Summary
noting that absent a valid waiver no person may be imprisoned for a misdemeanor unless he was represented by counsel
Summary of this case from State v. DeBrillOpinion
No. 73-581
Decided March 27, 1974.
Criminal procedure — Right to counsel — Waiver — Must be knowingly and intelligently done — Presumption of waiver impermissible from silent record — Accused may not be imprisoned, when — Where not represented by counsel — Absent proper waiver — For felony or misdemeanor.
1. 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. ( Argersinger v. Hamlin, 407 U.S. 25, followed.)
2. Presuming a waiver of the Sixth Amendment right of an accused to the assistance of counsel from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver. ( Carnley v. Cochran, 369 U.S. 506, followed.)
APPEAL from the Court of Appeals for Lake County.
In April 1971, Herbert Wellman was indicted by a Lake County grand jury on a charge that, on or about November 27, 1970, he received or concealed stolen horse bridles and saddles of the value in excess of $60, knowing said property to have been stolen, in violation of R.C. 2907.30. The transcript shows that a warrant was issued on December 29, 1970, and that defendant was arrested on January 4, 1971. On January 21, 1971, defendant was released from jail on a surety bond in the amount of $1,000.
The record of the Court of Common Pleas contains a journal entry, dated April 29, 1971, assigning counsel for defendant. The entry reads: "And now the defendant being brought into court, in charge of the sheriff, and it appearing that he is in indigent circumstances, and unable to employ counsel, the court at his request appoint [ sic] Alfred Denman * * * as counsel for his defense." There is nothing in the record, as to the establishment of indigency, the court's inquiry thereof or defendant's information thereon, to support the naked journal entry.
A second journal entry, dated April 29, 1971, records that defendant, in court with his counsel, Alfred Denman, was arraigned on the indictment, waived reading of the indictment and any defects in the time or manner of the service of same, and entered a "not guilty" plea. Bond of $1,000 was set. Again, the record does not reflect the word-by-word exchange of the court, the prosecutor and defense counsel at the arraignment, but discloses only the naked journal entry.
The record next discloses a letter, dated October 8, 1971, to the clerk of courts from attorney Denman, referring to cases Nos. 7210 and 7233. The letter reads:
"Please be advised that I no longer represent Herbert Wellman in the above assigned numbered cases. Due to irreconcilable differences he has advised me that he will make other arrangements for legal representation. He has been advised that his case has been set for trial for November 8th, 1971 at 9:00 a.m. Therefore, if it meets with the courts [ sic] approval, I respectfully ask that my name be withdrawn as counsel for Herbert Wellman."
There is no indication in the record that the court approved the withdrawal. In the transcript of docket and journal entries there is a record of a precipe filed with the clerk of courts on November 2, 1971, by the prosecutor ordering subpoenas to be served by the sheriff on five persons to appear as witnesses on November 8, 1971, in case No. 7233, the matter which is the subject of this appeal. Precipe and subpoenas were served, and were returned and filed on November 8, 1971.
Apparently, the trial did not proceed on that day, but the record does not reflect the reason. The next journal entry is a letter, which reads:
April 25, 1972
Honorable John M. Parks Judge of the Court of Common Pleas Lake County Courthouse Painesville, Ohio 44077
Re: State v. Wellman Case No. 7233
Dear Judge Parks:
This is to advise you that although my name appears as the attorney of record for the defendant, Herbert Wellman, in case No. 7233, that I have not been retained by Mr. Wellman to represent him in this matter and have never discussed any of this case with him. While I have written several times inquiring of Mr. Wellman what his intentions are in dealing with this matter, I have never had a response.
Therefore, I am requesting that you withdraw my name as attorney of record for the defendant in the captioned case because I can only conclude that the defendant does not choose to have me represent him in this matter. I have advised the defendant of the pre-trial hearing scheduled for April 28th at 9:30 a.m. and I suspect he will make other arrangements for representation by counsel.
Thank you for your understanding in this matter.
Sincerely, Albert L. Purola
The record does not indicate that attorney Purola was appointed by the court, so it must be assumed that he had been retained by Wellman to represent him in case No. 7233. Otherwise, his name would not have appeared as attorney of record, and obviously he knew that he was so listed or he would not have sent the letter of withdrawal to the court.
In a letter which the Court of Appeals incorporated in its opinion, there is further indication that attorney Purola was retained by defendant. The letter reads:
April 7, 1972
Mr. Herbert Wellman 10101 Johnny Cake Ridge Painesville, Ohio 44077 Dear Mr. Wellman:
This letter has two purposes:
One, to advise you that a pre-trial hearing in the case of saddle possession has been scheduled in court room No. 2 at the Lake County courthouse on Friday, April 28, at 9:00 a.m., and
Two, to advise you that I will no longer tolerate your failure to pay my bill.
Will you please make some arrangements to contact me and come into the office so that we can settle these two pressing problems without any further delay. I am urging you as strongly as I can to come into my office within the week.
