[Cite as State v. Dumas, 2011-Ohio-1003.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

VS. 

NATHANIEL DUMAS, 

 DEFENDANT-APPELLANT. 

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 CASE NO. 10-MA-50 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Youngstown 

Municipal Court of Mahoning County, 

Ohio 

Case No. 09CR2794 

JUDGMENT: Affirmed in part, 

Reversed and remanded in part 

APPEARANCES: 

For Plaintiff-Appellee Jay Macejko 

City Prosecutor 

Bassil Ally 

Assistant City Prosecutor 

City of Youngstown 

26 S. Phelps St. 

Youngstown, Ohio 44503 

For Defendant-Appellant Attorney Pete C. Klimis 

Attorney James E. Lanzo 

4126 Youngstown-Poland Road 

Youngstown, Ohio 44514 

JUDGES: 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

 

 

 Dated: February 28, 2011 
[Cite as State v. Dumas, 2011-Ohio-1003.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Nathaniel Dumas, appeals from a Youngstown 

Municipal Court judgment convicting him of misdemeanor assault following a bench 

trial and finding him in contempt for his behavior during trial. 

{¶2} On November 23, 2009, a complaint was filed against appellant 

charging him with assault, a first-degree misdemeanor in violation of R.C. 

2903.13(A). The charge stemmed from allegations by his ex-girlfriend that appellant 

showed up at her house, chased her, and repeatedly punched her. 

{¶3} Appellant appeared for two pre-trials without counsel. Each time the 

court continued the matter. The court subsequently appointed counsel for appellant. 

{¶4} The case was called for trial on February 17, 2009. At that time, 

appellant’s counsel asked the court for a continuance. He stated that appellant had 

just disclosed two witnesses to him. (Tr. 3). Appellant then stated that he wanted a 

jury trial. (Tr. 3). The court denied these requests because they were not made prior 

to the trial date. (Tr. 3). Appellant next stated, “I want a new attorney.” (Tr. 3). The 

following colloquy then took place: 

{¶5} “THE COURT: What you want is irrelevant to me. You don’t get to 

control things, Mr. Dumas. You have a lawyer. 

{¶6} “MR. DUMAS: You’re all going to do what you want to do anyway. 

{¶7} “THE COURT: Don’t interrupt me because I will find you in contempt. 

You are scheduled for trial today. You knew you were scheduled for trial today. We 

are having a trial today. You don’t get to come in here and interrupt me. 

{¶8} “MR. DUMAS: You’re not God. 

{¶9} “THE COURT: All right, Mr. Dumas, now you have 60 more days in jail 

for contempt. Have a seat at counsel table, sir. We are having a trial. Like I said, 

what you want and what you are going to get is two different things. If you interrupt 

me one more time and announce what you want one more time - - 

{¶10} “MR. DUMAS: You’re not God. 

{¶11} “THE COURT: Now you have six months in jail. 
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{¶12} “(Mr. Dumas is now talking at the same time as * * * [the court] and it is 

inaudible.) 

{¶13} “THE COURT: Now, you have six months in jail. You are either going 

to shut up and sit down or you are going to get a year in jail. The choice is totally 

yours, Mr. Dumas. You do not run me. 

{¶14} “MR. DUMAS: You are not God. 

{¶15} “THE COURT: Have a seat at counsel table, Mr. Dumas.” (Tr. 4-5). 

{¶16} The trial then began. Plaintiff-appellee, the State of Ohio, called the 

alleged victim as its first witness. She testified that appellant came to her house and 

assaulted her. (Tr. 7-8). At this point, appellant interrupted stating, “Why did you say 

that, you’re lying.” (Tr. 8). The court warned appellant that if he opened his mouth 

again, it would increase his jail time for contempt to one and a half years. (Tr. 8). 

{¶17} The witness continued her testimony. On cross examination, she 

disclosed that she had made an intimate videotape when she was dating appellant 

and that he had been using that as leverage against her to prevent her from 

testifying. (Tr. 15-16). She then concluded her testimony and the following occurred: 

{¶18} “MR. DUMAS: I have a few questions [of the witness]. 

{¶19} “THE COURT: Sir, if you want to keep on talking, I am going to remove 

you from this courtroom and the trial will proceed without you. 

