[Cite as State v. Thomas, 2019-Ohio-132.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170400 TRIAL NO. B-1506725 Plaintiff-Appellee, : O P I N I O N. vs. :
HAROLD DUANE THOMAS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed and Cause Remanded
Date of Judgment Entry on Appeal: January 18, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} Defendant Harold Duane Thomas was convicted of drug offenses and
having weapons under disability after representing himself at a jury trial, during
which he advanced a “sovereign citizen” defense. On appeal, Thomas contends the
trial court erred by failing to sua sponte order a competency evaluation before
allowing him to waive his right to counsel. He also faults the court for admitting
evidence of a prior drug conviction, for failing to liberally construe his written and
oral motions as motions for assistance in subpoenaing the state’s nontestifying
confidential informant, and for failing to merge his drug-trafficking and possession
offenses.
{¶2} We conclude that the trial court erred by failing to merge the
possession offense into the trafficking offense, but that Thomas’s other arguments
alleging reversible error lack merit.
I. Background Facts and Procedure
{¶3} In late November of 2015, Cincinnati Police Sergeant Ryan Hudson
received a phone call from a law enforcement officer in Kansas that led to a controlled
delivery of marijuana to Thomas’s residence in Cincinnati. Before the delivery, the
police recorded a phone call between Thomas and his associate “Sergio,” who was
cooperating with the police as an informant. Thomas’s statements during the call
demonstrated he was expecting a delivery of drugs and had made some preliminary
arrangements for the distribution of drugs. Officers performing surveillance on
Thomas’s residence observed Sergio arrive at the house in a minivan, followed by
Sergio’s and Thomas’s removal of the cellophane-wrapped bundles of marijuana from
the back of the minivan into Thomas’s garage. Thomas then left the residence in a
vehicle and was apprehended and taken into custody a short time later. During a search
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of the residence, the police found over 40,000 grams of marijuana in Thomas’s garage
and an operable .25-caliber firearm in the dining room, along with around $2000 in
cash. Additionally, they recovered personal papers belonging to Thomas and several
ledgers containing notations known by narcotics officers to be slang for drug-trafficking
terms.
{¶4} In his police interview with Police Officer Matthew Waters after his
arrest, Thomas indicated that he resided at the residence with his girlfriend and Sergio
Gonzales. He said that he had sold marijuana in the past, and admitted that he had
helped Sergio unload the marijuana into his garage. He first told the police that Sergio
had found the marijuana on the side of the road, but then claimed that Sergio had taken
the marijuana from another drug dealer who had been arrested by the police. Finally,
Thomas predicted that the police would find a .25-caliber pistol in the house.
{¶5} As a result of the investigation, Thomas was charged with one count of
trafficking marijuana in violation of R.C. 2925.03(A)(2), one count of possession of
marijuana in violation of R.C. 2925.11(A), and one count of having weapons under a
disability in violation of R.C. 2923.13(A)(3). Thomas’s 1988 federal conviction for the
distribution of cocaine created the disability for the weapons offense.
{¶6} Thomas was initially represented by appointed counsel, who filed a
variety of pretrial motions on Thomas’s behalf. But counsel reported to the court that he
had had a “long conversation” with Thomas about the case and that they did not see
“eye-to-eye” on how to proceed. Thomas thought the state’s plea offer was inadequate,
and he wished to proceed without the assistance of counsel, as “pro-per” or “propria-
persona,” and to pursue in part a strategy promoting a “sovereign citizen” or “flesh and
blood” defense. This sovereign-citizen defense is marked by nonsensical claims
challenging the trial court’s jurisdiction and “theorizing that [American] citizenship is
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grounded in a contract between each citizen and the federal government-a contract that
may be canceled by renouncing citizenship.” Evans, The Flesh & Blood Defense, 53 Wm.
& Mary L.Rev. 1361, 1371 (2012). As explained by Thomas, “[e]ach of us has two pro
personas. We have our human side and the created side. * * * Joseph John Smith,
lower case, is a natural flesh and blood human created by God. John Joseph [sic] Smith,
all caps, commercial, commerce is a U.S. Corporation, artificial purpose, U.S. citizen
created by the government.”
