[Cite as State v. Mick, 2017-Ohio-8922.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                       Court of Appeals No. E-16-074

        Appellee                                    Trial Court No. 2014-CR-0196

v.

Richard C. Mick

        Defendant                                   DECISION AND JUDGMENT

[K. Ronald Bailey—Appellant]                        Decided: December 8, 2017

                                             *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Mark P. Smith, Assistant Prosecuting Attorney, for appellee.

        Kenneth R. Bailey and Dean C. Henry, for appellant.

                                             *****

        SINGER, J.

                                           Introduction

        {¶ 1} This appeal arises from the criminal trial of Richard C. Mick, after which

retained counsel, K. Ronald Bailey (“appellant”), was held in contempt of court, fined
$250 and court costs, and sentenced to a jail term of 30 days for failing to obey direct

orders of the trial court and obstructing the administration of justice. Finding no error,

we affirm.

                                  Assignments of Error

       {¶ 2} Appellant sets forth the following assignments of error:

              1. THE TRIAL COURT ERRED BY PLACING DEFENSE

       COUNSEL ON THE HORNS OF AN ETHICAL DILEMMA.

              2. THE TRIAL COURT ERRED BY CONFUSING THE

       PERMISSIVE WORD “MAY” WITH THE MANDATORY WORD

       “SHALL.”

              3. THE TRIAL COURT ERRED BY REFUSING TO

       SUBSTITUTE A LIVE APPOINTED EXPERT FOR A DEAD

       APPOINTED EXPERT.

              4. THE TRIAL COURT ERRED BY REFUSING TO CONTINUE

       THE TRIAL OR DECLARING A MISTRIAL.

              5. THE TRIAL COURT ERRED IN FINDING COUNSEL IN

       CONTEMPT FOR DOING EXACTLY WHAT THE COURT TOLD THE

       JURY COUNSEL HAD A RIGHT TO DO.

              6. THE TRIAL COURT ERRED IN FINDING A MOTION FOR

       RECONSIDERATION IS ALWAYS A NULLITY.




2.
                                       Background

       {¶ 3} Appellant’s client, Richard Mick, was charged with two counts of gross

sexual imposition against a minor under the age of 13, and rape against another minor

under the age of 13. The charges were brought under case No. 2014-CR-0196, and the

indictment was filed on May 14, 2014.

       {¶ 4} Mick filed a motion for substitution of counsel seeking appellant’s

representation on October 28, 2015, and the court granted it on November 5, 2015. The

court sua sponte continued the trial to January 19, 2016. At that point trial had been

continued six times from the original date set, November 18, 2014. Trial was continued

twice more, and eventually held on October 4, 2016. Since the January 2016 date had

been set, appellant moved the court for continuance eight times.

       {¶ 5} Appellant’s reasons for requesting a continuance varied, but the most

notable according to the court was because appellant claimed “Ohio Bike Week” would

cause there to be “absolutely no parking at or anywhere near the Courthouse[.]” Other

stated reasons were because he was going to be at his son’s Las Vegas wedding and

would have jet lag, because his client needed more time to develop a defense and secure

expert testimony, because the court allegedly did not send jury questionnaires timely, and

because his client was in the hospital with gout the day before trial and could not confer.

Notably, appellant was denied continuances on September 27 and October 3, 2016, both

within a week of trial.




3.
       {¶ 6} At trial appellant expressed his concern with proceeding and refused to

proceed stating he would be ineffective. The court continued the matter to allow for

briefing. The next day the court ordered appellant to proceed, he refused, and as a result

was found in contempt of court. The court stated it would proceed with sanctions upon

the completion of trial, however, subsequently continued the sanctions matter to

October 24, 2016, to allow appellant to secure counsel.

       {¶ 7} The sanctions hearing was held on November 9, 2016. At the hearing the

court reviewed the trial record and allowed appellant and his counsel to make statements

or allocution. The court played relevant portions of the audio recording of trial, which

extensively and thoroughly revealed its reasons for imposing sanctions. The

November 9, 2016 judgment entry summarized the reasons as such: “[Appellant]’s

conduct impeded, embarrassed and obstructed this Court in the performance of its

functions, to wit: the Orderly Administration of Justice.” The conduct highlighted was:

“(1) [Appellant] was Ordered three (3) times to step back from the bench after a Bench

Conference and he refused; [and,] (2) [Appellant] disobeyed Direct Orders to proceed to

represent the Defendant.”