{¶20} “MR. DUMAS: You’re not God, I don’t fear you. 

{¶21} “THE COURT: Take him out of the courtroom, please, take him out, 

take him out. 

{¶22} “MR. DUMAS: I have a right - - 

{¶23} “THE COURT: You have a year in jail for contempt and the trial will 

proceed without you. Do you want to go to jail for a year and a half? 

{¶24} “MR. DUMAS: Everybody will see that tape now. 

{¶25} “THE COURT: You have a year and a half in jail, Mr. Dumas. 

{¶26} “MR. DUMAS: So what.” (Tr. 16-17). 
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{¶27} The trial proceeded without appellant. The trial court found appellant 

guilty of assault and sentenced him to six months in jail and a $500 fine. This was in 

addition to the 18 months for contempt. 

{¶28} Appellant filed a timely notice of appeal on March 15, 2010. The trial 

court stayed appellant’s sentence pending this appeal. 

{¶29} Appellant now raises three assignments of error, the first of which 

states: 

{¶30} “THE TRIAL COURT’S DENIAL OF APPELLANT’S REQUEST FOR 

NEW COUNSEL VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO 

COUNSEL OF HIS CHOICE.” 

{¶31} Appellant argues that the court violated his constitutional right to 

counsel when it denied his request for new counsel. He contends that the court’s 

stated reason of the case being too old was not a valid one to deny him a brief 

continuance to secure counsel of his own choice. 

{¶32} A trial court’s decision to deny a substitution of counsel and require a 

trial to proceed with the assigned counsel is reviewed on appeal for abuse of 

discretion. State v. Cowans (1999), 87 Ohio St.3d 68, 73. Abuse of discretion 

connotes more than an error of law or judgment; it implies that the trial court’s attitude 

was unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio 

St.2d 151, 157. 

{¶33} The Sixth Amendment provides for a defendant to have the assistance 

of counsel for his or her defense. However, there is no right to counsel of the 

defendant’s choice. An indigent defendant does not have the right to have a 

particular attorney represent him; therefore, the defendant must demonstrate good 

cause to warrant substitution of counsel. Cowans, 87 Ohio St.3d at 72, quoting 

United States v. Iles (C.A.6, 1990), 906 F.2d 1122, 1130. “Good cause” includes 

such things “‘as a conflict of interest, a complete breakdown in communication or an 

irreconcilable conflict which leads to an apparently unjust verdict.’” State v. Pruitt
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(1984), 18 Ohio App.3d 50, 57, quoting United States v. Calabro (C.A.2, 1972), 467 

F.2d 973, 986. 

{¶34} “In evaluating a request for substitute counsel, the court must balance, 

‘the accused's right to counsel of his choice [against] the public's interest in the 

prompt and efficient administration of justice.’ United States v. Jennings (C.A.6, 

1996), 83 F.3d 145, 148. The court may deny the motion if it finds the motion was 

made simply to delay the trial, or was not made in good faith.” State v. Davis, 7th 

Dist. No. 05-MA-235, 2007-Ohio-7216, at ¶37. 

{¶35} In this case, appellant gave no reason for his request for new counsel. 

In fact, appellant must have been satisfied with his counsel when the proceedings 

began because he did not initially ask the court for new counsel. It was not until after 

the trial court denied counsel’s request for a continuance due to appellant’s recent 

disclosure of potential witnesses and after the trial court denied appellant’s request 

for a jury trial with witnesses that appellant stated that he wanted a new attorney. 

(Tr. 3). Under these circumstances, it seems clear that appellant’s request for new 

counsel was a delay tactic which he employed only after his other attempts to 

continue the trial were rejected. Had appellant been faced with a conflict of interest, a 

complete breakdown in communication, or an irreconcilable conflict with his counsel, 

presumably he would have filed a motion for new counsel prior to the day of trial or, 

at the very least, at the very beginning of the proceedings. Thus, the trial court did 

not abuse its discretion in denying appellant’s request for new counsel on the day of 

trial. 

{¶36} Accordingly, appellant’s first assignment of error is without merit. 