{¶7} Thomas also sought to disqualify the judge originally assigned to his
case, claiming bias. That judge accepted Thomas’s oral waiver of counsel, but continued
the case and later recused. The new trial judge assigned to the case accepted Thomas’s
written waiver of counsel. The new judge also denied Thomas’s sovereign-citizen-based
motion to dismiss.
{¶8} In addition to filing multiple pretrial motions, Thomas subpoenaed
multiple witnesses for trial. One witness was an expert that the court had afforded to
Thomas to independently analyze the leafy substance recovered by the police in
Thomas’s garage.
{¶9} At trial, the state presented its evidence demonstrating Thomas’s guilt.
This included the recorded call between Thomas and Sergio, the surveillance video of
the delivery of the marijuana to Thomas’s residence, and the testimony from the police
officers who had observed Thomas’s conduct. Thomas cross-examined those witnesses,
presented objections to their testimony, and recalled to the stand Officer Steve Batsch,
who had testified for the state about the investigation of Thomas’s drug-trafficking
activities. Thomas’s questions of Officer Batsch were aimed at casting doubt on the
police’s reliance on Sergio as an informant and the state’s theory that some of the
evidence that the police had recovered from Thomas’s residence, such as ledgers, had
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been used by Thomas in a drug-trafficking operation. Thomas did not call any other
witnesses, including the expert he had subpoenaed.
{¶10} During closing argument, Thomas argued the evidence showed only that
he was running a legitimate business and the marijuana recovered belonged to Sergio.
He also presented an argument in support of his sovereign-citizen-based defense, which
he had introduced to the jury during his opening statement.
{¶11} Ultimately, the jury found Thomas guilty of the three offenses with
which he had been charged. The trial court then sentenced Thomas to eight years in
prison for both the trafficking and possession offenses, to be served concurrently, and to
30 months in prison for the disability offense, to be served concurrently to the other
II. Analysis
{¶12} In his first assignment of error, Thomas contends the trial court erred by
failing to sua sponte order a competency evaluation before allowing the waiver of trial
counsel. To be valid, a waiver of counsel must be knowingly, intelligently, and
voluntarily entered. See Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 125
L.Ed.2d 321 (1993); State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976),
paragraph one of the syllabus, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525,
45 L.Ed.2d 562 (1975). Under Faretta, the trial court must engage the defendant in a
rigorous colloquy to determine the validity of the waiver. See Gibson at paragraphs one
and two of the syllabus.
{¶13} Thomas challenges only the intelligent nature of his waiver, claiming he
lacked the competency for a valid waiver. “The competency 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.” Godinez at 399. The defendant must have the
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“ ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational
understanding’ and ha[ve] a ‘rational as well as factual understanding of the proceedings
against him.’ ” Id. at 396, quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4
L.Ed.2d 824 (1960). This is same standard for determining one’s competency to stand
trial. Godinez at 399.
{¶14} Evidence relevant to a competency inquiry includes the defendant’s
medical history, any connection between the defendant’s serious mental disease or
defect and some failure to understand the proceedings, assist in his own defense, or
present his own defense, and the defendant’s conduct in and out of court. See United
States v. Neal, 776 F.3d 645, 655 (9th Cir.2015). See also United States v. Miller, 531
F.3d 340, 348 (6th Cir.2008), citing Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896,
43 L.Ed.2d 103 (1975).
{¶15} A defendant is presumed competent. State v. Jordan, 1010 Ohio St.3d
216, 2004-Ohio-783, 804 N.E.2d 1, ¶ 28-29. But when there is reasonable cause to
doubt a defendant’s competency to waive the right to counsel or to stand trial, the trial
court must make a sufficient inquiry before proceeding in order to protect the
defendant’s due process right to a fair trial. See Godinez; Unites States v. Coleman, 871
F.3d 470, 475 (6th Cir.2017); Neal at 655; Jordan at ¶ 29; State v. Were, 94 Ohio St.3d
173, 761 N.E.2d 591 (2002), paragraph two of the syllabus. Here, there was no evidence
that Thomas suffered from any serious mental disease or defect. Thomas claims,
however, that his endorsement of the sovereign-citizen belief system was sufficient
indicia of incompetency to require the court to sua sponte order a competency
evaluation.
{¶16} We disagree that Thomas’s endorsement of the sovereign-citizen belief
system triggered the trial court’s duty to sua sponte order a competency evaluation.
