State v. Overton

2021 Ohio 3193

• Court: Ohio Court of Appeals
• Decided: September 13, 2021
• Docket: 2020CA0010
• Status: Published

Opinion

[Cite as State v. Overton, 2021-Ohio-3193.]

COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 2020CA0010 DANIEL OVERTON : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Morrow County Court of Common Pleas, Case No. 2019CR0137

JUDGMENT: September 13, 2021

DATE OF JUDGMENT ENTRY: Affirmed

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DAVID HOMER WILLIAM T CRAMER Assistant Prosecutor 470 Olde Worthigton Road Morrow County Suite 200 60 East High Street Westerville OH 43082 Mt. Gilead, OH 43338 [Cite as State v. Overton, 2021-Ohio-3193.]

Gwin, P.J.

{¶1} Appellant Daniel Overton appeals the October 27, 2020 judgment entry of

the Morrow County Court of Common Pleas. Appellee is the State of Ohio.

Facts & Procedural History

{¶2} On July 8, 2019, the Morrow County Sheriff’s Office received a call about

an unregistered sex offender living in Morrow County. An officer found this individual,

appellant, at the Mount Gilead Library in close proximity to young children. Appellant had

been living out of a van in Morrow County since March 2, 2019; however, he failed to

register his address until June 17, 2019. Appellant’s status as a Tier I sex offender was

established by a previous conviction of illegal use of a minor in nudity-oriented material.

His status mandated that he register a new address within three days of moving to a new

location.

{¶3} Appellant was indicted on August 9, 2019, for failing to personally register

with the Morrow County Sheriff’s Office within three days, in violation of Ohio Revised

Code 2950.04(A)(2)(a) and R.C. 2950.99(A)(1)(iii), a felony of the fourth degree. The

indictment alleged that appellant previously pled guilty to illegal use of a minor in nudity-

oriented material in violation of R.C. 2907.323(A)(3), a felony of the fifth degree.

{¶4} Prior to an arraignment being held, appellant was transported to Twin Valley

Behavioral Hospital. After his return to the Morrow County Jail, he was arraigned.

Appointed counsel for appellant (Attorney Johnson) filed a motion for competency hearing

on October 3, 2019. The trial court granted the motion, and referred appellant to the

Forensic Diagnostic Center for an evaluation of competency to stand trial. Morrow County, Case No. 2020CA0010 3

{¶5} Dr. O’Reilly provided the trial court with his competency report on December

4, 2019. The doctor found that appellant was not competent to stand trial. It was also his

professional opinion that there was a substantial probability appellant would become

capable of understanding the nature and objective of the proceedings against him and of

assisting his attorney in his defense within one year, if provided with a course of treatment.

Dr. O’Reilly found appellant previously responded to treatment with significant

improvement.

{¶6} After the trial court received the report from Dr. O’Reilly, the trial court set

the matter for hearing on December 19, 2019. Appellant declined to stipulate to the

report, so the hearing was continued to January 15, 2020. At the hearing, counsel for

appellant stated appellant wanted to fire him as his attorney. The trial court denied

appellant’s request and ordered the hearing to go forward with counsel representing

appellant. The trial court found appellant incompetent to stand trial and ordered appellant

to Twin Valley Behavioral Healthcare. As appellant left the hearing, he threated to harm

hospital staff and stated he would refuse medication.

{¶7} On April 28, 2020, the trial court received a report from Twin Valley stating

appellant was competent to stand trial. The parties stipulated to the admission of the

report, and found appellant competent to stand trial.

{¶8} The trial court held a pre-trial on June 5, 2020. The judgment entry on June

8, 2020 provides that Attorney Johnson indicated appellant wanted to plead guilty. The

trial court continued the hearing to June 19, 2020, so that the plea could be on the record.

{¶9} The trial court held the hearing on June 19, 2020. The judgment entry dated

June 26, 2020 states that the parties were informed the trial would have to be continued Morrow County, Case No. 2020CA0010 4

because of inadequate facilities being available during the pandemic. Further, Attorney

Johnson informed the court that appellant no longer wanted to plead guilty. Appellee

indicated on the record that, should appellant plead guilty, appellee would recommend

community control and would not oppose the court sentencing appellant to time served.

