State v. Kasler , 2013 Ohio 3850 ( 2013 )

[Cite as State v. Kasler, 2013-Ohio-3850.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 13CA4
:
vs. :
: DECISION AND JUDGMENT
KELLY KASLER, : ENTRY
:
Defendant-Appellant. : Released: 08/30/13
_____________________________________________________________
APPEARANCES:
Timothy Young, Ohio Public Defender, and Jason A. Macke, Assistant State
Public Defender, Columbus, Ohio, for Appellant.
Patrick J. Lang, Athens City Law Director, and James K. Stanley, Athens
City Prosecutor, Athens, Ohio, for Appellee.
_____________________________________________________________
McFarland, P.J.
{¶1} Kelly Kasler appeals the decision of the Athens County
Municipal Court denying her application for appointment of counsel. On
appeal, Appellant raises only one assignment of error, contending that the
trial court erred by denying her court-appointed counsel. Because we
conclude that the trial court abused its discretion in denying Appellant’s
application for appointment of counsel, we sustain Appellant’s sole
assignment of error. Accordingly, the decision of the trial court is reversed
Athens App. No. 13CA4 2
and this matter is remanded for further proceedings consistent with this
opinion.
FACTS
{¶2} Appellant, Kelly Kasler, is a twenty-one year old college student
enrolled at Ohio University in Athens, Ohio. Appellant lives in Athens,
Ohio, and shares an apartment with four roommates. On October 28, 2012,
Appellant was arrested and charged with obstructing official business, in
violation of R.C. 2921.31, and resisting arrest, in violation of section
13.04.09 of the Athens City Code, both second degree misdemeanors.
Appellant appeared in court on October 29, 2012, entered a not guilty plea,
and requested court-appointed counsel. Her father posted a cash bond on her
behalf.
{¶3} The next day, on October 30, 2012, Appellant completed and
filed a financial disclosure/affidavit of indigency form. Appellant listed her
mailing address as her parents’ home in Vandalia, Ohio, and listed her
father, mother and sister as “other persons living in household.” Under the
income and employment section, she stated her gross monthly income was
$400.00 and her employer as O’Charley’s, and listed her total liquid assets
as $150.00. The trial court denied Appellant’s application the same day,
noting on the form that it needed “household income + expenses.”
Athens App. No. 13CA4 3
Appellant filed a second form on November 6, 2012, providing the same
address and household information, but this time stating her gross monthly
income was $0 and noting that she only works during the summer when she
is at home. The trial court again denied Appellant’s application, noting that
it “still need[ed] income and expenses.”
{¶4} Appellant filed a third form on November 14, 2012, providing all
of the same information, and also noting that her parents’ income is
$100,000, but that her parents were not helping her with any attorney fees,
court costs or fines. The trial court again denied Appellant’s application,
making a notation of “Denied-Family income” on the form. Appellant filed
a fourth and final form on November 21, 2012. On that form, Appellant
listed her Athens apartment address and listed persons living in her
household as herself and her four roommates. She listed her income as $0
and her total expenses as $775.00 a month. The trial court denied this
application as well, noting on the application that it needed “family income
and expenses.”
{¶5} The Ohio Public Defender thereafter became involved, although
the record is unclear as to how this came about. An assistant public defender
appeared at a scheduled hearing to determine indigency on January 14, 2013.
At the hearing, the assistant public defender argued that Appellant’s parents
Athens App. No. 13CA4 4
had no duty to support her under Ohio law and that as such, their income
should be excluded when determining indigency. The trial court took
testimony from Appellant and a transcript from the hearing was created.
{¶6} A review of the transcript indicates that the trial court obtained
the following information from Appellant: 1) Appellant is a dependent on
her parents’ tax returns and does not file her own taxes; 2) Appellant is
covered on her parents’ health insurance; 3) Appellant’s parents pay her
tuition, room and board, and transfer money from her college account every
month to pay her bills and rent; 4) Appellant pays for her own food; and 5)
Appellant opted out of the student legal services coverage for Ohio
University Students. Based upon this information, the trial court
subsequently issued a written decision on January 17, 2013, denying
Appellant’s application for appointment of counsel.
{¶7} The Ohio Public Defender’s office thereafter entered an
appearance on behalf of Appellant on January 25, 2013, and filed a notice of
appeal. In a hearing held on January 28, 2013, the trial court granted a stay
of the proceedings pending the outcome of the appeal. Appellee then filed a
motion to dismiss Appellant’s appeal, arguing that the order denying
appointment of counsel was not a final, appealable order. However, on
March 14, 2013, this Court denied Appellee’s motion to dismiss, holding the
Athens App. No. 13CA4 5
order was final and appealable. Thus, we now consider the sole assignment
of error set forth by Appellant.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED BY DENYING APPOINTED
COUNSEL TO DEFENDANT.”
