United States Supreme Court has not yet decided whether Argersinger v. Hamlin (1972), 407 U.S. 25, is to have retrospective application, I am of the opinion that the constitutional right to have appointed counsel at state expense in criminal trials, as held in Gideon v. Wainwright (1963), 372 U.S. 335, is so fundamental in our system of criminal jurisprudence that the pronouncement on this subject in Gideon pertains to Argersinger. I would reverse the judgment of the Court of Appeals. See dissent by O'Neill, C.J., in State v. Leroy (1972), 30 Ohio St.2d 138, 145; Lovelace v. Haskins (C.A. 6), decided March 21, 1973; Henderson v. Maxwell (1964), 176 Ohio St. 187; Henderson v. Cardwell (C.A. 6, 1970), 426 F.2d 150; Woodall v. Neil (C.A. 6, 1971), 444 F.2d 92; Goodwin v. Cardwell (C.A. 6, 1970), 432 F.2d 521.
O'NEILL, C.J., and W. BROWN, J., concur in the foregoing dissenting opinion.