Appellant “believed his attorney was untruthful with him and * * * he wished to fire his

attorney (for the fourth time).” After the trial court declined to appoint other counsel,

appellant “indicated he wished to be his own attorney. The Court advised the Defendant

that he would be at a great disadvantage in representing himself, but that he has the right

to do so. The Court indicated to the Defendant that he is facing 18 months in the state

penitentiary and he will not be treated differently when it comes to the rules of evidence,

etc.”

{¶10} The trial court set a hearing on July 15, 2020 for a “further explanation of

the Defendant’s rights and responsibilities acting pro se.” The trial court stated this was

a follow-up to the June hearing, at which appellant stated he wanted to represent himself

at trial. At the July 15th hearing, the trial court discussed appellant’s competency situation

with him, noting that appellant was reasonably well-educated, having good language

skills. Appellant stated he felt comfortable with the proceedings and knew what was going

on. The trial court told appellant it was his right to represent himself, but also “wanted to

make sure that you understand if you choose to represent yourself that you will be held

to the same rules of evidence that a lawyer must follow” and that his lack of knowledge

of any of the rules will not prevent the court from enforcing those rules. The court

cautioned appellant that because of his lack of experience and lack of knowledge of the Morrow County, Case No. 2020CA0010 5

rules of evidence, he may have difficulty asking questions of the witnesses if he

represents himself.

{¶11} The trial judge informed appellant the court could not give him assistance,

but that standby counsel appointed by the court was ready, willing, and able to defend

appellant, and would either be in the courtroom or at the table with appellant, whatever

appellant chose.

{¶12} The trial court informed appellant of the charge against him, and specifically

told him of the range of possible penalties he would face if convicted. The trial court also

told appellant if he was sentenced to prison, he would be subject to post-release control,

and, if he violated post-release control or committed a new felony offense, he could be

sent back to prison. The trial court specifically notified appellant what the “worst case

scenario” would be for appellant in terms of prison time and post-release control.

{¶13} The trial court told appellant that, as his own attorney, he would have to

raise and prove any affirmative defenses available to him, as well as any mitigating

defenses. The trial court emphasized that appellant’s lack of knowledge of the existence

of these defenses or the appropriate procedure to introduce them would not be grounds

for appeal, and suggested this was a good reason to have counsel rather than proceed

pro se; the court also stated appellant would be wise to have counsel to preserve issues

for appeal.

{¶14} When the trial court asked if appellant had any questions, appellant stated,

“there is not much I have to say.” Appellant proceeded to suggest he may want to enter

a plea of not guilty by reason of insanity. The trial court stated appellant could enter that

plea if he liked, but suggested appellant consult with counsel in order to get that plea Morrow County, Case No. 2020CA0010 6

properly before the court, and suggested he would be better off having counsel assist him

with plea due to the evidence that would likely be necessary to assist appellant, such as

the subpoenaed testimony of psychiatrists or psychologists.

{¶15} Due to the pandemic, the courthouse was not a setting in which the required

social distancing could be maintained. Thus, the trial would have to be continued until

the county obtained an alternate trial site. Appellant said, “then I should probably plead

guilty and apologize for committing this,” because “it might be easier. There was

extenuating circumstances and there was a big miscommunication, disinformation from,

I guess, various places.” Appellant then spoke with his standby counsel, and confirmed

to the court he wanted to change his plea to a no contest plea. The trial court stated

appellant had to come to the courtroom in-person to complete the plea, and set the matter

for July 20, 2020.

{¶16} The trial court issued a judgment entry setting the matter for a change of

plea hearing and stating that, after it further advised appellant of his rights and

responsibilities acting pro se, appellant indicated he wanted to change his plea. At the

change of plea hearing on July 20, 2020, appellant stated he no longer wished to plead

no contest.

