In re E.C. , 2011 Ohio 6543 ( 2011 )

[Cite as In re E.C., 2011-Ohio-6543.]
STATE OF OHIO, NOBLE COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF: )
)
E.C. )
)
) CASE NO. 09-NO-366
)
) OPINION
)
)
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas, Juvenile Division of Noble
County, Ohio
Case No. 209-2022
JUDGMENT: Reversed and Remanded
APPEARANCES:
For Appellee Attorney Jamie A. Riley
Assistant Prosecuting Attorney
508 North Street
Caldwell, Ohio 43724
For Appellant Bonnie Mae Cooper, Pro-se
48289 Outpost Road
Caldwell, Ohio 43724
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: December 15, 2011
[Cite as In re E.C., 2011-Ohio-6543.]
DONOFRIO, J.
{¶1} Defendant-appellant, E.C., appeals a decision from the Noble County
Common Pleas Court, Juvenile Division, adjudicating her a delinquent child for
committing criminal trespass.
{¶2} On April 28, 2009, John Sklenar discovered a building on property he
owned was broken into. Several items were missing, which he presumed were
stolen; multiple other items were damaged. Sklenar testified, “[E]verything * * * was
dumped in the middle of the floor and it was a mess.” (08/28/2009 Tr. 11). These
items included stored boxes from his brother’s death, family heirlooms, antiques, and
other personal valuables. (08/28/2009 Tr. 11-12.)
{¶3} Sklenar contacted Detective Stephen Hannum of the Noble County
Sheriff’s Department about the break-in on May 4, 2009. Detective Hannum arrived
at the scene and commenced an investigation. Upon entering the building, he
described it as being in “total disarray.” Detective Hannum took photographs of the
damage.
{¶4} Sklenar’s niece informed him that her daughter talked to appellant and
told her the events that transpired. Among the information, appellant told her some
other names, which the niece relayed to Sklenar. Sklenar then gave these names to
Detective Hannum.
{¶5} Detective Hannum contacted appellant’s mother and asked if the three
of them could have a conversation. She agreed and the three of them met at the
school where she works. Specifically, appellant’s mother said, “come straight on
over to school and you can talk with us right now.” (08/28/2009, Tr. 3.)
{¶6} Before Detective Hannum asked any questions, he explained to
appellant and her mother that “any time a crime is committed by generally more than
one person generally somebody will give that information up and when they do that
person will be treated as a State’s witness” and, in this particular case, Detective
Hannum was interested in finding out what went on and who did what. (08/28/2009,
Tr. 4.) Accordingly, he did not read appellant her Miranda rights. (08/28/2009 Tr. 4.)
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{¶7} During the conversation, appellant gave the Detective “quite a bit of
information.” (08/28/2009 Tr. 4.) Appellant told him what her involvement was and
she gave him the name of the other children who were involved in vandalizing the
Sklenar property. This information led to the arrest of several other children.
{¶8} Detective Hannum then prepared a complaint against appellant alleging
her to have committed criminal trespass on Sklenar’s property, which Sklenar signed.
The complaint was against appellant, alleging her to have committed criminal
trespass on his property.
{¶9} On July 15, 2009, the trial court called the case for an initial
appearance, at which time appellant appeared with her mother. Early on, appellant
indicated that she wanted to be represented by counsel, but stated that her mother
could not afford to hire an attorney. When the trial court determined that appellant
did not qualify for the indigent appointment of counsel based on the eligibility charts it
had before it, appellant then replied, “We’ll just proceed without a lawyer.”
(07/15/2009 Tr. 4.)
{¶10} On August 28, 2009, the trial court held an adjudicatory hearing. After
noting that appellant’s mother was not indigent but could not afford to hire counsel,
the trial court proceeded to let appellant’s mother act as counsel for appellant. The
state presented the testimony of Det. Hannum and John Sklenar, and appellant’s
mother cross-examined each of them. After the state presented its case, appellant’s
mother moved to have the case dismissed arguing that appellant could not have
been on Sklenar’s property on the date alleged in the complaint. The court overruled
the motion and appellant’s mother proceeded to present the testimony of appellant’s
“step parent” and appellant herself. The court, after it heard testimony and reviewed
the evidence, found appellant to be a delinquent child beyond a reasonable doubt.
Specifically, the court found that appellant committed criminal trespass in violation of
R.C. 2911.21(A)(1), a fourth-degree misdemeanor (had it been committed by an
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adult). Before proceeding to disposition, the court ordered appellant to undergo an
initial screening at Noble Behavioral Health Choices.
{¶11} On October 27, 2009, the case was called for disposition. The court
stayed a detention commitment of thirty days and imposed community control
sanctions including: fifty hours of community service and teen group counseling at
Noble Behavioral Health Choices. Court costs were to be paid by appellant within
sixty days.
{¶12} Appellant’s mother filed a timely notice of appeal and filed an appellate
brief on appellant’s behalf.
{¶13} An initial matter which demands our attention is appellant’s mother
acting as an attorney for appellant. “[J]udges have the ethical duty to prevent the
unauthorized practice of law.” In re D.L., 189 Ohio App. 3d 154, 2010-Ohio-1888, 937
N.E.2d 1042, ¶15, citing Prof.Cond.R. 5.5(a), formerly DR 3–101(A). Gov.Bar.R.
VII(2)(A) defines the unauthorized practice of law as “[t]he rendering of legal services
for another [person] by any person not admitted to practice in Ohio.”
{¶14} “A person’s inherent right to proceed pro se in any court pertains only to
that person and does not extend to the person’s spouse, child, or solely owned
corporation.” In re D.L., 189 Ohio App. 3d 154, 2010-Ohio-1888, 937 N.E.2d 1042,
¶14. Thus, a court errs when it permits a parent to act as their child’s attorney. Id. at
¶16.
{¶15} In this instance, we cannot consider the appellate brief filed by
appellant’s mother. To do so would sanction the unauthorized practice of law.
Moreover, appellant’s mother acting as her attorney in the proceedings below has
implications which affected the propriety of those proceedings.
{¶16} A review of how appellant’s mother came to act as her counsel in the
proceedings below reveals plain error. “[N]umerous constitutional safeguards
normally reserved for criminal prosecutions are equally applicable to juvenile
delinquency proceedings.” State v. Walls, 96 Ohio St. 3d 437, 2002-Ohio-5059, 775
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N.E.2d 829, ¶26. Of importance here is a juvenile’s right to counsel. The right to
counsel in a juvenile case flows to the juvenile through the Due Process Clause of
the Fourteenth Amendment, not the Sixth Amendment. In re Gault (1967), 387 U.S.
1, 41, 87 S. Ct. 1428, 18 L. Ed. 2d 527.
{¶17} In Ohio, a juvenile’s right to be represented by counsel in juvenile court
can be found in Juv.R. 4(A) and 29(B), as well as R.C. 2151.352. In addition to the
right to be represented by counsel at all stages of juvenile court proceedings, a
juvenile who is indigent is entitled to appointed counsel. Juv.R. 4(A); R.C. 2151.352.
{¶18} Although a juvenile has the right to counsel and an indigent juvenile the
right to appointed counsel, like an adult in a criminal case, that juvenile may waive his
or her right to counsel, subject to certain standards. In re C.S., 115 Ohio St. 3d 267,
2007-Ohio-4919, 874 N.E.2d 1177, paragraph two of the syllabus.
{¶19} A juvenile’s waiver of their right to counsel is effective only if they made
that decision knowingly, voluntarily, and intelligently. Id. at ¶106, citing State v.
Gibson (1976), 45 Ohio St. 2d 366. The court “must scrupulously ensure that the
juvenile fully understands, and intentionally and intelligently relinquishes, the right to
counsel.” Id. In so doing, the court “is to engage in a meaningful dialogue with the
juvenile.” Id. at ¶107.
{¶20} In evaluating whether a juvenile’s waiver is valid, the court must apply a
totality-of-the-circumstances analysis. Id. at ¶108. In applying this analysis, the court
must consider: “the age, intelligence, and education of the juvenile; the juvenile’s
background and experience generally and in the court system specifically; the
presence or absence of the juvenile’s parent, guardian, or custodian; the language
used by the court in describing the juvenile’s rights; the juvenile’s conduct; the
juvenile’s emotional stability; and the complexity of the proceedings.” Id., citing In re
Dalton S. (2007), 273 Neb. 504, 515.
{¶21} In this case, during the dialogue that took place concerning appellant’s
right to counsel, appellant clearly stated her desire to be represented by counsel:
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{¶22} “COURT: A couple of things I need to explain before we go
any further here [E.C.]. First of all in this proceeding you have the right to be
represented by a lawyer. Now I don’t think you have a lawyer with you right now. If
you simply haven’t had enough time to get a lawyer and wanted more time I’d grant
you a continuance so that you could go out and hire a lawyer. If you’ve been unable
to obtain the services of a lawyer because you feel the family doesn’t have sufficient
funds to pay for a lawyer, if in fact that is the case then the court will appoint a lawyer
for you. That lawyer would then be paid for by the county. Do you understand that
you have the right to be represented by a lawyer either retained or appointed?
{¶23} “[E.C.]: Yes.
{¶24} “COURT: Do you want to be represented by a lawyer in this
proceeding?
{¶25} “[E.C.]: Yes.
{¶26} “COURT: Okay, how long will it take you to hire a lawyer?
{¶27} “[E.C.]: My mom can’t afford it.
{¶28} “COURT: Okay. Then well, let me ask you this. Do you have
any source of income [E.C.]?
{¶29} “[E.C.]: No.
{¶30} “COURT: Do you have any money saved up anywhere?
{¶31} “[E.C.]: For college.
{¶32} “COURT: Okay, how much you got saved up?
{¶33} “[E.C.]: I don’t know.
{¶34} “COURT: Well, I know you don’t know exactly but you’ve got
a pretty good idea.
{¶35} “[E.C.]: A couple hundred dollars.
{¶36} “COURT: Do you own any titled property, cars, trucks, or
anything like that, motorcycles?
{¶37} “[E.C.]: No.
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{¶38} “COURT: What would you estimate your net worth to be? If
you added up everything that you own, subtracted from that whatever you, whatever
debts you had, what would be your net worth?
{¶39} “[E.C.]: I’m not sure.
{¶40} “COURT: A couple million? Do you have any idea?
{¶41} “[E.C.]: No. A thousand dollars probably.
{¶42} “COURT: [E.C.’s mother], are you employed?
{¶43} “[E.C.’s mother]: Yes sir.
{¶44} “COURT: Where are you employed?
{¶45} “[E.C.’s mother]: I work for * * *.
{¶46} “COURT: Is that hourly employment or salary?
{¶47} “[E.C.’s mother]: Salary.
{¶48} “COURT: What’s your salary?
{¶49} “[E.C.’s mother]: About 40 thousand.
{¶50} “COURT: Pardon?
{¶51} “[E.C.’s mother]: 40 thousand.
{¶52} “COURT: How many in the household? You, [E.C]?
{¶53} “[E.C.’s mother]: Brother * * * another Sister * * *.
{¶54} “COURT: 4 total?
{¶55} “[E.C.’s mother]: Um-huh.
{¶56} “COURT: Okay, according to my eligibility charts for indigent
appointment of counsel that would put you in a bracket that is above what I’m
allowed to appoint a lawyer at county expenses. Okay? So your daughter is not
indigent. Okay? Now, sometimes lawyers want a retainer up front, and sometimes
people don’t have the money to do that. And under those circumstances then those
people are not indigent but they’re unable to obtain counsel. Under those
circumstances the Court can find a lawyer for you. I will appoint that lawyer however,
you’ll have the obligation to pay for that lawyer. So we’ve got two, two choices here
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with respect to proceeding with a lawyer. One of them is, I’ll give you additional time
to go out and hire a lawyer. The other one is I will find a lawyer, appoint that lawyer
with the understanding that the obligation to pay for it will be yours. Okay? Those
are the two ways that we can end up with a lawyer.
{¶57} “[E.C.]: We’ll just proceed without a lawyer.
{¶58} “COURT: Okay, is that what you want to do?
{¶59} “[E.C.]: Yes.” (07/15/2009 Tr. 1-4).
{¶60} Although it is apparent that the trial court considered or viewed this
dialogue to constitute an effective waiver of counsel, a closer examination of it
reveals that it was not in fact an effective waiver of appellant’s right to counsel
because appellant did not make that decision knowingly, voluntarily, and intelligently.
Two reasons form the basis of our conclusion.
{¶61} First, the Ohio Supreme Court has emphasized the important role a
juvenile’s parent plays in the context of a juvenile’s waiver of their right to counsel: “In
a delinquency proceeding, a juvenile may waive his constitutional right to counsel,
subject to certain standards, if he is counseled and advised by his parent, custodian,
or guardian. If the juvenile is not counseled by his parent, guardian, or custodian and
has not consulted with an attorney, he may not waive his right to counsel.” In re C.S.,
115 Ohio St. 3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, paragraph two of the
syllabus.