LEGAL ANALYSIS
{¶8} In her sole assignment of error, Appellant contends that the trial
court erred by denying her application for appointed counsel. Appellant
contends that the trial court erroneously relied upon a definition of
household income found in 26 U.S.C. §36B (c)(3)(d)(2)(A), which is a
provision under the Internal Revenue Code, in determining Appellant was
not indigent and thus denying her application for court-appointed counsel.1
More specifically, Appellant contends that her parents’ income should have
been excluded from her household income because they have no duty to
support her, as she is an adult.
{¶9} The State, in turn, argues that the trial court appropriately
consulted other authorities in determining the definition of household
income, as that term is not defined in Ohio Administrative Code Chapter 120
1
The provision is actually contained in a section of the Internal Revenue Code entitled “Refundable credit
for coverage under a qualified health plan.”
Athens App. No. 13CA4 6
or Revised Code Chapter 120, which govern the Ohio Public Defender
Commission, Public Defenders, and which set forth the standards for
indigency and indigency determinations. The State further contends that the
trial court’s determination with respect to Appellant’s indigency should be
reviewed under an abuse of discretion standard.
{¶10} The Sixth Amendment to the United States Constitution, and
Section 10, Article 1 of the Ohio Constitution guarantee the right to
assistance of counsel in all criminal prosecutions that may result in jail
sentences. State v. Wellman, 37 Ohio St.2d 162, 171, 309 N.E.2d 915(1974); citing Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006 (1972).
“The constitutionally protected right to the assistance of counsel is absolute
[and] absent a knowing and intelligent waiver, no person may be imprisoned
for any offense * * * unless he was represented by counsel at his trial.” State
v. Tymcio, 42 Ohio St.2d 39, 43, 325 N.E.2d 556 (1975); citing Argersinger
at 37 and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792 (1963).
{¶11} As this Court has previously noted in State v. Tackett, 4th Dist.
No. 04CA12, 2005-Ohio-1437, ¶ 28:
“The right to assistance of court-appointed counsel in criminal
cases is a factual issue in Ohio that does not necessarily depend
on the defendant's indigency or whether he or she should be
Athens App. No. 13CA4 7
able to employ counsel, but on whether, in fact, the defendant is
unable to employ counsel.” Citing State v. Tymcio at 45; State
v. McLean, 87 Ohio App.3d 392, 395, 622 N.E.2d 402 (1993).”
“Many factors, financial and otherwise, may impinge upon an accused's
ability to obtain counsel, and these factors may vary from case to case.”
Jackson v. Wickline, 153 Ohio App.3d 743, 746, 2003-Ohio-4354, 795
N.E.2d 1248; citing Tymcio at 44; see also, Brook Park v. Kirsch, 138 Ohio
App.3d 741, 745, 742 N.E.2d 224.
{¶12} The determination of whether a criminal defendant is indigent
and, thus, in need of appointed counsel is a matter within the sound
discretion of the trial court. See State v. Weaver, 38 Ohio St.3d 160, 161,
527 N.E.2d 805 (1988). The determination of the trial court in this regard
will not be reversed on appeal absent an abuse of discretion. Id. We note
that an abuse of discretion is more than an error of law or judgment; it
implies that the court's attitude was unreasonable, arbitrary or
unconscionable. State v. Clark, 71 Ohio St.3d 466, 470, 644 N.E.2d 331,
335 (1994); State v. Moreland, 50 Ohio St.3d 58, 61, 552 N.E.2d 894, 898
(1990); State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144, 149
(1980).
Athens App. No. 13CA4 8
{¶13} In reviewing for an abuse of discretion, appellate courts must
not substitute their judgment for that of the trial court. See State ex rel.
Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 732, 654 N.E.2d
1254 (1995); In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d
1181 (1991); Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301(1990). To show an abuse of discretion, the result must be so palpably and
grossly violative of fact or logic that it evidences not the exercise of will but
the perversity of will, not the exercise of judgment but the defiance of
judgment, not the exercise of reason but instead passion or bias. Vaught v.
Cleveland Clinic Found., 98 Ohio St.3d 485, 2003-Ohio-2181, 787 N.E.2d
631, ¶ 13; Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662
N.E.2d 1 (1996).
