COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA Nos. 72032 and 72033 ACCELERATED DOCKET TATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION EFFREY B. ALLEN : : PER CURIAM Defendant-appellant : : : July 17, 1997 ATE OF ANNOUNCEMENT : OF DECISION : : HARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-304949 : UDGMENT : AFFIRMED ATE OF JOURNALIZATION : PPEARANCES: or plaintiff-appellee: For defendant-appellee: TEPHANIE TUBBS JONES, ESQ. JEFFREY B. ALLEN, PRO SE uyahoga County Prosecutor #290-894 HRISTOPHER L. FREY, ESQ. G.C.I. ssistant County Prosecutor 2500 S. Avon-Beldon Road he Justice Center, 8th Fl. Grafton, OH 44044 200 Ontario Street leveland, OH 44113 ER CURIAM: This cause came on to be heard upon the accelerated calendar ursuant to App. R. 11.1 and Loc. R. 25, the records from the court -2- f common pleas and the briefs. The issue in this appeal is whether relief will lie in ostconviction relief proceedings for a pro se claim of ineffective ssistance of counsel rendered by a suspended attorney whose only urport ed act of legal representation consisted of advising a etitioner that he should waive the right to a preliminary hearing. he trial court held that no prejudicial error occurred because a ullylicensed counsel represented petitioner at trial; therefore, ny denial of the right to counsel at the preliminary hearing was armless. We agree and decline to impose a per se rule that would itiate the results of a criminal trial in the absence of emonstrated error and prejudice resulting from the suspended ttorney's representation. The record shows that on December 9, 1993, the municipal court ppointed Thomas McMahon to represent petitioner Jeffrey Allen at he preliminary hearing. That same day, the municipal court nformed petitioner of his rights and petitioner choose to waive his ight to a preliminary hearing. The municipal court found probable ause to hold petitioner for trial and bound the matter over to the rand jury. The grand jury returned a four count indictment harging petitioner with counts of robbery, uttering, forgery and eceiving stolen property. At the arraignment, the court of common leasappointed petitioner a different attorney for trial. A jury ound petitioner guilty of robbery, uttering and receiving stolen roperty, and not guilty of forgery. We affirmed the conviction in tate v. Allen (1995), 102 Ohio App.3d 696. -3- Following direct appeal, petitioner learned that McMahon had een indefinitelysuspended from the practice of law prior to being ppointed to represent petitioner at the preliminary hearing. cMahon's disciplinary record began with a public reprimand esulting from neglect of a legal matter. See Disciplinary Counsel . McMahon (1992), 64 Ohio St.3d 460. When McMahon failed to pay rdered costs, the supreme court found McMahon in contempt and ranted him ten days within which to purge himself. See isciplinary Counsel v. McMahon (1993), 66 Ohio St.3d 1441. McMahon ailed to purge the contempt and on April 27, 1993, the supreme ourtordered his indefinite suspension. See Disciplinary Counsel . McMahon (1993), 66 Ohio St.3d 1464. The supreme court accepted cMahon's resignation as an attorney on April 29, 1997. See In re esignation of McMahon (1997), 78 Ohio St.3d 1223. The petition for postconviction relief asserted the sole ground hat petitioner had been denied his sixth amendment right to counsel t the preliminary hearing when the municipal court appointed an ttorne y whose license had been under suspension to represent etitioner. Petitioner averred that he relied upon McMahon's advice o waive the preliminary hearing, despite knowing that his nephew ad confessed to the charges. He claimed that a preliminary hearing ight have caused the police to investigate the matter further. In findings of fact and conclusions of law the trial court ejected this claim. While conceding that the preliminary hearing as a critical stage of the proceedings to which the right of ounsel attached, the trial court nonetheless refused to find per -4- e error. The trial court noted that McMahon did not represent etitioner at trial, so any denial of the right to counsel at the reliminary hearing stage would have been harmless. In reaching his conclusion, the trial court distinguished our decision in State . Newcome (1989), 62 Ohio App.3d 619, where we held that a trial ourt erred by refusing to permit, with no objection from the state, defendant's motion to withdraw a guilty plea that he been entered hileNewcome was represented by counsel whose license to practice aw had been suspended. The trial court considered the guilty plea n Newcome to be the ultimate act in the defense of the criminal ase, whereas petitioner's claimed violation occurred at a point here the alleged denial of the right to counsel could be rectified ithout adverse consequences to petitioner's rights. The trial court further found petitioner did present a full efense, including alibi witnesses. Given this full opportunity to resent a defense with licensed counsel, the trial court found that ranting a new trial would not change the outcome of the verdict. The Sixth Amendment, made applicable to the states through the