COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73154 CITY OF GARFIELD HEIGHTS : ACCELERATED DOCKET : Plaintiff-appellee : JOURNAL ENTRY : AND -vs- : OPINION : THOMAS STEFANIUK : PER CURIAM : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: APRIL 16, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Garfield Heights Municipal Court - Case No. 96-TRD-4111 JUDGMENT: Reversed and Remanded DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JAMES MCGRATH, IV, ESQ. WALTER P. BUBNA, ESQ. GARFIELD HEIGHTS PROSECUTOR 5700 Pearl Road, Suite 304 5555 Turney Road Cleveland, Ohio 44129 Garfield Hts., Ohio 44125 PER CURIAM: Appellant, Thomas Stefaniuk, appeals the order of the Garfield -2- Heights Municipal Court finding appellant in contempt and the order denying appellant's motion to mitigate sentence. For the following reasons, we reverse and remand. Appellant pled no contest to driving without a valid license, speeding and failure to wear a seat belt. As part of the plea bargain, $700 of fines and 180 days in jail were suspended, and appellant was order to do 40 hours of community service. Appellant appeared at trial without counsel. The journal entry entering the verdict and sentence was on a printed form. The form language stated, The Defendant was duly advised of his/her constitutional rights, and the provisions of O.R.C. Sections 2937.02 and 2937.07 were complied with by the Court. Appellant failed to appear for his community service, failed to attend two meetings with his probation officer and failed to attend a probation violation hearing. Appellant wrote a letter to the court explaining that he missed the probation meetings because he was attending Miami University in Oxford, Ohio. The court sent appellant a letter informing him that a hearing was set for September 3, 1997. The letter stated: Please notify your counsel of the above scheduled court date. The purpose of the hearing was to hear contempt charges against appellant, but the letter does not state that appellant was charged with contempt. On September 3, 1997, appellant appeared at the contempt hearing without counsel. Neither the transcript of the contempt proceedings nor the journal entry indicate that appellant was -3- informed of his right to counsel or that appellant waived his right to counsel. At the hearing, appellant stated that he did not attend the community service because he had a conflict with his summer job. Appellant was found in contempt and sentenced to thirty days in jail. Appellant's motion for mitigation of the thirty day sentence was denied. After serving thirteen days of his sentence, appellant was released on bond by this court. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED TO THE SUBSTANTIAL PREJUDICE OF THE DEFENDANT-APPELLANT BY FINDING HIM IN CONTEMPT AND SENTENCING HIM TO THIRTY (30) DAYS IN JAIL (FOR NO OPERATOR'S LICENSE AND SPEEDING), WHEN THE RECORD IS DEVOID OF HIS KNOWING INTELLIGENT AND VOLUNTARY WAIVER OF COUNSEL AND WHERE THE TRIAL COURT FAILED TO ADEQUATELY INFORM HIM OF HIS RIGHT TO COUNSEL, AND THE RECORD IS DEVOID OF DEFENDANT BEING GIVEN AN OPPORTUNITY TO DEFEND HIMSELF. There is a conflict in the appellate decisions concerning whether a contemnor in a civil contempt proceeding is entitled to appointedcounsel. In re Calhoun (1976), 47 Ohio St.2d 15 held that in a civil contempt case, the contemnor did not have a right to appointed counsel. Some appellate districts continue to follow Calhoun. See Courtney v. Courtney (1984), 16 Ohio App.3d 329, 335, Thomas v. Thomas (Oct. 3, 1990), Summit App. No. 14581, unreported, Recco v. Recco (April 20, 1992), Tuscawaras App. No. 91AP100075, unreported. Other districts hold that Calhoun has been overruled by Lassiter v. Dept. of Social Serv. of Durham Cty. (1981), 452 -4- U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640. See Schock v.Sheppard (1982), 7 Ohio App.3d 45, In re Miami Cty. Grand Jury Dir. to Creager (1992), 82 Ohio App.3d 269, In the matter of Estate of Straub (Feb. 13, 1992), Ross App. No. 1728, unreported. We need not reach the issue of whether a civil contempt proceeding requires appointed counsel for an indigent. This case involves whether the court must notify the contemnor of the right