{¶17} The trial court held a jury trial in October of 2020. At trial, the county clerk

testified about court records indicating that appellant pled guilty to illegal use of a minor

in nudity-oriented material, was declared a Tier I sex offender, and was notified of his

registration requirements. Appellant’s sister testified that appellant was living in Indiana

for a time, but returned to Ohio in June of 2019. She also testified that appellant threated Morrow County, Case No. 2020CA0010 7

her and stated he was going to slit her throat. On July 8, 2019, Detective Smith found

appellant’s van in the library parking lot and found appellant interacting with children.

{¶18} Appellant testified he did everything in his power to register and that his

sister was cyber-stalking him. Appellant stated he was not required to register because

of the prior perjury of multiple individuals involved in the case.

{¶19} On October 5, 2020, the jury found appellant guilty of the charge in the

indictment. The trial court ordered a pre-sentence investigation report and set a

sentencing hearing for October 23, 2020.

{¶20} The trial court issued a judgment entry of sentence on October 27, 2020,

sentencing appellant to seventeen months in prison. The trial court specifically stated it

asked appellant if he would be willing to be on community control, but appellant clearly

indicated he would not be willing to do so. As a result, the court found appellant not

amenable to community control and imposed a prison term of seventeen months in

prison, with jail time credit of 407 days.

{¶21} Appellant appeals the October 27, 2020 judgment entry of the Morrow

County Court of Common Pleas, and assigns the following as error:

{¶22} “I. APPELLANT’S RIGHT TO COUNSEL UNDER FEDERAL AND STATE

CONSTITUTIONS WERE VIOLATED WHEN THE TRIAL COURT PERMITTED HIM TO

PROCEED PRO SE WITHOUT ENSURING A KNOWING, INTELLIGENT, AND

VOLUNTARY WAIVER OF COUNSEL.”

I.

{¶23} Whether appellant waived his right to counsel is an issue that we review de

novo. State v. Nelson, 1st Dist. Hamilton No. C-150480, 2016-Ohio-8064. Morrow County, Case No. 2020CA0010 8

{¶24} The Sixth Amendment to the United States Constitution and Section 10,

Article I of the Ohio Constitution provide a criminal defendant has a right to counsel.

Criminal Rule 44(A) provides that a defendant is entitled to counsel “unless after being

fully advised of his right to assigned counsel, he knowingly, intelligently, and voluntarily

waives his right to counsel.”

{¶25} A criminal defendant also has the constitutional right to waive counsel and

to represent himself at trial. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d

562 (1975). In such a situation, “the Constitution * * * require[s] that any waiver of the

right to counsel be knowing, voluntary, and intelligent * * *.” Iowa v. Tovar, 541 U.S. 77,

124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), Criminal Rule 44(A). “In order to establish an

effective waiver of [the] right to counsel, the trial court must make sufficient inquiry to

determine whether [the] defendant fully understands and intelligently relinquishes that

right.” State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976).

{¶26} In Gibson, the Ohio Supreme Court applied the test set forth in Von Moltke

v. Gillies, 332 U.S. 708, 68 S.Ct. 316 (1948), which established the requirements for a

sufficient pretrial inquiry by the trial court into a waiver of counsel:

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 professed waiver of counsel is understandingly and wisely made Morrow County, Case No. 2020CA0010 9

only from a penetrating and comprehensive examination of all the

circumstances under which such a plea is tendered.

{¶27} Appellant contends the trial court committed error in permitting him to

represent himself, as his waiver was not knowing, intelligent, and voluntary, because the

trial court did not sufficiently explain the disadvantages of proceeding pro se, and did not

have a detailed discussion with appellant about the defenses available to him and the

advantages of court-appointed counsel. We disagree with appellant.

{¶28} The record reflects the trial court adhered to the Gibson standard and

complied with the requirements of Criminal Rule 44(A). The trial court set aside time to

conduct a hearing for the specific purpose of considering appellant’s decision to represent

himself. The record reveals this hearing was not cursory, and the trial court encouraged

appellant to reconsider and have Attorney Johnson represent him. A significant amount

of time was spent advising appellant of the nature of the charges, advising him of the

potential penalties, advising him about post-release control, stating he would be held to

the same rules of evidence an attorney has to follow, and informing appellant he would

have to raise affirmative or mitigating defenses.

