In Re Miami Cty. Grand Jury Dir. to Creager , 82 Ohio App. 3d 269 ( 1992 )

The sole issue in this case is whether the indigent appellant has either a due process or equal protection right to the appointment of counsel in this appeal.

An absolute right to counsel exists "in all criminal prosecutions" under the Sixth Amendment where the penalty imposed is an absolute loss of liberty to which every citizen is entitled. Argersinger v. Hamlin (1972), 407 U.S. 25,92 S.Ct. 2006, 32 L.Ed.2d 530.

It is also clear from the case law that loss of liberty is a factor to be weighed in favor of appointing counsel in noncriminal cases.

As a person's interest in liberty diminishes, so does his right to appointed counsel. Lassiter v. Dept. of Social Serv. ofDurham Cty. (1981), 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640. There is no per se right to counsel in parole or probation revocation hearings because the loss of liberty is a conditional loss and not an absolute loss, and because revocation proceedings are not "criminal prosecutions" within the meaning of the Sixth Amendment. However, there may be a due process right to appointed counsel.Gagnon v. Scarpelli (1973), 411 U.S. 778, 93 S.Ct. 1756,36 L.Ed.2d 656.

The Due Process Clause and the Equal Protection Clause require the appointment of counsel in juvenile delinquency proceedings which are akin to criminal prosecutions. In reGault (1967), 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. Equal protection and due process may require the appointment of counsel for indigent parents whose fundamental right to maintain a family is challenged by parental termination proceedings.State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 15 O.O.3d 3, 399 N.E.2d 66. This case also stated that the Equal Protection Clause may require the appointment of counsel for appeals because there is no due process guarantee of appeal.

The Ohio Supreme Court adopted a balancing test of three factors to determine whether due process requires the appointment of counsel where an indigent defendant faces the state as an adversary in a paternity suit. State ex rel. Cody v.Toner (1983), 8 Ohio St.3d 22, 8 OBR 255, 456 N.E.2d 813. The factors are "(1) the private interest affected, (2) the risk of error if current procedures are used versus the probative value of additional procedural safeguards, and (3) the burden which the proposed additional procedural safeguards would place upon the government."

The court found Cody's private interests to be substantial because of his pecuniary interest in avoiding the payment of support, his liberty interest threatened if he failed to pay support, and his compelling interest in the accuracy of the paternity determination. The court also found the risk-of-error factor to weigh in favor of Cody because the integrity of the paternity determination could be damaged absent counsel. The court further found that the state's monetary interest in refusing to provide counsel did not outweigh the other two factors. The court then held that the denial of court-appointed counsel violated due process guarantees.

In my view, Creager's private interests are not substantial. It is true that his conditional liberty is at stake. However, he has the key to void the order appealed from by simply providing his handwriting sample. His conditional liberty interest is further diminished by the fact that he is already incarcerated on a criminal offense unrelated to the proceedings before us.

It is also my view that the risk of error factor does not weigh in favor of the appellant. His future liberty interest may be at stake if his writing exemplar provides evidence of a crime. However, the anticipated use of his handwriting evidence is not for its content; its proposed use is for identification purposes only. Assuming the writing exemplar provides evidence relevant to issues in a future criminal case, the accuracy of the identification evidence will be determined in the subsequent proceedings. The innocuous act of giving a handwriting sample simply does not have the finality that a judgment finding paternity has.

It is also settled law that evidence which is obtained by compulsion in violation of the Fifth Amendment or obtained by a seizure in violation of the Fourth Amendment is not admissible into evidence. If Creager ultimately provides the writing exemplars, his actions in doing so will result from coercion and are not voluntary. If Creager's constitutional rights are violated by the order of the trial court, he will get a second bite at the apple to challenge the violation if a criminal case develops in the future.

The majority does not weigh this factor in favor of the state as heavily as I do because it says that the second bite will be limited by the doctrine of collateral estoppel. This issue-preclusion doctrine applies only where the same issue has been fully litigated between the same parties in a prior judicial proceedings. The doctrine does not apply under the facts before us because the issues are not the same. The issue presently before us is whether counsel should be appointed. The issue in a motion to suppress the handwriting exemplars will be whether the evidence was obtained by violating constitutional rights.

The third factor weighs entirely in favor of the state. The appointment of counsel will be costly in both time and money on an issue which has been settled by the United States Supreme Court.

In my view, the balancing falls heavily in favor of the state. I would overrule the motion to appoint counsel and affirm the order of the trial court.

I see no point in appointing a lawyer at state expense in order to assist the appellant in pursuing his frivolous appeal.