The Ohio Supreme Court sent a Fremont man’s challenge to his conviction back to a lower court for further proceedings after accepting a trial transcript that was not previously part of the record.

In a 4-3 decision, the Supreme Court remanded Hayward Jones’ appeal to the Sixth District Court of Appeals, which assessed Jones’ case without the benefit of a trial transcript from an August 2016 hearing, where Jones allegedly waived his right to a lawyer and agreed to represent himself.

Lawyers representing Jones before the Supreme Court stated they were notified initially by the court reporter of the Sandusky County Common Pleas Court that a recording of the hearing was unavailable because of a ransomware attack on their system. But the court reporter, after doing much searching, was able to retrieve the recording in early February 2020, weeks before the Supreme Court heard oral argument in the case.

The Supreme Court’s majority decision indicated it could not resolve Jones’ appeal until it was clear that Jones “knowingly, intelligently, and voluntarily waived his right to counsel.”  It directed the Sixth District to review the transcript to answer the question before the Court would consider Jones’ claim that his constitutional rights were violated by the absence of standby counsel during voir dire.

Chief Justice Maureen O’Connor and Justices Judith L. French, Michael P. Donnelly, and Melody J. Stewart formed the majority. Justice Donnelly wrote a separate opinion to respond to the dissenting justices.

In a dissenting opinion, Justice Sharon L. Kennedy wrote that by ignoring its own procedural rules and the rules governing appellate courts, the Court had declared that it is not bound by the rule of law. She stated that the transcript revealed no new information that was relevant to the issue the Court accepted for review, which is called a proposition of law, and that the Court should not delay deciding that issue.

Justices Patrick F. Fischer and R. Patrick DeWine joined Justice Kennedy’s dissent.

In his concurring opinion, Justice Donnelly stated that without the lower court first verifying that Jones legally waived his right to an attorney, there is no reason for the Court to decide whether he had a right to “standby counsel” during jury selection.

Trial Procedure Contested
In 2015, Jones was indicted on multiple counts related to trafficking cocaine, conspiracy, and engaging in a pattern of corrupt activity. An attorney was appointed to represent Jones. After an August 2016 hearing, Jones signed a form saying he understood that he was waiving his right to an attorney. (See Does Lack of Standby Lawyer’s Presence at Jury Selection Lead to Mistrial?)

Transcript Produced from Recovered Recordings
About three weeks before the Ohio Supreme Court’s Feb. 26, 2020 oral argument on Jones’ appeal, the  common pleas  court reporter was able to retrieve the recording of the August 2016 hearing. A week before argument, Jones asked to supplement the record by providing the transcript.

The Ohio Attorney General’s Office, representing the state, objected to adding the transcript to the record, arguing that what happened at the hearing was not relevant to the issue the Court agreed to consider. On the day before oral argument, the Court denied the motion to supplement the record.

Court Changes Course
In today’s decision, the Court granted the motion to supplement the record with the transcript of the hearing and remanded the appeal.

“It is a given that the court of appeals was not privy to the complete record of the August 19, 2016 hearing. It is necessary, now that the transcript is part of the record, for the court of appeals to review that once-missing transcript and render an opinion on the issue whether Jones knowingly, intelligently, and voluntarily waived his right to counsel,” the decision stated.

The Court noted the determination of the validity of the waiver of the right to counsel must be answered before it considers the proposition of law the Court accepted.

Transcript Not Relevant to Any Issue before the Court, Dissent Explains
In her dissent, Justice Kennedy noted that Supreme Court Rule of Practice 15.08 has two prerequisites for supplementing the record: the supplement must be needed for the Court’s review, and the material must be related to issues actually before the Court. She wrote that the evidence in  the transcript is “not needed for us to decide the single issue on appeal, which is whether the trial court committed structural error in denying Jones access to standby counsel during jury selection.”

Justice Kennedy pointed out that Jones raised six propositions of law in his appeal of the Sixth District’s decision, but none of those challenged the validity of his right to waive counsel and “it had been the well-settled policy of this court to decline to address issues that were not presented in a proposition of law or accepted by this court for review.” 

The dissent also stated that Jones never requested a transcript of the August 2016 hearing when he appealed his conviction to the Sixth District. And if a transcript of the hearing was not available, appellate court rules allowed him to prepare a statement providing his recollections of the hearing. Because Jones never attempted to request a transcript or reconstruct his version of the hearing, he forfeited for appellate review any claimed error that depended on missing portions of the record, the dissent explained.

The dissent noted that rejecting the request to add the transcript would not leave Jones without a remedy. He would be able to ask the Sixth District to reopen his appeal by claiming his appellate counsel provided ineffective assistance by failing to reconstruct the record.
“But what he cannot do is introduce new issues in his appeal before this court by belatedly seeking to supplement the record,” the dissent concluded.

Concurrence Finds Review Necessary
In his concurring opinion, Justice Donnelly wrote that the dissent would decide whether the trial court committed structural error in denying Jones the assistance of standby counsel during jury selection. Yet, deciding this issue without first determining the issue of waiver of counsel would be deciding an issue of constitutional importance based on a potentially false premise.

Justice Donnelly maintained that given the fact that a transcript is now available, and that supplementation of the record is within the court’s discretion, the case should be decided on the merits.

 

“While the manner in which this case developed may not have been ideal, our decisions today merely make a complete record so that the important issues involved may be given full and fair consideration by the court of appeals,” he wrote.

2019-0395. State. v. Jones, Slip Opinion No. 2020-Ohio-4031.

View oral argument video of this case.

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