Davis’ obstructing official business case, in Montgomery County District Court Area Two in Huber Heights, was not an isolated case.
Dewar’s office soon found several cases in which defendants facing possible jail time were being run through the system without attorneys.
The six cases are quite similar — all misdemeanors, all before Montgomery County District Court Judge James A. Hensley Jr.
And no attorneys were present for the defendants.
“This is part of our duty: to defend the Constitution,” said Dewar. “I consider myself the guarantor of the Sixth Amendment.”
The Ohio 2nd District Court of Appeals has reversed six of Hensley’s cases on the grounds that the defendants did not have attorneys and did not waive that right.
The defendants’ convictions include obstructing official business, theft, driving without a valid license, disorderly conduct and possession of drug paraphernalia. All are misdemeanors, with maximum sentences between 30 days and six months.
Two defendants received a mix of jail time and suspended jail days. One received only a jail sentence. The other three received suspended sentences, though two of them were revoked after probation violations.
In all six cases, the appeals court reversed the sentences, including the suspended jail time. In one case, the guilty plea was also vacated.
The first appeals case, that of Nicole Davis, was decided Sept. 11 in a decision written by appeals Judge Mike Fain, who noted that no person may be imprisoned for an offense, whether a felony or misdemeanor, unless that person is represented by counsel, or knowingly waives that right.
Four cases were decided in February, with nearly identical decisions written by Judge Jeffrey E. Froelich. The last opinion, written by Judge Mary E. Donovan, was issued Friday.
Froelich’s decisions note that “nothing in the record” suggests the defendants were represented by counsel, and there were no indications that a prosecutor was present at several of the hearings.
In two cases, the defendants watched a video of “pre-arraignment information,” which states the right to have an attorney. But in the other two, according to Froelich’s opinions, the record does not reflect whether the defendant was shown the video.
Waiving one’s right to counsel
A defendant can waive the right to counsel, but courts are to “indulge every reasonable presumption against” it, Froelich quoted a 1996 Ohio Supreme Court case, State v. Dyer.
The waiver must affirmatively appear in the record, and prosecutors bear the burden of overcoming presumptions against a valid waiver, Froelich wrote.
Writing about the case of Ashley Byrd, who pleaded guilty to theft, Froelich said that Hensley failed to ask Byrd if she wanted an attorney.
“The court could not infer from Byrd’s silence that she wished to waive her right to counsel,” Froelich wrote. “The procedures utilized in Byrd’s case are constitutionally and practically insupportable.”
Hensley was not available for comment, but Huber Heights city Prosecutor Bob Coughlin said Hensley is now having a dialogue with all defendants on the record.
“No one was ignoring the court of appeals,” Coughlin said.
He said all defendants are shown the video, but now they are signing forms when they waive their rights. He said he did not remember when the changes were made.
Dewar said last week that his office would continue to monitor that court to see if there are still problems.
Tom Hagel, a professor at the University of Dayton School of Law, said part of the problem might be the extra-heavy case loads seen in municipal courts.
“It is frankly a symptom of massive docket overload,” said Hagel, who has also worked as an acting judge in Dayton Municipal Court for two decades. “There is a temptation to cut corners. There’s a lot of incentive to move cases through the system.”
Byrd pleaded guilty at arraignment. Hagel said he will not accept a guilty plea at arraignment for a defendant without an attorney unless the charge is a minor misdemeanor — meaning one for which you cannot get a jail sentence.
Understanding a plea’s ramifications
Both Hagel and Dewar said a defendant might not understand the ramifications of pleading guilty without the help of an attorney. They might not realize they could face jail time, or they might not be aware of enhancements — some misdemeanor crimes become felonies on second offenses.
They also might not realize that, with public records available on the Internet, it’s much easier for a potential employer to learn about a criminal conviction.
Dewar also said that every study will show that defendants without lawyers get stiffer sentences.
“There’s no variation on that fact,” Dewar said. “The ones that plead without lawyers get the most time. You’ll get whacked.”
Dewar said his office will also be monitoring other misdemeanor-level courts to see if similar issues are happening. He said he worries that, in a time of budget worries, court officials could be trying to streamline defendants out of key rights.
The irony, he said, is that it’s more expensive to incarcerate low-level offenders, who overcrowd jails, and then are released to lost jobs, lost housing and other problems.
“The reality is, it’s actually much more expensive, systemwide,” Dewar said.
Contact this reporter at (937) 225-2057 or lgrieco@DaytonDailyNews.com.
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