{¶62} The Second District, in J.F., 178 Ohio App. 3d 702, reversed a juvenile’s
delinquency adjudication and resulting commitment, in part because it found that J.F.
did not validly waive his right to counsel. J.F. argued on appeal that the trial court
violated his right to counsel because it failed to obtain a valid waiver of counsel. The
appellate court agreed stating:
{¶63} “In the present case, J.F.’s mother was present at the hearing, but she
simply requested continued treatment and asked that J.F. not be detained long
before being transported to DYS. There is no indication that J.F.’s mother counseled
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him about waiving his right to counsel. In fact, unlike the parent in the case of In re
E.H.[, 2d Dist. No. 22259, 2007-Ohio-6263], J.F.'s mother was not even asked
whether she believed that J.F. understood his constitutional rights.” Id. at ¶93.
{¶64} The court went on to conclude that the error was not harmless, as the
state had alleged. It pointed out that J.F. was not advised of, nor did he consider
possible defenses to the alleged violations or circumstances that might mitigate his
potential punishment as was required for him to make a valid waiver of counsel. Id. at
¶94.
{¶65} As was the case in J.F., there is no indication here that appellant’s
mother counseled her about waiving her right to counsel. Nor was appellant’s mother
asked whether she believed appellant understood her constitutional rights. And
appellant was never advised of possible defenses to the alleged violations or
circumstances that might mitigate her potential punishment. There is also no
indication that appellant consulted with an attorney or a guardian ad litem about
waiving her right to counsel. Thus, like in J.F., appellant did not enter a valid waiver
of her right to counsel.
{¶66} The second reason for our conclusion lies with the trial court’s
determination of appellant’s indigency. The Ohio Administrative Code sets forth the
standards for deciding whether a person is indigent. Ohio Adm.Code 120-1-03(D), in
effect at the time the trial court made its determination concerning appellant’s
indigency, indicated that a child’s indigence should be determined independently
from the affluence of the parent:
{¶67} “In determining eligibility of a child for court-appointed counsel in
juvenile court, only the child’s income shall initially be considered. The court is
encouraged to order parents who are not indigent to pay for the necessary costs of
representation for the child in delinquency, unruly, and traffic cases. In no case shall
a child be denied appointed counsel because a parent refuses to disclose their
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financial information or to participate in a reimbursement, recoupment, contribution,
or partial payment program.”
{¶68} As the Second District observed, “it makes no sense to presume, even
rebuttably, that a minor can afford counsel. The far more rational presumption is that
a minor cannot afford counsel. Of course, the minor’s parents may be able to afford
counsel.” In re R.B., 166 Ohio App. 3d 626, 2006-Ohio-264, 852 N.E.2d 1219, ¶26.
{¶69} This rational thinking has made its way into the current Ohio
Administrative Code which now provides that presumption:
{¶70} “(5) Juveniles are presumed indigent. In determining the eligibility of a
child for court-appointed counsel in juvenile court, only the juvenile’s income shall be
considered when determining if counsel should be appointed.
{¶71} “(a) A juvenile applicant’s parent should complete the recoupment
component of the affidavit, as the juvenile’s parents may be subject to recoupment,
contribution, or partial payment program as set forth in section 120.03 of the Revised
Code and rule 120-1-05 of the Administrative Code. However, a parent’s refusal to
complete the recoupment component of the affidavit of indigency shall in no way
impede the appointment of counsel for the juvenile.” Ohio Adm.Code 120-1-03(C).
{¶72} Based on our reading of the Ohio Administrative Code and the Second
District’s reasoning in R.B., we find that the trial court’s dialogue with appellant
concerning her indigency was not meaningful enough so as to have allowed her to
have made her waiver decision knowingly, voluntarily, and intelligently. In this case,
the discussion and consideration of appellant’s indigency was critically important,
especially considering her expressed desire to be represented by counsel.
{¶73} In sum, based on the facts and circumstances of this case, we conclude
that appellant’s waiver of her right to counsel was ineffective because appellant was
ill-equipped to make that decision knowingly, voluntarily, and intelligently. Appellant
was not adequately counseled and advised by her mother concerning her right to
counsel and the trial court’s discussion and consideration of appellant’s right to
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counsel and her indigency was a dialogue that was not quite meaningful enough for
appellant to have fully understood, and intentionally and intelligently relinquished her
right to counsel.
{¶74} Accordingly, appellant’s delinquency adjudication and disposition is
hereby reversed and this matter is remanded to the trial court for further proceedings
pursuant to law and consistent with this opinion.
Vukovich, J., concurs.
DeGenaro, J., concurs.