       {¶ 8} The court sentenced appellant and the judgment was journalized

November 9, 2016. Appellant now appeals.

                                   Standard of Review

       {¶ 9} A determination of contempt by a trial court is reviewed for an abuse of

discretion. See Village of Ottawa Hills v. Afjeh, 6th Dist. Lucas No. L-10-1353,




4.
2012-Ohio-125, ¶ 28, citing State v. Kilbane, 61 Ohio St.2d 201, 400 N.E.2d 386 (1980),

paragraph one of the syllabus. An abuse of discretion requires a finding that the trial

court’s decision was unreasonable, arbitrary, or unconscionable. See Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

                                        Law and Analysis

          {¶ 10} Appellant argues the trial court erred in holding him in direct contempt. In

doing so, he contends he was in an ethical dilemma by being required to proceed to trial

ill prepared. Yet he also asserts it was strategy to refuse to proceed because the court said

it was his client’s right not to participate. Appellant further wages a war on the court’s

use of a permissive term when a mandatory order was intended. He argues several other

errors.

          {¶ 11} Appellee, the state of Ohio, contends appellant unjustifiably refused to

comply with direct orders of the court and was properly held in contempt for the resulting

obstruction of the administration of justice.

          {¶ 12} Did the court properly proceed under R.C. 2705.01, in finding appellant in

direct contempt and imposing sanctions?

          {¶ 13} It is initially noted some of appellant’s assigned errors are better suited to

be argued in his client Mick’s direct appeal. In particular, whether the matter should

have been continued, whether the court should have allowed additional time or funds for

a new expert, and whether a motion for reconsideration is a nullity are generally issues

for Mick to address as prejudicial to his position. We therefore find, even considering




5.
appellant’s arguments to the extent they fit, addressing the central issue of whether

appellant was justified in his actions is dispositive. See, e.g., State v. Jones, 11th Dist.

Portage No. 2008-P-0018, 2008-Ohio-6994, ¶ 24 (“Defense counsel should not be

required to violate his duty to his client as the price of avoiding punishment for

contempt.”).

       {¶ 14} “Direct contempt is defined by R.C. 2705.01, which states: ‘[a] court, or

judge at chambers, may summarily punish a person guilty of misbehavior in the presence

of or so near the court or judge as to obstruct the administration of justice.’” See

Ameritech Publ’g, Inc. v. Mayo Bail Bonds & Sur., Inc., 6th Dist. Erie No. E-12-012,

2013-Ohio-831, ¶ 18.

       {¶ 15} “Under R.C. 2705.01, due process does not require that the contemnor be

granted a hearing.” Newcomer v. Newcomer, 6th Dist. Lucas Nos. L-10-1299,

L-10-1357, 2011-Ohio-6500, ¶ 55. Here the court actually held a hearing, and we find it

properly proceeded in finding appellant in direct contempt for obstructing the

administration of justice.

       {¶ 16} Specifically, appellant repeatedly disobeyed direct orders from the trial

court. This court-disturbing misconduct occurred in the court’s immediate presence

because appellant refused to participate while at trial, in open court, and before both the

court and jury. Furthermore, the court had personal knowledge of appellant’s refusals

because the judge witnessed and addressed the conduct firsthand.




6.
          {¶ 17} “In order to be punished for criminal contempt, the contemnor must be

proven guilty beyond a reasonable doubt.” Brown v. Executive 200, Inc., 64 Ohio St.2d

250, 251, 416 N.E.2d 610 (1980); see also In re Sherlock, 37 Ohio App.3d 204, 206, 525

N.E.2d 512 (2d Dist.1987) (implying that refusing to participate in open court, if found

unjustified, is “certainly established beyond a reasonable doubt”).

          {¶ 18} Here, the imposed sanctions were 30 days in jail, a $250 fine, and court

costs. These sanctions are within the guidelines of R.C. 2705.05(A)(1), which allows:

“For a first offense, a fine of not more than two hundred fifty dollars, a definite term of

imprisonment of not more than thirty days in jail, or both[.]” Thus we find no basis to

conclude the trial court erred in imposing sanctions.

          {¶ 19} We next address whether appellant was justified in disobeying the court’s

orders.

