In Re Miami County Grand Jury Directive to Creager

Fain, Presiding Judge. Appellant Robert L. Creager has appealed from an order of the Miami County Common Pleas Court holding him in direct contempt for failure to comply with a directive of the Miami County Grand Jury requesting a handwriting exemplar, and ordering him incarcerated until such time as he shall provide a handwriting exemplar. Creager has averred indigency and has moved for the appointment of counsel to represent him in connection with his appeal. This court appointed counsel to represent Creager for the limited purpose of briefing the issue of whether Creager was entitled to appointed counsel to represent him in connection with his appeal from his contempt citation. That briefing is now complete, and the motion to appoint counsel to represent Creager in connection with his appeal is now before us for decision. For the reasons that follow, we conclude that Creager’s motion is well taken, and we will appoint counsel to represent Creager in connection with his appeal. I The judgment entry from which this appeal is taken is as follows: “This matter came on to be heard August 19, 1991 upon the State’s motion to show cause as to why the Defendant, Robert L. Creager, should not be held in contempt of Court for failure to comply with a directive of the Miami County Grand Jury requesting a handwriting exemplar and the Defendant, in Court, being addressed directly, and being ordered by the Court to provide a handwriting sample, did refuse to comply with the Court’s order. “Therefore, it is ORDERED, ADJUDGED AND DECREED that the Defendant, Robert L. Creager, be found in direct contempt of Court for failure to comply with a directive of the Miami County Grand Jury and an order of this court. *271 “It is further determined the remedy in this case shall be remedial and not punitive, since the Defendant holds the key to his release; ie: providing a handwriting sample. “The Defendant, Robert L. Creager, shall be reconveyed to the Southern Ohio Correctional Facility, Lucasville, Ohio, Inmate No. 209007 and a holder shall be placed upon the Defendant to notify the Miami County Prosecutor’s Office, Troy, Ohio one week in advance of his release for reconveyance to the Miami County Jail; by the Miami Sheriff’s Department where he shall remain pursuant to O.R.C. 2705.06, until further order of the Court or until such time as he provides a handwriting exemplar.” Creager has filed a pro se brief that includes three assignments of error, all of which are based upon Creager’s asserted Fifth Amendment right not to “be compelled in any criminal case to be a witness against himself.” Creager also moved for the appointment of counsel at public expense to represent him in connection with this appeal. In response to Creager’s motion, we appointed counsel to represent Creager for the limited purpose of briefing the issue of whether a person found in civil contempt of a grand jury for failure to comply with a directive to produce potentially incriminating evidence is entitled to appointment of counsel in appealing that civil contempt finding. That issue has been briefed and is now before us. II As a threshold matter, the state argues that Creager’s appeal is now moot because the order appealed from has expired in view of the fact that the term of the grand jury with respect to which the order was issued is now over. See State v. Granchay (1964), 1 Ohio App.2d 307, 30 O.O.2d 310, 204 N.E.2d 562. We agree with Creager that the issue before us is capable of repetition, yet evading review, a recognized exception to mootness. Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147. III Creager concedes that the proceeding from which his appeal is taken is civil, rather than criminal, but contends that he is entitled to the appointment of counsel at public expense by virtue of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution of the United States. *272 It is tempting to focus upon the unlikelihood that Creager will prevail in his appeal, it being settled that his asserted Fifth Amendment privilege does not apply to a nontestimonial act, such as a handwriting exemplar. United States v. Wade (1967), 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California (1967), 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; California v. Byers (1971), 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9. However, where an appellant has the right to appointed counsel, the failure to appoint counsel for him may never be deemed harmless by virtue of the futility of the appeal, but must be deemed to be prejudicial per se. Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300. Thus, if Creager is entitled to the appointment of counsel to represent him in connection with this appeal, we may not deny him that right based on the presumption that his appeal is doomed to fail. A right to the appointment of counsel to represent an indigent in a civil contempt proceeding was found in Schock v. Sheppard (1982), 7 Ohio App.3d 45, 7 OBR 48, 453 N.E.2d 1292. In that case, the Sixth District Court of Appeals applied a three-factor balancing test articulated in Lassiter v. Dept. of Social Serv. of Durham Cty. (1981), 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640. These three factors are (1) the private interest that will be affected by the official action (appellant’s liberty interests); (2) the risk that the procedures used will lead to erroneous decisions; and (3) the government’s interest, including the fiscal and administrative burdens that appointment of counsel in such cases would entail. Schock v. Sheppard, supra, 7 Ohio App.3d at 46, 7 OBR at 49, 453 N.E.2d at 1294. The court found the first two factors to weigh heavily in favor of the contemnor, and further found that they outweighed the government’s interest in avoiding the expense of paying for the services of appointed counsel. The court reasoned as follows: “Balancing the three factors discussed above, and setting their net weight in the scales against the presumption that counsel should be appointed in cases where the defendant may lose his personal freedom, we conclude that the balance weighs overwhelmingly in favor of the indigent defendant’s right to court-appointed counsel. We are cognizant of the fiscal burdens this will place on the government, but constitutional rights cannot be nullified simply because of the expense involved in ensuring that such rights are protected.” Schock, 7 Ohio App.3d at 47, 7 OBR at 51, 453 N.E.2d at 1295. The same three factors employed by the Sixth District Court of Appeals in Schock v. Sheppard, supra, were employed by the Ohio Supreme Court in State ex rel. Cody v. Toner (1983), 8 Ohio St.3d 22, 8 OBR 255, 456 N.E.2d 813, in which the court held that an indigent defendant in a paternity case is entitled to court-appointed counsel. *273 In the case before us, Creager is subject to incarceration for as long as he continues to assert his alleged right not to produce a handwriting exemplar. He has presumably determined that his assertion of this alleged right is more important than his right not to be incarcerated. Pursuant to Penson v. Ohio, supra, we may not disparage Creager’s asserted right not to produce a handwriting exemplar simply because we presume that his appeal on that issue is doomed to failure. Finally, it cannot be said that Creager may produce the handwriting exemplar, thereby purging himself of contempt, and yet preserve his asserted Fifth Amendment privilege. The case before us is between Creager and the state of Ohio. Therefore, if it is determined in the case before us that Creager has no Fifth Amendment privilege with respect to his handwriting exemplar, that issue will be conclusively determined in any subsequent criminal proceeding between Creager and the state, under the doctrine of collateral estoppel. We conclude that Creager’s motion for the appointment of counsel to present him in connection with his appeal in view of his indigency is well taken. IV Creager’s motion for the appointment of counsel to represent him in connection with this appeal is sustained. This court will appoint counsel to represent Creager in connection with this appeal. Judgment accordingly. Grady, J., concurs. Wilson, J., dissents.