{¶14} Section 5(A), Article IV, of the Ohio Constitution, authorizes
the Supreme Court of Ohio to establish Rules of Superintendence. Ohio
Superintendence R. 22 “Verification of indigency” provides as follows:
“[w]here required by law to appoint counsel to represent
indigent defendants in cases for which the county will apply to
the Ohio Public Defender Commission for reimbursement of
costs, the court shall require the applicant to complete the
financial disclosure form. The court shall follow rules
Athens App. No. 13CA4 9
promulgated by the Commission pursuant to division (B)(1) of
section 120.03 of the Revised Code as guidelines to determine
indigency and standards of indigency.”2
R.C. 120.03(B)(1) deals with standards of indigency and provides that
“the commission shall consider an indigent person to be an individual who at
the time his need is determined is unable to provide for the payment of an
attorney and other necessary expenses of representation.”
{¶15} Additionally, Ohio Administrative Code, Section 120-1-03
“Standards of Indigency” states in part, as follows:
“The Ohio public defender commission's standards for
determining indigency status are promulgated pursuant to
sections 120.03 and 120.05 of the Revised Code. Further
considerations include State vs. Tymcio (1975), 42 Ohio St.2d.
39 and the Ohio supreme court rules of superintendence. The
pivotal issue in determining indigency is not whether the
applicant ought to be able to employ counsel but whether the
applicant is, in fact, able to do so.
2
The State’s brief points out that Athens County is not reimbursed by the Ohio Public Defender, but rather
has a contract with the state public defender to provide legal services to indigent criminal defendants. We
find this distinction to be immaterial to our analysis.
Athens App. No. 13CA4 10
(A) Criteria: When any court is required by law to appoint
counsel for any applicant asserting indigent status, the basic
criteria for determining indigency status shall include:
(1) Wages and earnings from employment, unemployment
compensation, workers compensation, child support
pension/social security compensation, Ohio works
first/temporary assistance to needy families (TANF) Program
compensation, disability compensation, and all other similar
forms of compensation/governmental assistance comprising
household income;
(2) Other financial assets, including but not limited to available
cash reserves in savings and checking account, stocks, bonds,
certificate of deposit, or other liquid assets; other similar
ownership or entitlement to available financial resources with
which the applicant might hire legal counsel; but excluding
property necessary to maintain employment;
(3) Consideration of the number and age of the applicant's
dependents;
(4) Consideration of basic living costs, including housing rent
and/or mortgage payments, child support actually paid, child
Athens App. No. 13CA4 11
care expenses (for employed applicants only), health insurance,
medical/dental expenses, Associated costs of caring for infirm
family member, employment transportation costs, cost of fuel,
food, telephone, utilities, taxes owed, credit cards/other loan
payments and other similar basic costs of living;
(5) Consideration of court-imposed obligations, any bail/bond
expenses for the particular offense at issue, and other similar
costs associated with the particular legal proceeding.
(6) If the spouse of the applicant is the victim, the spouse's
income shall not be included for the determination of
indigency.” (Emphasis added).
{¶16} Finally, R.C. 120.05 “Determination of Indigency”
provides that “[t]he determination of indigency shall be made by the
state public defender, subject to review by the court.” Hence, the
abuse of discretion standard of review discussed above.
{¶17} We conclude that a review of the trial court’s decision indicates
that the trial court, while mentioning the principles set forth in Tymcio,
failed to actually apply those principles and as a result issued a decision that
fails to comport with the spirit of the Tymcio decision. The trial court
appears to have limited its analysis to the issue of “household income,”
Athens App. No. 13CA4 12
admittedly a factor to be considered when determining indigency, but which
is undefined in the pertinent sections of the Revised and Administrative
Codes discussed herein. Although consideration of household income is
clearly a factor in the determination of indigency, it is not the sole
consideration. Further, the record reflects that in considering household
income, the trial court refused, despite the urging of the Ohio Public
Defender, to take into consideration the fact that because Appellant was an
adult, her parents had no legal duty to financially support her. In fact, the
trial court went so far as to state in its decision that “there is no legal nexus
between duty of support and household income.” We disagree with the trial
court’s reasoning.
{¶18} Although mentioned above, we reiterate, “[t]he 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.’ ” Tymcio, supra, paragraph one of the syllabus. In fact,
in a previous decision this Court noted that a defendant still has the right to
appointed counsel “even upon a finding that he was not indigent if he was, in
fact, actually unable to obtain counsel for another reason.” State v.