{¶29} The judgment entry from the June 19th hearing states the court informed

appellant he would be at a great disadvantage in representing himself.

{¶30} At the July 15th hearing, the trial court specifically cautioned appellant that

because of his lack of experience and lack of knowledge of the rules of evidence, he may

have difficulty asking questions of the witnesses. The court suggested appellant’s lack

of knowledge of affirmative or mitigating defenses was a good reason to have counsel

rather than proceed pro se; additionally, that appellant would be wise to have counsel to Morrow County, Case No. 2020CA0010 10

preserve issues for appeal. The trial court informed appellant that he could plead not

guilty by reason of insanity, but stated appellant would be wise to consult counsel in order

to determine who would need to be subpoenaed and testify, such as a psychiatrist or a

psychologist. Finally, the trial court appointed standby counsel to assist appellant in

preparation for trial, and to remain throughout the trial and sentencing. State v. Gibson,

5th Dist. Stark No. 2013CA00175, 2014-Ohio-1169.

{¶31} Further, at the beginning of his trial during jury selection, appellant again

stated that his attorney was not adequate and he did not want him to represent him.

Throughout the proceedings (June 19th judgment entry, July 15th hearing, beginning of

trial) appellant consistently stated he wanted to fire his attorney and represent himself.

{¶32} Unlike the cases in which we have found the defendants did not knowingly,

voluntarily, and intelligently waive their right to counsel, in this case, the trial court

completed a thorough review of the charge, allowable punishment, and reviewed with

appellant the dangers of representing himself. See State v. Smith, 5th Dist. Muskingum

No. CT2017-0066, 2018-Ohio-5121 (waiver of counsel was not voluntarily and

intelligently made when the court did not engage Smith in a conversation regarding the

nature of the charges, allowable punishments, possible defenses, or any of the dangers

of representing himself); State v. Ngaka, 5th Dist. Delaware No. 19 CAC 09051, 2020-

Ohio-3106 (asking “is that what you want to do” did not sufficiently demonstrate

appellant’s decision to waive counsel).

{¶33} In appellant’s previous case, the trial court did not explain the charges

against him, did not explain the dangers of self-representation, and there was concern

expressed by counsel about appellant’s recent mental state. State v. Overton, 5th Dist. Morrow County, Case No. 2020CA0010 11

Morrow No. 12CA0019, 2013-Ohio-3590. Here, the trial court explained the charge to

appellant and explained the dangers of self-representation. There was no concern

expressed by counsel about appellant’s recent mental state.

{¶34} Appellant contends that because he had previously been declared

incompetent and had to be restored to competency, it should have triggered a more

rigorous colloquy than normal. However, as this court has previously stated, “the

competence that is required of a defendant seeking to waive his right to counsel is the

competence to waive the right, not the competence to represent himself.” State v.

Newman, 5th Dist. Stark No. 2017CA00219, 2018-Ohio-3253, quoting Godinez v. Moran,

509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). Appellant’s lack of understanding

of trial procedure and/or defenses are not relevant to appellant’s competence to waive

his right to counsel. Id.

{¶35} At the July 15th hearing, the trial court discussed appellant’s competency

with him, finding he was reasonably well-educated and had good language skills.

Appellant stated he felt comfortable with the proceedings and knew what was going on,

and had no questions of the trial court. After appellant suggested he may want to plead

not guilty by reason of insanity, he then stated he would plead no contest and apologize.

At that point in the case, appellant had been restored to competency according to the

report provided by Dr. O’Reilly, and appellant’s actions with regards to his demeanor

during the proceedings were consistent with Dr. O’Reilly’s notes in his report declaring

appellant competent. The record fails to reflect that appellant was incompetent to waive

his right to counsel. Morrow County, Case No. 2020CA0010 12

{¶36} The trial court did not commit error in permitting appellant to represent

himself. Appellant’s waiver of counsel was knowing, intelligent, and voluntary.

Appellant’s assignment of error is overruled.

{¶37} The October 27, 2020 judgment entry of the Morrow County Court of

Common Pleas is affirmed.

By Gwin, P.J.,

Delaney, J., and

Wise, Earle, J., concur