          {¶ 20} “An officer of the court must always be held to disobey such instructions at

his peril, and must understand that his justification for doing so will be subjected to the

closest scrutiny and will be sustained only where it may be fairly concluded that no other

course was reasonably available[.]” State v. Gasen, 48 Ohio App.2d 191, 195, 356

N.E.2d 505 (1st Dist.1976), fn. “Where, for example, complete relief from unjustified,

unreasonable, or illegal orders may be accorded the aggrieved parties (whether counsel,

his clients, or both) upon direct appeal, we take it that the burden would be heavy indeed

to sustain a refusal to obey.” Id.




7.
       {¶ 21} In this case, we primarily note that despite the court’s entry and appellant’s

brief implying appellant’s failure to “step back” from the bench during sidebar was

considered contemptuous conduct, appellant was only warned, but not found in contempt

of court, until he failed to participate at trial as repeatedly ordered. As a result, we will

not address the argument that understanding the use of the word “may” as permissible

justified appellant’s refusal to retreat from sidebar.

       {¶ 22} We will nonetheless address appellant’s arguments that he was justified in

refusing to participate in trial, despite direct orders to do so, because:

              [T]he Trial Court 1) refused to substitute a live expert witness for a

       court appointed expert witness who had died, 2) refused to continue the

       Trial to obtain an investigator to investigate new allegations, 3) refused to

       grant a continuance due to Appellant’s client being hospitalized for days

       immediately preceding Trial, and 4) refused to continue the Trial for the

       wedding of counsel’s son in Las Vegas, Nevada three (3) days before the

       scheduled Trial.

       {¶ 23} Because of these, appellant claims he could not proceed with trial without

violating his ethical obligations to his client. In particular he argues he could neither

adequately represent his client, nor have rendered his client effective assistance.

       {¶ 24} However, appellant was responsible for his own failure to proceed to trial

and, even if the court should have continued the trial or declared a mistrial, appellant




8.
could have proceeded to trial, protected the record with objections, and challenged the

errors on direct appeal.

          {¶ 25} The trial court gave appellant adequate notice and opportunity to correct his

contemptuous conduct, and yet he refused. The portion of the audio recording of trial

from October 4, 2016, where the court ordered appellant to proceed and he refused, was

played at the November 9, 2016 sanctions hearing. After the playback ended, the court

stated:

                 COURT: Four times the Court indicated it was ordering him to

          proceed. It indicated to counsel that he was— it was indicating to counsel

          that his client’s rights were protected.

          {¶ 26} Moreover, the record reflects the trial court conferred with counsel on the

matter on both October 4 and 5, 2016, and allowed counsel a day continuance to research

the issue of whether to proceed or declare a mistrial.

          {¶ 27} At the November 9, 2016 sanctions hearing the court played the following

additional portion of the audio recording of trial where it initially discussed taking the

issue under advisement:

                 COURT: The Court had looked at cases yesterday at lunch that

          dealt with— where defense counsel has refused to proceed, and the Court

          ordered [them] to proceed or held in contempt, and they didn’t proceed.

          The Court held [them] in contempt. And there are a couple of cases where

          a defendant appeared in Court and a Public Defender walked in and the




9.
      Court appointed him, said you’re on the spot, proceed, and they refused and

      said it would be ineffective assistance of counsel. The Court held him in

      contempt and the— and the Court, higher Court said there’s no contempt.

      That person didn’t have— that attorney didn’t have time to prepare, so you

      can’t hold him in contempt. They have a right to counsel. Every case I

      read was basically the same.

             [THE STATE]: Uh huh.

             COURT: So it’s not a situation where we had counsel that’s been

      on the case for a year and the contempt issue. So with that being said,

      it’s— it’s slightly different. I did not read anything along these lines, so.

             [THE STATE]: If you’d like to take it under advisement—

             COURT: I do. I think what I want to do is I’m going to review this

      [until] tomorrow morning. I’ll have the jury come back at nine. I’d like the

      parties to submit any— any case law in support of their position.

             I have some real concerns about how to proceed, to be honest,

      because I don’t want to call Mr. Mick up here and ask him if this is— I

      don’t want to invade attorney-client privilege. I don’t want to assign

      different counsel because he’ll say I want [appellant], um, and he has his

      right to choice. I can’t do that. We could come back in here in a month

      and try this again or two months or three months and have the same thing

      happen again. I don’t know how to proceed, outside of I will be looking at




10.
       what the Court deems appropriate actions outside of this trial, outside of the

       facts of this trial.

