concurs in part and dissents in part.
The majority reads the phrase in Crim. R. 44 "unable to obtain counsel" to mean "does not have counsel" and thereby ignores its plain meaning. Had the rulemakers intended that a defendant must either have counsel or expressly waive counsel, they could have said so.
In the case sub judice, the defendant, no stranger to the criminal court system, affirmatively asserted that he was able to obtain counsel, yet refused or neglected to do so despite the court's repeated warnings as to the consequences. Similar facts were before the fifth district appeals court in State v. Robinson (Nov. 15, 1988), Knox App. No. 88-CA-14, unreported. That court properly held that the defendant was able to obtain counsel despite counsel's absence on the date of trial, and affirmed the trial court's imposition of a jail sentence I would reach the same result here. The holding of the majority in the case sub judice will provide defendants with a new method to manipulate the judgment process.
The majority's reliance on Argersinger v. Hamlin, supra and State v. Tymcio, supra, is misplaced, a these cases are distinguishable on their facts. Argersinger involved an indigent defendant who was denied assistance of counsel. Tymcio involved the denial of counsel to a defendant who represented to the court "that he has been unable while under bond to obtain adequate counsel with his available resources because of *341demands for substantial cash retainers." State v. Tymcio, supra at 44. Neither of those cases involved a situation, as here, where the defendant merely thumbed his nose at the court.
I would affirm both the judgment of conviction and the sentence imposed by the trial court.