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Rule Changes

NOTICE

MONTGOMERY COUNTY COMMON PLEAS COURT, GENERAL DIVISION

AMENDMENTS TO LOCAL RULE 3.09, COURT APPOINTMENT OF COUNSEL

(EMERGENCY STATUS – EFFECTIVE SEPTEMBER 20, 2016)

 

The General Division of the Montgomery County Common Pleas Court adopted amendments to Local Rule 3.09 effective September 20, 2016.

Pursuant to Mont. Co. C.P.R. 1.03 of the Local Rules of Practice and Procedure for the Montgomery County Court of Common Pleas and Rule 5 of the Rules of Superintendence for the Courts of Ohio, the adopted amendments are being published for a sixty-day comment period beginning Tuesday, September 20, 2016, through Friday, November 18, 2016.

Comments regarding the adopted amendments to Local Rule 3.09 can be submitted via email to rulecom@montcourt.org or in writing to:

James E. Dare, Court Administrator

Montgomery County Common Pleas Court

41 N. Perry Street

P.O. Box 972

Dayton, OH  45422

Comments must be received by 4:30 p.m. on Friday, November 18, 2016.


Rule 3.09 – Court Appointment of Counsel

A.      APPOINTED COUNSEL LIST:

1.      The Judges of the Court shall specify the qualifications for participating in the appointed counsel program.  The Court shall create a master list of attorneys approved to participate in the appointed counsel program (“Appointed Counsel List”).

2.      Placement on the Appointed Counsel List is a privilege, not a right, and an attorney may be removed by the Court at any time, with or without cause pursuant to approval by the full bench.

3.      The Court may reserve the right to require an attorney to attend the Court Criminal Trial Seminar or any other training deemed necessary.

B.      ELIGIBILITY FOR APPOINTED COUNSEL LIST:

1.      Any attorney not included on the Appointed Counsel List may apply by submitting an application to the Court Services Division.

2.      The purpose of the application process is to allow the Court to determine whether counsel qualifies under this Rule and the Administrative Code and is in compliance with the Ohio Public Defender Standards and Guidelines for Reimbursement prior to the submission of a bill.

3.      An attorney on the Appointed Counsel List whose qualifications and training as set forth in Subsection (C) of this Rule have changed may request reclassification on the Appointed Counsel List by submitting a new application, with supporting documentation, to the Court Services Division.  The attorney’s request shall be reviewed by the Court’s Criminal Practice Committee and a recommendation will be submitted to the Judges of the Court for decision.

C.      QUALIFICATIONS AND TRAINING:

1.      In all felony cases, attorneys appointed to represent indigent clients must meet the following training requirements:

a.      Within two years prior to the appointment, completion of a minimum of twelve hours of continuing legal education, certified by the Ohio Supreme Court Commission on continuing legal education, in criminal practice and procedure.

b.      Prior to the appointment to a felony OVI case, completion of a minimum of six hours of continuing legal education, certified by the Ohio Supreme Court Commission on continuing legal education, focused on OVI practice and procedure.

2.      Where the defendant is charged with a felony of the fourth or fifth degree, counsel must have:  shall possess:

a.      At least one year of experience as an attorney practicing in the area of criminal law; and

b.      Prior experience as trial counsel or co-counsel in at least one criminal jury trial, felony or misdemeanor., and

c.       Prior completion of a training program on criminal practice and procedure which is certified for continuing legal education (“CLE”) credit by the Ohio Supreme Court Commission on CLE and approved by the Court for the purposes of this Rule.

d.      In evaluating compliance with this Rule and O.A.C. 120-1-10(B)(5)(b)-(c) pertaining to the qualifications of appointed counsel for indigent criminal defendants charged with a felony of the fourth or fifth degree, the Court may evaluate an attorney’s overall experience, knowledge, training, and other qualifications and determine that the attorney meets or exceeds the level of experience, knowledge, and training conveyed by the approved CLE, thereby fulfilling the objective of those requirements and meeting the specified criteria.

3.      Where the defendant is charged with a felony of the third degree, counsel must have: shall possess:

a.      At least one year of experience as an attorney practicing in the area of criminal law; and

b.      Within six years preceding the appointment, prior experience as lead trial counsel in at least one criminal jury trial, or as co-counsel in at least two jury trials. Prior experience as trial counsel in at least one fourth or fifth degree felony jury trial.

