April 19, 2011
Removal Of Retained Counsel Subject To Immediate Appeal
From the web page of the Ohio Supreme Court:
The Supreme Court of Ohio held today that when a trial court issues a pretrial order removing a criminal defendant’s retained counsel of choice, that action is a final order subject to immediate review by a court of appeals.
The Court’s 7-0 decision, authored by Justice Evelyn Lundberg Stratton, reversed a ruling by the 8th District Court of Appeals.
Dantae Chambliss, James Bennett, and Travis Sanders were indicted on several drug-related offenses. Each defendant retained his own attorney, pleaded not guilty, and filed a request for discovery. Each defendant filed a motion to compel production of a search warrant affidavit and a motion for discovery. Each defendant filed at least one motion to continue trial based on denial of access to a requested affidavit, which remained sealed. In addition, each defendant filed a motion to suppress evidence and a motion for a trial separate from the other defendants. After the defendants’ motions for separate trials were denied, they filed motions to continue based on the fact that they had not yet received the search warrant affidavit despite repeated requests.
The defendants subsequently entered guilty pleas pursuant to a proposed plea agreement. However the trial judge refused to accept the agreement between the state and defense, and the defendants moved to withdraw their pleas. The trial court vacated the pleas of all three defendants, set trial, and granted a motion to unseal the search warrant affidavit. During a hearing on the day of trial, it became clear that the attorneys had not yet received the search warrant, and as a result, if required to proceed to trial without the necessary information, claimed they would be ineffective as counsel within the meaning of the Sixth Amendment. The trial court removed all three retained counsel, remanded all three defendants to the custody of the sheriff, ordered all three defendants to retain new counsel in less than two weeks, and set trial for the following month.
On review, the 8th District Court of Appeals vacated the trial court’s order remanding Chambliss, Bennett, and Sanders to jail, affirmed that their bonds remained in effect, and released the defendants. The court of appeals concluded, however, that the trial judge’s removal of the defendants’ counsel of choice was not a final and appealable order and dismissed their appeal as to that issue.
The defendants sought and were granted Supreme Court review of the 8th District’s holding that the removal of their counsel was not immediately appealable.
Writing for a unanimous Supreme Court in today’s decision, Justice Stratton noted that R.C. 2505.02(B)(4) sets forth a three-part test for determining whether a trial court order is “final” and appealable. Because the state had conceded that the removal of the defendants’ counsel of choice met the first two prongs of the statutory test, she wrote, the only question remaining was whether a party forced to delay his appeal of an order until after the trial court issued a final judgment in the underlying case “would not be afforded a meaningful or effective remedy.”
Justice Stratton observed that in its opinion the 8th District acknowledged that erroneous removal of a defendant’s counsel of choice would have such a fundamental impact on a trial that any conviction obtained by the state after such an error would be subject to “automatic reversal.” However, despite that recognition, Justice Stratton wrote, “(T)he appellate court still held that this court’s decision in State ex rel. Keenan v. Calabrese (1994) ... warranted a conclusion that the order removing appellants’ retained counsel was not a final, appealable order. We now conclude that it is a final, appealable order.”
In explaining the Court’s change in position, Justice Stratton wrote: “(S)everal years after this court’s per curiam decision in Keenan, the United States Supreme Court considered the issue [in United States v. Gonzalez-Lopez (2006)] and held that ‘the erroneous deprivation of the right to counsel of choice, “with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as “structural error.”’... This is because ‘[d]ifferent attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the “framework within which the trial proceeds” ... or indeed on whether it proceeds at all.’”
“Turning to the case at bar, the trial court ordered that all three retained counsel be removed as counsel and remanded defendants to the custody of the sheriff. The court of appeals concluded that the order removing counsel was not a final, appealable order, thus potentially forcing the defendants to run the gauntlet of trial twice.”
“A postconviction reversal of the trial court’s judgment would not be automatically effective. A criminal defendant might exhaust his or her resources during the first trial, thereby denying that defendant the counsel of his or her choice. Further, if counsel of choice were later deemed to have been erroneously removed, the subject matter of the first trial, including the strategy employed, witnesses cross-examined, etc., would be stale and likely weakened. This, in addition to the waste of scarce judicial resources, satisfies the third prong of R.C. 29505.02(B)(4) − rendering apostconviction appeal ineffective or meaningless − and compels a conclusion that a pretrial ruling disqualifying a criminal defendant’s retained counsel of choice is a final order, subject to immediate appeal.”
Justice Stratton emphasized that today’s ruling is limited to cases in which a criminal defendant’s retained counsel of choice is removed. “The issue of whether the removal of appointed counsel is a final, appealable order may involve different considerations that have not been briefed in this case. We leave that issue for another day,” she wrote.
“Further, we are examining only the issue of whether the denial of retained counsel of choice is a final, appealable order. The merits of the trial court’s decision in removing retained counsel of choice in this case are not before us. Because we hold that the denial of retained counsel of choice in a criminal proceeding is a final, appealable order, we reverse the judgment of the court of appeals and remand the cause to the court of appeals for further proceedings on the merits of the appeal."
The court's opinion is linked here. (Mike Frisch)
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