State v. Weiner

Paul W. Brown, J.

Appellant alleges numerous substantive and procedural defects in the hearing afforded him pursuant to his citation for contempt. The Court of Appeals rejected all claims of alleged defect, and held that the findings of Judge Zimmers were supported by the evidence. Upon a review of the record, we affirm the judgment of the Court of Appeals.

Although there is some difference of opinion among the various jurisdictions as to the necessity of providing an evidentiary hearing for an attorney charged with being in contempt of court for his failure to present himself before the court when it was his obligation as an office» of the court to do so (see annotation, 97 A. L. R. 2d 431), where such a hearing did in fact take place the review of the resulting conviction must focus on the adequacy of that hearing and whether the essential conclusions of fact find support in the evidence.

We find appellant’s contention that it was improper for the judge who signed the affidavit charging contempt to preside at the hearing to be without merit. It is specifically provided in R. C. 2705.05 that it is for the court to decide the question of guilt or innocence. Although the appointment of another judge to hear the evidence is warranted where the alleged contempt takes the form of personal insult or vilification of the judge, so that there would exist the possibility of bias should the victim of such abuse pass judgment on the evidence (Mayberry v. Pennsylvania [1971], 400 U. S. 455), no such personal attack occurred in the instant case. Because it was proper for Judge Zimmers to conduct the hearing, appellant’s attempt to call him as a witness was properly rejected. Equally without merit is appellant’s contention that he was entitled to be tried before a jury; this contempt is a petty offense within constitutional contemplation (see Cheff v. Schnackenberg [1966], 384 U. S. 373; Bloom v. Illinois [1968], 391 U. S. 394; and R. C. 2705.05), and thus there need be no jury trial.

At the hearing, appellant was faced with the heavy burden of proving to the satisfaction of the court that sound *14reasons existed to excuse his failure to appear in court for Garrett’s trial. We find it manifest from the evidence produced at the hearing that appellant’s conduct was inexcusable. Questions of fact may exist as to whether a formal and mandatory procedure did exist for withdrawal of counsel from a case before the court, and whether appellant actually effected a withdrawal, but they must yield to the clear import of his failure to directly notify the court of his “withdrawal” until such time as its disruptive effect was unavoidable. A court and its officers bear reciprocal responsibilities to insure that the doing of justice will be neither delayed nor denied. Where an attorney has been retained as counsel and received payment from a defendant in a misdemeanor case, a jury trial has been scheduled pursuant to that attorney’s request, he has notice of the time of trial, and the jury is in fact impaneled and awaiting the start of the trial, his failure to directly notify the court of his intention to absent himself from the trial at so late a date as to leave the court no time to make alternate arrangements is clearly contumacious. See Windham Bank v. Tomaszczyk (1971), 27 Ohio St. 2d 55.

In the instant ease, appellant, as an officer of the court, eould hardly have been unaware of the obstructive effect of his conduct on the operation of the court, and there is more than ample evidence in the record to support the finding of contempt.

Judgment affirmed.

Herbert, Corrigan, Stern and W. Brown, JJ., concur. O’Neill, C. J., and Celebrezze, J., dissent.