4.      Where the defendant is charged with a felony of the first or second degree, other than aggravated murder without death penalty specifications, murder, or rape under the age of 13, counsel must have: shall possess:

a.      At least three two years of experience as an attorney practicing in the area of criminal law; and

b.      Within ten years preceding the appointment, prior experience as lead trial counsel in two criminal jury trials, at least one of which involved felony charges, or as lead counsel in one felony jury trial and as co-counsel in two additional jury trials.Prior experience as trial counsel in two or more first, second, or third degree felony trials, at least one of which was a jury trial.

5.      Where the defendant is charged with any felony that carries a potential sentence of life imprisonment, whether eligible or ineligible for parole, counsel must have: aggravated murder without death penalty specifications, murder, or rape under the age of 13, counsel shall possess:

a.      At least five three years of experience as an attorney practicing in the area of criminal law; and within ten years preceding the appointment, prior jury trial experience as lead trial counsel in five two first degree felony or aggravated felony trials, or jury trials, at least three of which were felonies of the first or second degree; or lead counsel in three jury trials, at least one of which was a felony of the third degree, and

b.      Co-counsel in an additional five jury trials, at least three of which were felonies of the first or second degree.

c.       At least three years of experience as an attorney and prior experience as trial counsel in ten or more jury trials, at least one of which was for a felony of the first degree.

6.      Where the defendant is charged with aggravated murder with death penalty specifications, or has been convicted and sentenced to death, any attorney appointed for trial, appellate, post-conviction, or habeas corpus representation must meet the qualifications set forth in the Ohio Supreme Court Rules of Superintendence Sup. R. 20 and must appear on the list of attorneys qualified to accept appointments in capital cases promulgated by the Ohio Supreme Court Commission on Committee on the Appointment of Counsel for Indigent Defendants in Capital Cases, set forth in Sup. R. 20 (II)(c). or have a waiver of pre-qualification issued by the Commission.  Counsel must possess:

a.      Lead Trial Counsel must have at least five years of criminal litigation experience; and experience as lead counsel for the defense in the jury trial of at least one capital case, or experience as co-counsel for the defense in the jury trial of at least two capital cases; and within ten years preceding the appointment, experience as lead counsel in the jury trial of at least one murder or aggravated murder case; or within five years preceding the appointment, experience as lead counsel in three aggravated or first or second degree felony jury trials.

b.      Trial Co-Counsel must have at least three years of criminal litigation experience; and within ten years preceding the appointment, experience as co-counsel in one murder or aggravated murder jury trial; or within five years preceding the appointment, experience as lead counsel in one first or second degree felony jury trial; or within five years preceding the appointment, experience as lead or co-counsel in at least two felony jury or civil jury trials.

D.     ASSIGNMENT:

1.      When it appears to the Court that the defendant in a criminal case is indigent, and if the Public Defender’s Office is not representing the defendant pursuant to Mont. Co. C.P.R. 3.03(A)(2)(c), the Court shall utilize and appoint an attorney from the Appointed Counsel List.

2.      As far as is practical, a Assignment shall be independent from individual influence or choice by any member of the judiciary, prosecution, or other elected official and distributed as widely as possible among attorneys on the Appointed Counsel List on a rotating basis, designed to pair the defendant’s level of offense with an attorney who meets the training and qualifications of assignment set forth in Subsection (C) of this Rule.   On rare occasion it may be in the interest of justice for a court to select an individual attorney whose expertise or experience is particularly well suited to a given case or client.

E.      COMPLIANCE:

Attorneys on the Appointed Counsel List are required to comply with the Ohio Administrative Code 120-1, the Ohio Revised Code, the Ohio Rules of Superintendence, the Criminal Rules of Practice and Procedure, the State Public Defender’s Commission’s, “Attorney Qualifications to Represent an Indigent Client”, these Rules and any other applicable rules or laws.

F.       MENTOR LIST:

1.      Attorneys on the Appointed Counsel List whose experience exceeds the requirements in Subsection (C)(1)-(5) (6) of this Rule, as determined by the Court, may apply to be placed on the Court’s Mentor List (“Mentor List”).

2.      Assignment of Mentor

a.      When an attorney applies to be included on the Appointed Counsel List, the Court may require assignment of a mentor from the Mentor List.

b.      An attorney on the Appointed Counsel List may request that the Court assign a mentor from the Mentor List.

3.      Attorneys on the Mentor List will be volunteers and will meet with the mentee on an “as needed” basis, as determined by the mentor.

 
     
 
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