{¶37} Appellant’s second assignment of error states: 

{¶38} “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED 

APPELLANT’S RIGHT TO DUE PROCESS OF LAW UNDER THE FOURTEENTH 

AMENDMENT OF THE U.S. CONSTITUTION AND SECTIONS 10 AND 16, 

ARTICLE I OF THE OHIO CONSTITUTION AFTER IT FOUND APPELLANT 

GUILTY OF CONTEMPT WITHOUT ALLOWING HIM TO PRESENT A DEFENSE.” 
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{¶39} Here appellant argues that the trial court failed to provide him with an 

opportunity to be heard or present evidence in defense of the contempt charges. He 

claims this was in violation of his due process rights, R.C. 2705.05, and R.C. 

2705.03. 

{¶40} Contempt can be criminal or civil, direct or indirect. In this case, the 

trial court found appellant guilty of direct, criminal contempt. 

{¶41} Criminal contempt is generally characterized by an unconditional prison 

sentence that operates not as a coercive remedy but as punishment for the 

completed act of disobedience and to vindicate the court's authority. Brown v. 

Executive 200, Inc. (1980), 64 Ohio St.2d 250, 253-54. 

{¶42} Direct contempt has been defined to include “conduct which brings the 

administration of justice into disrespect, or which tends to embarrass, impede or 

obstruct a court in the performance of its functions.” Denovchek v. Trumbull Cty. Bd. 

of Commrs. (1988), 36 Ohio St.3d 14, 16, quoting Windham Bank v. Tomaszczyk

(1971), 27 Ohio St.2d 55, 56. “Courts, in their sound discretion, have the power to 

determine the kind and character of conduct which constitutes direct contempt of 

court.” State v. Kilbane (1980), 61 Ohio St.2d 201, paragraph one of the syllabus. 

{¶43} Direct contempt usually results from conduct that occurs in the court’s 

presence. Direct contempt may be summarily punished because the facts are 

directly known by the court. Id. at 204; State v. Belcastro (2000), 139 Ohio App.3d 

498, 501; R.C. 2705.01. Indirect contempt, on the other hand, occurs outside the 

court’s presence. Since the court does not have personal knowledge of the facts 

surrounding indirect contempt, it must afford the alleged contemnor with procedural 

safeguards such as a written charge, an adversary hearing, and the opportunity for 

legal representation. Id. 

{¶44} In support of his position, appellant cites to State v. Riester, 11th Dist. 

No. 3771, 2006-Ohio-3771, where the appellate court found that the appellant’s due 

process rights were violated when the trial court failed to afford the appellant the 
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opportunity to defend against the contempt charges. But that case is inapplicable 

here because it dealt with indirect contempt. Id. at ¶13. 

{¶45} A court may summarily punish a person for direct contempt as long as 

two conditions are met: (1) the contumacious act must be known personally to the 

court; and (2) the nature of the contempt must establish an imminent threat to the 

administration of justice so that immediate punishment is required to prevent 

demoralization of the court’s authority before the public. In re Wingrove, 4th Dist. No. 

02CA4, 2003-Ohio-549, at ¶30. 

{¶46} These conditions are satisfied here. The contumacious conduct clearly 

occurred before the court. In fact, most of appellant’s contemptuous comments were 

aimed directly at the court. Furthermore, the contempt established an imminent 

threat to the administration of justice so that immediate punishment was required to 

prevent demoralization of the court’s authority. Appellant basically told the court that 

what it said did not matter. This completely undermined the court’s authority 

necessitating immediate punishment. 

{¶47} Accordingly, appellant’s second assignment of error is without merit. 

{¶48} Appellant’s third assignment of error states: 

{¶49} “THE TRIAL COURT’S SENTENCE OF 18 MONTHS 

INCARCERATION FOR CONTEMPT WAS ARBITRARY, UNREASONABLE, AND 

DISPROPORTIONATE TO THE CONTEMPTUOUS CONDUCT, THEREFORE AN 

ABUSE OF DISCRETION.” 

{¶50} Appellant contends here that the trial court abused its discretion in 

sentencing him to 18 months in jail for contempt. He points out that his sentence for 

contempt is three times greater than his sentence on the underlying assault 

conviction. Appellant asserts that his sentence is not proportionate to his conduct. 

He points out that R.C. 2705.05(A)(3), which he admits the trial court was not bound 

by, authorizes a jail term of only 90 days for a third-time contempt. 