Sincerely, Albert L. Purola
The record refers to an earlier case in which Wellman was also the defendant, apparently case No. 7210, and the record reflects that Wellman was represented by attorney Purola in that case and was acquitted, after a six-day trial between February 14-22, 1972.
Next, the transcript shows a precipe filed and subpoenas served for trial on May 1, 1972. On the jury voir dire the court stated, as part of its observations, that:
"This case is unusual in that the defendant, Herb Wellman, appears without counsel and represents himself. The court appointed counsel for Mr. Wellman in this case as provided by law, but he rejected counsel.
"This fact should not prejudice the defendant in any way. It should not influence your decision because of sympathy for the defendant. Legally he has the right to represent himself. This is a matter of his own choice. This fact alone should not influence you in any way whatsoever in the trial of this case."
The record does not show any comment or objection by defendant to the court's statement, and the record is likewise silent as to any prior court advice to defendant as to his right to counsel. The defendant participated with the prosecutor in the jury selection. At one point, the prosecutor addressed the members of the jury panel on the voir dire, as follows:
"If it please the court, Mr. Wellman, ladies and gentlemen and prospective jurors.
"This is a rather unusual case in the prosecutor's office. This is the first time that I have been involved with no defense counsel. The court has instructed you that Mr. Wellman has been appointed counsel and that he refused.
"The fact that Mr. Wellman is not represented by counsel — and this is very important to know, it is very important — do you feel that there is something odd about the fact that I am prosecuting a case and would you bend over backwards on behalf of Mr. Wellman upon hearing this case?
"You understand he has been appointed counsel? You understand this?
"You understand he has refused counsel? You understand this?
"This is his choice. You understand this?
"It is not my doings or Judge Parks' doings or deputy Amiott's doings. This is the defendant's own doings. * * *"
These observations drew no comment or objection from defendant.
A jury of 12 and one alternate was selected, and defendant participated in the selection by questioning some of the members of the panel, and exercised four peremptory challenges. After the jury was sworn, the court called for opening statements. At that critical and propitious point in the proceedings, the record shows the following discussion:
"Mr. Wellman: Your Honor, may I approach the bench?
"The Court: Certainly.
"(Discussion was had at the bench between the court and Mr. Wellman out of the hearing of the jury and this reporter.)
"The Court: Members of the jury, there are some legal matters to be taken up at this moment, which must be done out of your presence.
"So, the bailiff will conduct the jury to the jury room until they are disposed of. Then you will be returned.
"* * *
"(Jury excused.)
"The Court: Now, as long as the jury is not present, you may make your motions as to whatever you wish in the record. State it into the record.
"Mr. Wellman: I would like to make a motion that I have a continuance. I haven't had time. I was notified Friday that trial was today, which wouldn't give me time to subpoena my witnesses, one of them from Cleveland, not alone prepare a respective defense in my own behalf.
"I am also not here by choice. I would like to have counsel. Counsel has been refused me.
"I would also like to enter a motion for a change of venue, resulting from the conversation in the Judge's chambers Friday, the day of my pre-trial, that I could take any questions or complaints to the appeals court. I feel that by this, the Judge had already reached a verdict that I would have to be in the appeals court.
"I also would like to have in the record that this morn-the jury was prejudiced when Mr. Talikka [the prosecutor] asked Mr. Orosz, who has been dismissed, before he dismissed him that he had a brother that defended my brother in a criminal charge. That was uncalled for in my belief. I am not even sure that this lawyer ever defended him in any criminal charge.
"As for — I would like to enter a motion that — strike that. That will be all.
"* * *
"The Court: Your motions are overruled.
"Mr. Wellman: I have one more motion.
"The Court: All right.
"Mr. Wellman: I would like a manuscript from the last trial.
"The Court: You may make arrangements if you wish. This has nothing to do with this trial.
"Mr. Wellman: There was lots of testimony that I would like to look at. I need it for this trial.
"The Court: I do not know whether or not this transcript is typed or not.
"Mr. Wellman: This is within my legal rights, since quite a bit of the manuscript does cover this charge basically — quite a bit.
"The Court: If it is available —
"Mr. Wellman: I would like permission to have it as soon as possible.
"The Court: I am going to deny your motion, unless the matter has been transcribed, because the motion was made after the jury is impaneled.
"If you wish to have the manuscript —
"Mr. Wellman: Sir?
"The Court: If you wish to have the transcript, you should have made preparations for it much earlier than after the jury is impaneled.
"The motion is overruled.
"You may bring the jury back.
"(Jury returned to courtroom.)"
Opening statements, including one by defendant, were then made. The state thereupon presented six witnesses, and the defendant cross-examined each of them.
Defendant, at the conclusion of the state's case, made a motion for a mistrial, asserting that the prosecutor suppressed evidence and asking that the charge be dismissed. The motion was overruled by the court.
Then, defendant moved the court for a directed verdict "because the state has not yet positively identified the property that I sold, or supposedly sold, knowing that it had been stolen, without proper identification from the state's witnesses. Then, how could he say in any way or form that I would have known that the property was stolen.
