¶1 concurring separately.
¶2 While I concur with the result reached by the majority herein, I must respectfully do so for reasons other than those cited by the majority.
¶3*885 The decision of the majority expressed heretofore relies on a failure by the trial court to comply with Crim.R. 44(C). Neither the record nor the briefs make any suggestion that the appellant at any time waived counsel in any fashion. I think the error here is more fundamental than that.
¶4 Every criminal defendant is afforded the right to counsel. Sixth and Fourteenth Amendments to the United States Constitution; Section 10, Article I, Ohio Constitution. “It is the duty of the trial court in a criminal case to inquire fully into the circumstances impinging upon an accused’s claimed inability to obtain counsel and his consequent need for assistance in employing counsel, or for the assistance of court-appointed counsel.” State v. Tymcio (1975), 42 Ohio St.2d 39, 71 O.O.2d 22, 325 N.E.2d 556, paragraph three of the syllabus.
¶5 The record before this court demonstrates the following colloquy between appellant and the court on the morning of trial:
¶6 “THE COURT: You asked for appointed counsel in the case, and I referred you to the Public Defender’s office back on October 28th.
¶7 “MR. CAMPBELL: Yes, sir. The last time I was here and I talked to a gentleman when I left and then I called — I didn’t know that the paperwork I had was supposed to go to his office, and he called me at my house approximately ten days ago or so, and I put it in the mail. That’s the last time I heard it. I don’t have it.
¶8 “THE COURT: Well, it apparently never made it there and we’re ready to go. … Mr. Holtschulte filed a report with the Court November 20, and you never filed anything with their office, so he was unable to determine if you were eligible to appointment [sic] anybody and here we are. Can you think of any reason why we should delay it then?
¶9 “MR. CAMPBELL: Well, I’d like to have representation.
¶10 “THE COURT: What’s that?
¶11 “MR. CAMPBELL: I said I’d like to have a lawyer.
¶12 “THE COURT: Well, I know. I’d like to have a big car too, you know. I realize that I have to do something to make that happen.
¶13 “MR. CAMPBELL: I understand, sir. When he called me at my house, I had the paperwork right in front of me. He told me he needed it. I put it in an envelope and mailed it the very next day.
¶14 “THE COURT: Well, you shifted the responsibility to your letter carrier and they [sic] may have failed you. Whose fault is that?
¶15 “MR. CAMPBELL: It’s mine your honor.
¶16*886 “THE COURT: If you’re asking me to delay the case, I’m not going to do it. You had more than a month. This is — well, actually, this is longer than I’d ordinarily delay one of these cases. We’re going to take care of it today.”
¶17 Thereafter, a trial to the bench was conducted, and appellant was convicted of the charge without the assistance of counsel.
¶18 While the record suggests that at least the trial court had previously made some preliminary determination of indigency sufficient to refer appellant to the public defender’s office, the court may not abdicate its responsibility for a full inquiry by a simple referral. And furthermore, when a defendant appears at the next hearing without counsel, the court may not simply rely on its prior referral as a discharge of this duty to afford counsel. Many factors, other than, simple indigency, may impinge upon a defendant’s inability to obtain counsel, factors that may differ greatly from case to case.
¶19 Here, one can discern from the record that the trial court appeared upset by what might have been perceived to have been an attempt by appellant to frustrate a legitimate attempt to move this case to a trial level conclusion. However, the record does not demonstrate that there were any prior continuances granted or delaying tactics employed by the appellant, other than perhaps a failure to aggressively follow up on his referral to the public defender.
¶20 In any event, pursuant to Tymcio, supra, assistance of counsel must be provided to a defendant in a criminal trial. The trial court’s failure to ensure that appellant obtained legal representation, whether through his own resources or at public expense, violated this mandate and constituted an irregularity in the proceedings and an abuse of discretion by the trial court, because of which the defendant was prevented from having a fair trial.