ue Process Clause of the United States Constitution, guarantees an ccused the assistance of counsel. The right to counsel exists t all critical stages of the criminal process, and a preliminary earing is considered just such a critical stage. See State v. pates (1992), 64 Ohio St.3d 269, paragraph one of the syllabus, iting Coleman v. Alabama (1970), 399 U.S. 1. Clearly, McMahon's uspension from the practice of law prevented him from representing etitioner in the capacity as an attorney at the preliminary -5- earing, but McMahon's suspension does not necessarily suggest a per e rule that petitioner lacked counsel in a way that would void is conviction. Violati ons of the Sixth Amendment right to counsel do not ecessarily require per se reversals of convictions. In State v. onnell (1991), 61 Ohio St.3d 179, the supreme court rejected the mposition of a per se rule for Sixth Amendment violations occurring t arraignment and held that the accused must demonstrate that he as prejudiced by the absence of counsel at the arraignment. Id. t 182; see, also, State v. Evans (1992), 63 Ohio St.3d 231, 250. Petitio ner cites to our holding in State v. Newcome as eflecting our adoption of a per se rule relating to Sixth Amendment iolation s, but the issue in Newcome was whether the trial court bused its discretion by refusing to permit Newcome to withdraw his uilty plea after the parties learned that Newcome's attorney had een under suspension at the time. With the state agreeing that ewcome should have been permitted to withdraw his guilty, we held hat Newcome demonstrated manifest injustice sufficient to permit he plea withdrawal. 62 Ohio App.3d at 620. In reaching this onclusion, we stated, [d]efendant did not receive his onstitut ional right to the assistance of counsel at the time he led guilty because he was represented by an attorney who was uspended from the practice of law. Id. The quoted portion of Newcome should not be read as imposing perse rule. Because the state conceded the issue on appeal, we ad no occasion to engage in any analysis on the right to counsel -6- ssue. Moreover, as the trial court noted, the violation in Newcome ulminated with an uncounseled guilty plea, the ultimate act in a riminal case. The extent of petitioner's lack of representation n this case, however, consisted only of waiving the right to a reliminary hearing. As a practical matter, waiving the preliminary earing simply bound the matter over to the grand jury, which found robable cause to return an indictment. The trial court appointed ifferent counselto represent petitioner at his arraignment in the ourt of common pleas, and petitioner's Sixth Amendment rights were reserved throughout the trial. Petitioner argues that a preliminary hearing would have enabled im to present evidence that his nephew committed the offense and ight have ended the investigation against him at that point in ime. This is a tenuous proposition at best. While we do not know hat transpired before the grand jury, our opinion in Allen, supra, howed that two eyewitnesses to the offense positively identified etitioner as the assailant. 102 Ohio App.3d 699. At trial, etitioner's nephew claimed culpability for the offenses, yet gave nconvinc ing testimony as to the time of the offenses, saying it ccurred at 7:41 a.m. while the victim testified the offense ccurred at 1:21 p.m. We held that the jury was free to disbelieve the nephew's] testimony that he committed the robbery. Id. at 02. Presumably, these same facts would have been presented to the rand jury, and we have no doubt that these facts would not have revented the grand jury from returning an indictment. onsequently, we find petitioner has failed to show any prejudice -7- esulting from McMahon's advice to waive the preliminary hearing. Our position is consistent with federal court decisions onstruing alleged per se violations of the Sixth Amendment. Per eviolations of the right to counsel have only been found to arise n one of two limited circumstances: (1) counsel was not, at the ime of the accused's trial, duly licensed to practice law because f a failure ever to meet the substantive requirements to practice aw or (2) the attorney is implicated in the accused's crimes. See ellamy v. Codgell (C.A.2, 1992), 974 F.2d 302, 306; Vance v. Lehman C.A.3, 1995), 64 F.3d 119, 122. As to the first criteria (which s applicable to the issue raised in this appeal), the constitutional question is whether the court has satisfied itself f the advocate's competence and authorized him to practice law. eese v. Peters (C.A.7, 1991), 926 F.2d 668, 670. Reeseis very similar to this case. Reese's attorney had been uspended from the practice of law after failing to pay his bar ues, but before assuming the defense of Reese's case. Reese argued hat the suspension equated to no assistance of counsel for urpose s of the trial. The court disagreed, noting that istorically, licensing of attorneys had not been a prerequisite for he practice of law. The word counsel as used in the 1790's imply meant a person deemed by the court fit to act as another's egalrepresentative and inscribed on the list of attorneys. Id. t 679. Recognizing