{¶51} A reviewing court will not reverse a trial court’s sentence for direct 

contempt unless it finds that the trial court abused its discretion. In re Olivito, 7th 
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Dist. No. 04-MA-42, 2005-Ohio-2701, at ¶53. The court’s sentence must be in 

proportion to the contemptuous conduct. State v. King, 8th Dist. No. 80958, 2002-

Ohio-7228, at ¶10. 

{¶52} When a case involves direct contempt, the limits placed on contempt 

sanctions by R.C. Chapter 2705 do not apply. Kilbane, 61 Ohio St.2d at 204. But 

they can be used as a guide as to reasonable sentences. King, 8th Dist. No. 80958, 

at ¶12. R.C. 2705.05 provides the following penalties: 

{¶53} “(1) 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; 

{¶54} “(2) For a second offense, a fine of not more than five hundred dollars, 

a definite term of imprisonment of not more than sixty days in jail, or both; 

{¶55} “(3) For a third or subsequent offense, a fine of not more than one 

thousand dollars, a definite term of imprisonment of not more than ninety days in jail, 

or both.” 

{¶56} In this case, for his first contempt, the trial court sentenced appellant to 

60 days in jail. For his second contempt, the court increased appellant’s sentence to 

six months in jail (in effect, an additional 120-day sentence). For his third contempt, 

the court increased appellant’s sentence to one year (in effect, an additional 180-day 

sentence). And for his fourth contempt, the court increased appellant’s sentence to a 

year and a half (in effect, an additional 180-day sentence). 

{¶57} Courts have found contempt sentences in somewhat similar cases to 

be excessive. For instance in In the Matter of Kemper (Jan. 31, 1994), 4th Dist. No. 

93CA15, the Fourth District found a 30-day contempt sentence was not 

commensurate with the gravity of the offense where the contemnor yelled, “what the 

hell do you know” while a vehicular homicide victim's husband was testifying at the 

sentencing hearing for the contemnor's brother-in-law. 

{¶58} And in King, 8th Dist. No. 80958, King was on trial for felonious assault. 

The trial court held him in contempt five different times during the trial for making 

frequent and repeated outbursts that interrupted the testimony of witnesses and the 
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prosecuting attorney's closing argument. The court sentenced King to 60 days for the 

first contempt, 30 days for the second contempt, 60 days for the third contempt, six 

months for the fourth contempt, and 60 days for the fifth contempt, after which the 

court removed him from the courtroom. The court imposed a total jail time for 

contempt of one year and 120 days. On appeal, the Eighth District, finding that the 

trial court abused its discretion in meting out its sentence, stated: 

{¶59} “While we agree that King showed contempt for the court (a fact that 

even he does not contest on appeal), we find the punishment meted out to King was 

an abuse of discretion because the court's cumulative sentence of sixteen months 

went well beyond what was reasonable for the circumstances. For example, the court 

sentenced King to sixty days in jail for the first act of contempt. Sixty days in jail is not 

trivial. It is the sentence given as punishment for the commission of third degree 

misdemeanors. This much time is significantly more than an offender would receive 

for disorderly conduct (a minor misdemeanor) and unwarranted since King did 

nothing more than ask if he could speak while the court tried to admonish him not to 

blurt out comments in front of the jury. Likewise, the punishment for the fifth contempt 

citation, six months in jail, was far too severe. A six-month sentence is equivalent to 

that given for first degree misdemeanors.” Id. at ¶11. 

{¶60} In this case, appellant’s comments to the court were clearly 

disrespectful and contemptuous. And they merited a jail sentence. But they did not 

warrant a year and a half in jail. Appellant was on trial for misdemeanor assault. The 

maximum jail sentence he faced was six months. The contempt sentence of one and 

half years was unreasonable in light of the circumstances surrounding the 

contemptuous behavior. Thus, the trial court abused its discretion in sentencing 

appellant for contempt. 

{¶61} Accordingly, appellant’s third assignment of error has merit. 

{¶62} For the reasons stated above, the trial court’s judgment as to 

appellant’s assault conviction is hereby affirmed. Likewise, the trial court’s finding of 
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contempt is affirmed. The sentence for contempt, however, is reversed and the 

matter is remanded to the trial court for resentencing of appellant. 

Vukovich, .J., concurs. 

Waite, P.J., concurs.