"He would have to prove that the property belonged to somebody, as far as I am concerned."
The court also overruled that motion.
Defendant presented only one witness by way of defense, and conducted the examination himself. (He had subpoenaed a second witness, who allegedly lived in Cleveland, but who was not found at the stated address, having moved from there over a year previously without leaving a forwarding address.) Defendant also took the stand as a witness, making a narrative statement to the jury, and making a closing argument on his own behalf. Thereafter, the court gave its charge to the jury. The jury found defendant guilty of receiving and concealing stolen property of the value of $250.
On May 8, 1972, a motion for a new trial was filed by attorney Purola, who had withdrawn from the case by letter on April 25, 1972. His brief in support of the motion states:
"The accused is entitled to assistance of counsel in every criminal proceeding in the absence of an intelligent, knowing and voluntary waiver. United States Constitution, Amendment 6, Amendment 14; Ohio Constitution, Article I, Section 10; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799, 93 ALR 2d 733.
"The record in this case hardly reflects a waiver where the defendant formally objected to being tried without a lawyer at the beginning of the trial.
"The constitutional error is monumental and can only be corrected by granting a motion for a new trial."
The court overruled the motion and pronounced sentence, but stayed execution of sentence pending an appeal. The judgment of the trial court was affirmed by the Court of Appeals.
The cause is now before this court pursuant to the allowance of defendant's motion for leave to appeal.
Attorney Purola represented defendant in the Court of Appeals, and also represents him in this court.
Mr. Paul H. Mitrovich, prosecuting attorney, and Mr. Theodore R. Klammer, for appellee.
Mr. Albert L. Purola, for appellant.
We have drawn profusely from the record in stating the salient facts deemed necessary to reflect both sides of the constitutional problem posed in this appeal. We understand the rationale behind the conclusion reached by the Court of Appeals, as shown by the statement, in its opinion, that: "The process engaged in by the defendant constituted a full waiver of his constitutional right to counsel at the time of trial." However, we feel compelled to disagree with that judgment. We agree with their dictum that a defendant possesses no right to play games with the trial court, be he indigent or affluent, be he ignorant of his constitutional rights or knowledgeable concerning same.
In any event, by whatever mastery of his constitutional rights this defendant possessed, combined with his courtroom artfulness, or as a result of the advantage of legal advice received on trial tactics and strategy covering the legal situation in which defendant found himself, the trial court was allayed as to the constitutional significance of defendant's courtroom machinations. For example, defendant cunningly waited until the jury was sworn to formally make his demand on the record for a continuance and for the appointment of counsel to represent him in the trial.
I.
The Sixth Amendment to the United States Constitution mandates the assistance of counsel to a defendant in a criminal trial. The Fourteenth Amendment makes the Sixth Amendment applicable to the states, and it is unconstitutional to try a person for a felony in a state court unless he has a lawyer or has validly waived one. Gideon v. Wainwright (1963), 372 U.S. 335; Burgett v. Texas (1967), 389 U.S. 109.
Since Gideon, the United States Supreme Court, in Argersinger v. Hamlin (1972), 407 U.S. 25, made the requirement of assistance of counsel applicable to all criminal prosecutions, including prosecutions for violations of municipal ordinances, if a sentence to jail resulted. That latter opinion holds, at page 37, 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."
II.
With regard to the question of waiver, the Sixth Amendment right to the assistance of counsel may be waived. Such a waiver of a constitutional right, in order to have validity, must be done knowingly and intelligently. The United States Supreme Court said, in Johnson v. Zerbst (1938), 304 U.S. 458, 464:
"* * * It has been pointed out that `courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we `do not presume acquiescence in the loss of fundamental rights.'"
That rule was further developed in Carnley v. Cochran (1962), 369 U.S. 506, 516, as follows:
"* * * Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver."
That requirement of waiver was later reinforced in Brookhart v. Jamis (1966), 384 U.S. 1, 4, as follows:
"* * * for a waiver to be effective it must be clearly established that there was `an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464."
Whether contrived or accidental, the record in this case is ominously silent upon the question of whether the defendant understandingly and intelligently waived his constitutional right to the assistance of counsel on May 1, 1972. Based upon the record before us, the curtain was raised on that issue before the jury selection process had commenced, at which time defendant was without the assistance of counsel. If the trial court was led to believe that defendant was waiving his right to counsel, a complete set of reasons should have been spread on the record before the jury selection started, in order to establish that such a choice by defendant was being made understandingly and intelligently on the morning of May 1, 1972.
The events that occurred earlier, recounted in the statement of facts, may not, singly or considered together, be taken as a waiver of defendant's right to counsel. Nor may the acts of defendant after the start of the trial, likewise recounted in the statement of facts, be considered a waiver.
Accordingly, the judgment of the Court of Appeals is reversed, and the cause is remanded to the Court of Common Pleas for further proceedings in accordance with law.
Judgment reversed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
STERN, J., concurs in the syllabus and judgment.