               [THE STATE]: Your Honor, when do you want these provided to

       the Court?

               COURT: If you could have [them] filed by tomorrow morning and

       we’ll meet here about 8:15 and discuss it. I’ll make my ruling [on whether

       a mistrial is necessary]. I won’t have the jury come up until nine.

       {¶ 28} On October 6, 2016, the court entered its ruling finding it should proceed to

trial and note in the record any errors which were to be preserved for appeal.

       {¶ 29} The court noted appellant had practiced for 30 plus years and became

counsel of record almost 11 months before trial; appellant thus had sufficient time to

familiarize himself with the case. And, although the issue is better suited for Mick’s

appeal, the court said it denied additional expert fees for three reasons: Mick could

afford appellant as retained counsel; half of the original expert funds granted were still

available; and, the new expert had already formed an opinion that was consistent with the

old expert’s report. Also, appellant had requested to move the trial to an earlier date.

       {¶ 30} Regarding appellant’s argument that a continuance or mistrial was

appropriate because of the state’s introduction of new witnesses, the court noted that

appellant filed a motion in support of joining the same witnesses as additional victims in

the case, on September 19, 2015, four days after the state filed for joinder. The court said

it denied the joinder because it “was concerned that if it joined that case, the next thing




11.
that would be filed would be defense counsel filing a motion saying I don’t have time to

prepare for trial, for that witness in that trial, together with the trial that’s already set, so

grant a continuance[.]” Moreover the notices of intent to use the testimony were filed in

January and August 2016, which is nearly nine and three months prior to trial, and,

hence, the court found appellant failed to prepare for trial at his own peril.

       {¶ 31} The court further addressed appellant’s arguments that a continuance

should have been granted because Mick was in the hospital, the jury questionnaires were

untimely, and appellant’s second motion for reconsideration should have been ruled on

before trial. The court first stated how the court administrator had actually called the

Cleveland Clinic to confirm whether Mick was hospitalized, and that the clinic confirmed

Mick was discharged on October 3, 2016. The court explained Mick would not be

prejudiced by proceeding to trial on October 4, 2016. Then the court highlighted how

appellant never requested early jury questionnaires, and that the court sent them out on

the Thursday before trial, “just like they always have been[.]” Lastly the court invoked

the longstanding principle that “[a] motion for reconsideration of a trial court’s final

judgment is a nullity[,]” which addressed why judgment on appellant’s second motion for

reconsideration had not been rendered prior to trial. See Johnson v. Geico Homesite, Inc.,

6th Dist. Ottawa No. OT-17-003, 2017-Ohio-7273, ¶ 8.

       {¶ 32} The court eventually concluded as such:

               COURT: * * * This Court finds that a mistrial would be an extreme

       remedy, that’s what the case law says, and the Court does not find it’s




12.
       proper. This Court is going to proceed with the trial and there will be

       contempt proceedings after this trial is done because this Court had ordered

       defense to go forward [and appellant refused.]

       {¶ 33} Based on our review we cannot say the court abused its discretion in

finding appellant in direct contempt and imposing sanctions, as appellant indeed failed to

follow direct and lawful orders of the court without justification.

       {¶ 34} In final, we note that although appellant attempts to argue it was not his

intent to disobey court orders, because for instance the court stated he did not have to

participate (while it discussed the burden of proof), we clarify that we need not consider

appellant’s then state of mind. Purpose or intent is generally immaterial to the central

issue addressed herein. See Pugh v. Pugh, 15 Ohio St.3d 136, 472 N.E.2d 1085 (1984),

paragraph one of the syllabus (“Proof of purposeful, willing or intentional violation of a

court order is not a prerequisite to * * * contempt.”). Accordingly, appellant’s

assignments of error are found not well-taken.

                                        Conclusion

       {¶ 35} For the foregoing reasons the November 9, 2016 judgment of the Erie

County Court of Common Pleas is affirmed, and the stay issued on January 4, 2017 is

hereby withdrawn. Appellant is ordered to pay costs pursuant to App.R. 24.


                                                                        Judgment affirmed.




13.
                                                                      State v. Mick
                                                                      C.A. No. E-16-074




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




14.