that the tradition of appearing in court ithout express licensure survives to this day by admission pro hac ice, the Seventh Circuit found such admission could bear little or -8- o relationship to the local bar to which the attorney sought dmission pro hac vice. Id. at 669-670. Reese considered that dmission to a federal bar would not be endangered by an attorney's ailure to pay state bar association dues. Id. citing In re Ruffalo 1968), 390 U.S. 544; see, also, United States v. Hoffman (C.A.9, 984), 733 F.2d 595, 599-600, cert. denied, 469 U.S. 1039 (rejecting er se rule that attorney's suspension by state bar necessarily esults in the denial of assistance of counsel in the federal court f another state). McMahon's suspension did not implicate his qualifications ever to meet the substantive qualifications to practice law in the tate of Ohio. McMahon's admission to the bar necessarily indicated ither that he passed the Ohio bar examination or was approved for dmission without examination by virtue of admission to the bar of nother state. See, generally, Gov.Bar.R. Sections 1 and 9. Having ained proper admission to the bar, his initial qualifications are ot suspect and do suggest a per se violation of the right to ounsel. Contrast Solina v. United States (C.A.2, 1983), 709 F.2d 60 (per se rule applied because counsel had never been admitted to he bar of any state); United States v. Novak (C.A.2, 1990), 903 .2d 883 (per se violation when defendant represented by person who raudulently gained entry to the New York Bar by obtaining improper xemption). Solina noted, [i]n construing the original nderstanding of the term `counsel' we do not intimate that any echnical defect in the licensed status of a defendant's epresentative would amount to a violation of the Sixth Amendment. -9- 09 F.2d at 167. The cases reject such technical defects in an ttorney's statusin a number of situations. See, e.g., Collins v. tate (1991), 74 Ohio App.3d 660 (revocation of defense counsel's icense following defendant'scriminal trial did not void conviction n Sixth Amendment grounds); Vance v. Lehman (C.A.3, 1995), 64 F.3d 19 (representation of defendant by attorney whose license was evoked after trial because of prior unrelated professional conduct id not per se deny defendant Sixth Amendment right to counsel); aterho use v. Rodriguez (C.A.2, 1988), 848 F.2d 375 (attorney uspension occurring mid-trial does not constitute a Sixth Amendment iolation). More to the point, in Kieser v. People of the State of New York 1995), 56 F.3d 16, the Second Circuit found no violation of the ight to counsel when an attorney represented a defendant at an rraignment despite being temporarily suspended from the New Jersey ar. Citing Solina, the court found this a technical defect that id not violate Sixth Amendment rights. Id., at 17. Finally, in nited States v. Stevens (C.A.10, 1992), 978 F.2d 565, the Tenth ircuit rejected a per se rule and held that legal assistance rovided by an attorney who had been disbarred by the federal court, ut who did not receive notification of the disbarment until after rial, did not constitute error in the absence of demonstrated rejudice. Id., at 567-568. Certainly, McMahon's suspension for neglecting the legal atter of a client reflected poorly on his performance as an ttorne y, but it has long been considered that the breach of an -10- thical standard does not necessarily make out a denial of the Sixth mendment guarantee of assistance of counsel. Nix v. Whiteside 1986), 475 U.S. 157, 165; Bond v. United States (C.A.7, 1993), 1 .3d 631, 636-637. Importantly, McMahon's disciplinary action ccurred in an unrelated case and had nothing to do with his epresentation of petitioner.The best petitioner can offer to show hat McMahon violated an essential duty is to say that McMahon dvised him to waive the preliminary hearing and permit the matter o go to the grand jury. Given the compelling evidence that uggested probable cause to issue an indictment, we cannot say that he result would have been different had petitioner been appoint ully licensed counsel. Accordingly, we find petitioner has failed o show a constitutional error in the proceedings below. The ssigned error is overruled. Judgment affirmed. -11- It is ordered that appellee recover of appellant its costs erein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this ourt directing the Court of Common Pleas to carry this judgment nto execution. A certified copy of this entry shall constitute the mandate ursuant to Rule 27 of the Rules of Appellate Procedure. John T. Patton, Judge David T, Matia, Presiding Judge Robert E. Holmes, Justice* *SITTING BY ASSIGNMENT: OBERT E. HOLMES, RETIRED JUSTICE OF THE SUPREME COURT OF OHIO) N.B. This entry is an announcement of the court's decision. ee App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision ill be journalized and will become the judgment and order of the ourtpursuant to App.R. 22(E) unless a motion for reconsideration ith supporting brief, per App.R. 26(A), is filed within ten (10) ays of the announcement of the court's decision. The time period or review by the Supreme Court of Ohio shall begin to run upon the .