to counsel and obtain a valid waiver of the right to counsel in a criminal contempt proceeding. Constitutional procedural due process requires that one charged with contempt of court have the right to be represented by counsel. Courtney v. Courtney (1984), 16 Ohio App.3d 329, 332, citing In re Oliver (1948), 333 U.S. 257, 275. R.C. 2705.03 also mandates that the contemnor has the right to counsel. Courtney, supra, City of Cleveland v. Geraci (Dec. 16, 1993), Cuyahoga App. No. 64075, unreported. In a criminal contempt proceeding, a contemnor must be informed of his right to counsel and must knowingly and voluntarily waive this right. State v. Eyrich (June 19, 1996), Monroe App. No. 745, unreported. Furthermore, Lassiter sets out certain standards for determining when due process requires a certain procedure, such as informing the contemnor of his right to counsel. This court must balance (1) the privacy interest that will be affected by the official action; (2) the risk that without the procedure, erroneous decisions will result; and (3) the burden on the state in carrying out the procedure. Lassiter, supra. -5- In a criminal contempt proceeding, appellant's interest is that he may be deprived of his physical liberty. There is a presumption that if the litigant will be deprived of his physical liberty, the litigant has the right to counsel. Lassiter, supra. In a criminal contempt proceeding, the contemnor has a greater liberty interest at stake than in a civil contempt proceeding. See Creager, supra at 273 (Wilson, J., dissenting). In a civil contempt proceeding, the contemnor has an opportunity to purge the contempt, while the contemnor in a criminal contempt proceeding does not. See Brown v. Executive 200, Inc. (1980), 64 Ohio St.2d 250. Requiring the court to inform the contemnor that he is entitled to have counsel present, and obtaining a valid waiver on the record does not place a great burden on the state, fiscal or otherwise. Failing to inform the contemnor of his right to counsel and obtaining a valid waiver may deprive a contemnor of legal representation and result in an erroneous ruling. See Schock, supra. Applying the three pronged test of Lassiter, we find that procedural due process requires that in a criminal contempt proceeding, the trial court inform the contemnor of his right to counsel and obtain a valid waiver of the right to counsel. We must next determine whether the court satisfied its duty to inform appellant of his right to counsel and obtain a valid waiver. The notation on the record that appellant waived his right to counsel at his original trial is not sufficient to constitute a waiver at the contempt hearing. There was no indication on the -6- record that appellant waived his right to counsel. A valid waiver of the right to counsel will not be presumed from a silent record. Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, Garfield Hts. v. Brewer (1984), 17 Ohio App.3d 216. Additionally, appellant never received notice that he was being charged with contempt. R.C. 2705.03 and procedural due process requires notice of the charge of contempt. Courtney, supra, Cleveland v. Geraci, supra, Cleveland v. Ramsey (1988), 56 Ohio App.3d 108. The trial court failed to comply with procedural due process requirements. The decision holding appellant in contempt must be reversed and remanded for a new hearing. Cleveland v. Geraci, supra, In re Davis (1991), 77 Ohio App.3d 257. Accordingly, this assignment of error is sustained. II. Appellant's second and third assignments of error state: THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR MITIGATION OF SENTENCE. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT-APPELLANT TO THIRTY (30) DAYS IN JAIL FOR CONTEMPT PROCEEDING. These assignments of error are moot, due to our disposition of appellant's first assignment of error. Accordingly, these assignments of error are overruled as moot. The decision of the trial court is reversed and this case is remanded for further proceedings consistent with this opinion. -7- It is therefore considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, PRESIDING JUDGE JOHN T. PATTON, JUDGE MICHAEL J. CORRIGAN, JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .