[Cite as State v. Overton, 2013-Ohio-3590.]
COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : -vs- : : DANIEL W. OVERTON : Case No. 12CA0019 : : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Morrow County Court of Common Pleas, Case No. 2009-CR-0133
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: August 5, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TOM C. ELKIN WILLIAM T. CRAMER Morrow County Assistant Prosecutor 470 Olde Worthington Road 60 East High Street Suite 200 Mt. Gilead, OH 43338 Westerville, OH 43082 Morrow County, Case No. 12CA0019 2
Baldwin, J.
{¶1} Appellant Daniel W. Overton appeals a judgment of the Morrow County
Common Pleas Court revoking his community control and sentencing him to a
previously suspended sentence of three years incarceration. Appellee is the State of
Ohio.
STATEMENT OF FACTS AND CASE
{¶2} In 2009, appellant was convicted upon a plea of guilty of one count of
illegal use of a minor in nudity oriented material (R.C. 2907.323) and tampering with
evidence (R.C. 2921.12(A)(1)). He was sentenced to 11 months incarceration for use of
a minor in nudity oriented material and three years incarceration for tampering with
evidence. The sentences were to run concurrently, and were both suspended on the
condition that appellant successfully complete a five year community control sanction.
{¶3} A motion to revoke appellant’s community control was filed in April of
2012, alleging that appellant refused recommended treatment from Central Ohio Mental
Health. Counsel was appointed to represent appellant. Appellant requested a
competency evaluation in May of 2012. Following this evaluation, appellant was
conveyed to Twin Valley Behavioral Health Care (hereinafter “Twin Valley”) until he
could be restored to competency.
{¶4} On August 10, 2012, the State filed a supplemental motion to revoke
appellant’s community control sanction. The motion to revoke alleged that after being
ordered to surrender inappropriate DVD’s in his possession at Twin Valley, he punched,
kicked, bit and spit on Twin Valley staff. The motion further alleged that appellant’s Morrow County, Case No. 12CA0019 3
mother had called his probation officer to report that when cleaning out appellant’s
apartment, she found a large collection of pornographic magazines and DVD’s. The
court found appellant competent to proceed on August 13, 2012, after receiving a report
from Twin Valley staff which indicated that appellant did not need further hospitalization.
The court set a merit hearing for September 13, 2012.
{¶5} Although represented by counsel, appellant filed a plethora of pro se
motions between August, 2012, and the date of the merit hearing: motion to remove
Donald Wick as counsel, motion to remove Charles Howland as prosecutor, proof of
conflict of interest, motion for discovery, motion to change venue, motion for further
investigation, motion to suppress, motion to dismiss, motion to be released, and motion
to revoke power of attorney. At the start of the hearing, the court addressed appellant’s
motion to remove his counsel and allowed appellant to proceed pro se, with standby
counsel.
{¶6} The hearing was not completed on September 13, and continued on
November 1, 2012. Between these dates, appellant filed pro se motions for habeus
corpus, a motion to dismiss, and a motion for a conference with the prosecutor.
{¶7} At the end of the hearing, the court found that appellant had violated the
terms of his community control by refusing recommended treatment from Central Ohio
Mental Health, physically attacking staff at Twin Valley, and possessing pornographic
material. The court revoked appellant’s community control and imposed the previously
suspended sentence of three years incarceration. Appellant assigns a single error to
this court on appeal: Morrow County, Case No. 12CA0019 4
{¶8} “APPELLANT’S RIGHTS TO COUNSEL UNDER THE SIXTH
AMENDMENT TO THE U.S. CONSTITUTION AND THE OHIO CONSTITUTION,
ARTICLE I, SECTION 10, WERE VIOLATED WHEN THE TRIAL COURT PERMITTED
HIM TO PROCEED PRO SE WITHOUT ENSURING THAT HIS WAIVER OF
COUNSEL WAS KNOWING, INTELLIGENT, AND VOLUNTARY.”
{¶9} The Sixth Amendment to the United States Constitution and Section 10,
Article I of the Ohio Constitution provide that a criminal defendant has a right to counsel.
A criminal defendant may waive his right to counsel, but an effective waiver requires the
court to make a sufficient inquiry to determine whether the defendant fully understands
and intelligently relinquishes the right to counsel. State v. Gibson, 45 Ohio St.2d 366,
345 N.E.2d 399, paragraph two of the syllabus (1976). The defendant must make an
intelligent and voluntary waiver with the knowledge he will have to represent himself,
and that there are dangers inherent in self-representation. State v. Ebersole , 107 Ohio
App.3d 288, 293, 668 N.E.2d 934 (1995), citing Faretta v. California, 422 U.S. 806, 95
S.Ct. 2525, 45 L.Ed.2d 562 (1975).
{¶10} In Gibson, supra, the Ohio Supreme Court applied the test set forth in Von
Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), which established
the requirements for a sufficient pretrial inquiry by the trial court into a waiver of counsel:
{¶11} “To be valid such waiver must be made with an apprehension of the
nature of the charges, the statutory offenses included within them, the range of
allowable punishments thereunder, possible defenses to the charges and
circumstances in mitigation thereof, and all other facts essential to a broad
understanding of the whole matter. A judge can make certain that an accused's Morrow County, Case No. 12CA0019 5
professed waiver of counsel is understandingly and wisely made only from a penetrating
and comprehensive examination of all the circumstances under which such a plea is
tendered.” Id. at 724.
{¶12} Crim.R. 44 also addresses the appointment of counsel and waiver of
counsel. This rule provides, in pertinent part, “Where a defendant charged with a
serious offense is unable to obtain counsel, counsel shall be assigned to represent him
at every stage of the proceedings from his initial appearance before a court through
appeal as of right, unless the defendant, after being fully advised of his right to assigned
counsel, knowingly, intelligently, and voluntarily waives his right to counsel.”
{¶13} Prior to inquiring into appellant’s desire to represent himself, the trial court
did explain the charges against him. The trial court engaged appellant in the following
colloquy as to his decision to waive counsel:
{¶14} “Unless there is good cause, my usual ruling on that is you get one court-
appointed counsel and if you don’t want that attorney to represent you, then you can be
pro se. You can represent yourself. I usually have that attorney on the sidelines, if
necessary, for you to consult with on technical legal matters.
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[Cite as State v. Overton, 2013-Ohio-3590.]
COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. : -vs- : : DANIEL W. OVERTON : Case No. 12CA0019 : : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Morrow County Court of Common Pleas, Case No. 2009-CR-0133
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: August 5, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TOM C. ELKIN WILLIAM T. CRAMER Morrow County Assistant Prosecutor 470 Olde Worthington Road 60 East High Street Suite 200 Mt. Gilead, OH 43338 Westerville, OH 43082 Morrow County, Case No. 12CA0019 2
Baldwin, J.
{¶1} Appellant Daniel W. Overton appeals a judgment of the Morrow County
Common Pleas Court revoking his community control and sentencing him to a
previously suspended sentence of three years incarceration. Appellee is the State of
Ohio.
STATEMENT OF FACTS AND CASE
{¶2} In 2009, appellant was convicted upon a plea of guilty of one count of
illegal use of a minor in nudity oriented material (R.C. 2907.323) and tampering with
evidence (R.C. 2921.12(A)(1)). He was sentenced to 11 months incarceration for use of
a minor in nudity oriented material and three years incarceration for tampering with
evidence. The sentences were to run concurrently, and were both suspended on the
condition that appellant successfully complete a five year community control sanction.
{¶3} A motion to revoke appellant’s community control was filed in April of
2012, alleging that appellant refused recommended treatment from Central Ohio Mental
Health. Counsel was appointed to represent appellant. Appellant requested a
competency evaluation in May of 2012. Following this evaluation, appellant was
conveyed to Twin Valley Behavioral Health Care (hereinafter “Twin Valley”) until he
could be restored to competency.
{¶4} On August 10, 2012, the State filed a supplemental motion to revoke
appellant’s community control sanction. The motion to revoke alleged that after being
ordered to surrender inappropriate DVD’s in his possession at Twin Valley, he punched,
kicked, bit and spit on Twin Valley staff. The motion further alleged that appellant’s Morrow County, Case No. 12CA0019 3
mother had called his probation officer to report that when cleaning out appellant’s
apartment, she found a large collection of pornographic magazines and DVD’s. The
court found appellant competent to proceed on August 13, 2012, after receiving a report
from Twin Valley staff which indicated that appellant did not need further hospitalization.
The court set a merit hearing for September 13, 2012.
{¶5} Although represented by counsel, appellant filed a plethora of pro se
motions between August, 2012, and the date of the merit hearing: motion to remove
Donald Wick as counsel, motion to remove Charles Howland as prosecutor, proof of
conflict of interest, motion for discovery, motion to change venue, motion for further
investigation, motion to suppress, motion to dismiss, motion to be released, and motion
to revoke power of attorney. At the start of the hearing, the court addressed appellant’s
motion to remove his counsel and allowed appellant to proceed pro se, with standby
counsel.
{¶6} The hearing was not completed on September 13, and continued on
November 1, 2012. Between these dates, appellant filed pro se motions for habeus
corpus, a motion to dismiss, and a motion for a conference with the prosecutor.
{¶7} At the end of the hearing, the court found that appellant had violated the
terms of his community control by refusing recommended treatment from Central Ohio
Mental Health, physically attacking staff at Twin Valley, and possessing pornographic
material. The court revoked appellant’s community control and imposed the previously
suspended sentence of three years incarceration. Appellant assigns a single error to
this court on appeal: Morrow County, Case No. 12CA0019 4
{¶8} “APPELLANT’S RIGHTS TO COUNSEL UNDER THE SIXTH
AMENDMENT TO THE U.S. CONSTITUTION AND THE OHIO CONSTITUTION,
ARTICLE I, SECTION 10, WERE VIOLATED WHEN THE TRIAL COURT PERMITTED
HIM TO PROCEED PRO SE WITHOUT ENSURING THAT HIS WAIVER OF
COUNSEL WAS KNOWING, INTELLIGENT, AND VOLUNTARY.”
{¶9} The Sixth Amendment to the United States Constitution and Section 10,
Article I of the Ohio Constitution provide that a criminal defendant has a right to counsel.
A criminal defendant may waive his right to counsel, but an effective waiver requires the
court to make a sufficient inquiry to determine whether the defendant fully understands
and intelligently relinquishes the right to counsel. State v. Gibson, 45 Ohio St.2d 366,
345 N.E.2d 399, paragraph two of the syllabus (1976). The defendant must make an
intelligent and voluntary waiver with the knowledge he will have to represent himself,
and that there are dangers inherent in self-representation. State v. Ebersole , 107 Ohio
App.3d 288, 293, 668 N.E.2d 934 (1995), citing Faretta v. California, 422 U.S. 806, 95
S.Ct. 2525, 45 L.Ed.2d 562 (1975).
{¶10} In Gibson, supra, the Ohio Supreme Court applied the test set forth in Von
Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), which established
the requirements for a sufficient pretrial inquiry by the trial court into a waiver of counsel:
{¶11} “To be valid such waiver must be made with an apprehension of the
nature of the charges, the statutory offenses included within them, the range of
allowable punishments thereunder, possible defenses to the charges and
circumstances in mitigation thereof, and all other facts essential to a broad
understanding of the whole matter. A judge can make certain that an accused's Morrow County, Case No. 12CA0019 5
professed waiver of counsel is understandingly and wisely made only from a penetrating
and comprehensive examination of all the circumstances under which such a plea is
tendered.” Id. at 724.
{¶12} Crim.R. 44 also addresses the appointment of counsel and waiver of
counsel. This rule provides, in pertinent part, “Where a defendant charged with a
serious offense is unable to obtain counsel, counsel shall be assigned to represent him
at every stage of the proceedings from his initial appearance before a court through
appeal as of right, unless the defendant, after being fully advised of his right to assigned
counsel, knowingly, intelligently, and voluntarily waives his right to counsel.”
{¶13} Prior to inquiring into appellant’s desire to represent himself, the trial court
did explain the charges against him. The trial court engaged appellant in the following
colloquy as to his decision to waive counsel:
{¶14} “Unless there is good cause, my usual ruling on that is you get one court-
appointed counsel and if you don’t want that attorney to represent you, then you can be
pro se. You can represent yourself. I usually have that attorney on the sidelines, if
necessary, for you to consult with on technical legal matters. That’s pretty much the
way it is.
{¶15} “I guess it would make Mr. Wick’s life easier. He would be on the
sidelines just observing and giving you advice on legal issues if you want it. I don’t
know that I can deny you your right to be your own attorney. There is an old saying,
maybe I shouldn’t say this, but I’m going to, for attorneys at least, an attorney who
represents himself has a fool for a client. That may be something that you might want
to consider. Morrow County, Case No. 12CA0019 6
{¶16} “MR. OVERTON: I also would like to say there is another saying if you
want something done right, you have got to do it yourself.
{¶17} “THE COURT: Well, you know –
{¶18} “MR. OVERTON: Mr. Wick I do not believe has been forthcoming as to
making a valiant effort as to helping me because every time I have called him, his
secretary has said he is on his way to come speak to me and he has not done so. He
has missed several appointments to which his – he himself has said and his secretary
has said and he has dodged the majority of the calls.
{¶19} “THE COURT: Okay. Well, you – you are asking to be pro se, but you
are asking for somebody else to be appointed and its, if you want to be pro se, like I
said, I can’t deny you the right to be pro se.”
{¶20} Tr. 11-12.
{¶21} The trial court did not make sufficient inquiry into appellant’s decision to
waive counsel. The court did not inquire into whether appellant understood the dangers
of self-representation, and did not inquire as to whether appellant understood the
defenses available to him and whether appellant had a broad understanding of the
issues in the case.
{¶22} The circumstances surrounding appellant’s waiver are particularly
troublesome because the court had previously found appellant to be incompetent to
stand trial, and appellant had only recently been restored to competency. Shortly after
the hearing began, standby counsel stated to the court that he had known appellant for
a substantial period of time, and he did not believe appellant was in the proper state of
mind to adequately represent himself at that time. Tr. 22. Upon further questioning by Morrow County, Case No. 12CA0019 7
the court, counsel stated that based on his contacts with appellant in the past, appellant
did not appear as capable of representing himself as he had at other times. Tr. 23. The
trial court understood counsel’s concerns, but ruled that he could not deny appellant the
right to appear pro se and told counsel to assist appellant with questions of law if
appellant requested his assistance.
{¶23} The court did not make sufficient inquiry into appellant’s waiver of his right
to counsel to ensure that the waiver was knowing, intelligent, and voluntary, particularly
in light of the concerns expressed by counsel concerning appellant’s mental state and
his recent restoration to competency.
{¶24} The assignment of error is sustained. Morrow County, Case No. 12CA0019 8
{¶25} The judgment of the Morrow County Common Pleas Court is reversed,
and this case is remanded to that court for further proceedings. Costs assessed to
appellee.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.
HON. CRAIG R. BALDWIN
HON. WILLIAM B. HOFFMAN
HON. PATRICIA A. DELANEY
CRB/rad [Cite as State v. Overton, 2013-Ohio-3590.]
IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff - Appellee : : -vs- : JUDGMENT ENTRY : DANIEL W. OVERTON : : Defendant - Appellant : CASE NO. 12CA0019
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Morrow County, Ohio is reversed and
remanded. Costs assessed to appellee.