Purnhagen, 4th Dist. No. 93-CA-551, 1994 WL 59263, FN3; relying on State
Athens App. No. 13CA4 13
v. Tymcio at ¶ 39. Further, the Eleventh District has noted the question of
indigency is not always absolute. State v. Pasqualone, 11th Dist. No. 97-A-
0034, 1999 WL 262174, *4 (stating that “[t]o a certain extent, we agree with
appellant that indigency is not an absolute concept. It is entirely conceivable
that a defendant may be indigent for one purpose, but not for another.”)
{¶19} In fact, the Tymcio court expounded upon the issue of
indigency, noting that the determination of indigency depends upon the
nature of the particular case. Tymcio at 43. For example, we include the
following reasoning from Tymcio, verbatim:
“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
Athens App. No. 13CA4 14
defined, were the only actual fact bearing on the inability to
obtain counsel in this and other cases. * * * But it is not.”
Tymcio at 43-44. (Footnote omitted.).
Further, the Supreme Court of Ohio acknowledged in Tymcio that “[m]any
factors impinge upon a defendant’s inability to obtain counsel, factors which
may differ greatly from case to case.” Id. at 44. Ultimately, the Tymcio
court concluded that “[w]hen 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.”3 Id. at 45.
{¶20} In the present case, although Appellant is a member of her
parents’ household, which household income exceeds the limit for indigency
status and appointed counsel, Appellant represented to the trial court
repeatedly that her parents were not assisting her in employing counsel. The
Ohio Public Defender’s Office argues that the fact that Appellant’s parents
had no legal duty to support her should have been taken into consideration
when determining Appellant’s eligibility for court-appointed counsel. We
agree.
{¶21} As argued by Appellant throughout these proceedings, R.C.
3119.86 provides that the duty of support to a child does not continue
3
In reaching this conclusion, the Court also stated that “[i]n such a case, appropriate arrangements may be
subsequently be made to recompense appointed counsel for legal services rendered.”
Athens App. No. 13CA4 15
beyond the child’s eighteenth birthday unless certain conditions, none of
which apply here, exist. In State ex rel. Seigler v. Rone, 42 Ohio St.2d 361,
362, 328 N.E.2d 811 (1975), a question regarding the defendant’s indigency
arose when the defendant requested a transcript to be prepared at state
expense for purposes of appeal, when his brother had provided funds for
retaining both trial and appellate counsel. The Supreme Court of Ohio
determined that under those circumstances, and in light of the fact that none
of the defendant’s relatives “volunteered” to purchase a transcript for him,
“the expense of providing a transcript, if one [was] needed, must be borne by
the public.” Id.{¶22} In reaching this decision, the Court expressly considered the
issue of duty of support as follows:
“This assertion of nonindigency is based on the fact that
appellee's brother provided the funds for retaining both trial and
appellate counsel. However, this fact is immaterial. Here, we
are concerned with appellee's ability to secure a transcript, not
his brother's; a criminal defendant's brother has no legal duty to
provide the accused with the monetary means to prosecute an
appeal.” Id.Athens App. No. 13CA4 16
Thus, based upon this reasoning, it appears that an adult criminal defendant's
family member, whether a sibling or a parent, has no legal duty to provide
the accused with the monetary means to defend himself or herself. As such,
although Appellant’s parents were funding her college education, they had
no legal duty to do so, and likewise had no legal duty to employ counsel in
her defense of this criminal matter.
{¶23} We believe this reasoning comports with the spirit of the
Tymcio decision, which directs us to focus not on whether Appellant “ought”
to be able to hire counsel, but rather to focus on Appellant’s inability to
employ counsel, taking into consideration the particular facts of her
situation. It appears the trial court determined that Appellant “ought” to be
able to hire counsel because her parents had the financial means to do so,
and because they were otherwise supporting her. However, as the Rone
court indicated, the question is not whether Appellant’s parents have the
ability to employ counsel, but rather, the question is whether Appellant has
the ability. Based upon the information provided in Appellant’s four
applications for court appointed counsel, we believe she demonstrated her
need and eligibility.
{¶24} In light of the foregoing, we conclude that the trial court abused
its discretion in denying Appellant’s application for court-appointed counsel.
Athens App. No. 13CA4 17
In reaching this decision, much like the trial court below, we limit and
narrowly tailor our holding to the facts of this particular case. Therefore, we
find Appellant’s sole assignment of error to be meritorious. Accordingly,
the decision of the trial court is reversed, and this matter is remanded for
further proceedings consistent with this opinion.
JUDGMENT REVERSED
AND CAUSE REMANDED.
Athens App. No. 13CA4 18
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens
County Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.