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Surely Thomas espoused fringe views. But this alone did not mean Thomas could not
cooperate with his lawyer or understand the judicial proceedings against him. Our prior
decisions do not support such a rule.
{¶17} In State v. Furr, 1st Dist. Hamilton No. C-170046, 2018-Ohio-2205, a
case also involving a pro se defendant espousing a sovereign-citizen defense, we
characterized the competency evaluation ordered by that trial court as one of the
“extraordinary measures” the trial court took to ensure a valid waiver of counsel. Id. at
¶ 29. We did not suggest that the evaluation was required because of the defendant’s
fringe views.
{¶18} Likewise, in State v. Robinson, 1st Dist. Hamilton No. C-150346, 2016-
Ohio-3330, we noted that the trial court had ordered a competency evaluation of a
defendant, who had espoused a sovereign-citizen belief system, based on the defendant’s
behavior at his arraignment and his pro se filings. Id. at ¶ 20. But we did not indicate
the evaluation was required based on the defendant’s fringe views, and we upheld the
trial court’s determination that the defendant had validly waived counsel. Id. at ¶ 25.
{¶19} Other courts addressing this issue have similarly held that holding fringe
views alone does not trigger the need for a competency evaluation. Coleman, 871 F.3d at
476, and authorities cited therein; Neal, 776 F.3d at 657. For instance, in Neal, the
Ninth Circuit rejected the defendant’s attempt to use his professed sovereign-citizen
belief system “as an expression of incompetency” that alone created a genuine doubt
concerning his competency and necessitated the court to sua sponte order a hearing on
the issue before allowing the defendant to proceed pro se. Neal at 657. In this case, as
in Neal, a competency evaluation was not necessary because the only evidence of
incompetence was the unusual nature of Thomas’s beliefs.
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{¶20} Thomas did not manifest any observable signs of incompetency during
his proceedings such that a reasonable judge would experience genuine doubt about his
competency. He waived his right to counsel twice. The trial court’s inquiry at the
second Faretta hearing was particularly comprehensive and exemplary. The court
questioned Thomas about whether he understood both factually and rationally the
criminal proceedings against him, and whether he was making a knowing, intelligent,
and voluntary choice in waiving his right to counsel. Thomas indicated that he
understood and wished to proceed without counsel, notwithstanding the court’s
repeated warnings related to the dangers and disadvantages of self-representation, and
its clear notification that Thomas was facing a possible aggregate prison term of 11 years.
{¶21} Certainly Thomas espoused his “sovereign citizen” rhetoric during that
hearing, claiming that he was not subject to laws of Ohio or the rules of criminal
procedure and evidence that the court made clear would apply. But Thomas also
repeatedly told the court that he “[was] aware” of his rights and “understood” the
charges and potential penalties. And he demanded that the court make available to him
a copy of the Rules of Evidence and the Rules of Criminal Procedure.
{¶22} The record further reflects that Thomas appreciated the criminal nature
of the proceedings and that he was facing significant prison time if found guilty. For
instance, when the court told him that he was facing a mandatory eight-year prison term
for the trafficking offense, Thomas indicated that he thought a range of two to eight
years applied, based on his reading of the sentencing provisions, before telling the court,
“Okay.” And Thomas repeatedly voiced his concern about going to prison for 11 years if
he was convicted.
{¶23} At the second Faretta hearing, the court also inquired of the prosecutor
on the issue of Thomas’s competency. The prosecutor informed the court that his
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interactions with Thomas had led him to believe that Thomas understood the charges
against him and could assist in his own defense. The prosecutor reported that Thomas’s
competency had not been questioned in this case. This comment accurately reflected
upon defense counsel’s remarks at an appearance before the original judge that Thomas
was not only capable of relating to him, but that he had had a lengthy discussion
concerning trial strategy with counsel before counsel’s dismissal.
{¶24} Similarly, the record does not include evidence suggesting Thomas’s
incompetency during the trial. Thomas participated effectively and with a fair degree of
skill, including presenting relevant and meritorious objections and arguments. He
disagreed with the applicable rules of procedure and evidence, but followed them.
Finally, he was acutely aware that the proceedings were criminal in nature and not civil.
He repeatedly voiced his concern over going to prison for 11 years, and even pleaded
with the court not to impose any jail time on his daughter, who had been found in
contempt of court during his trial.
{¶25} Ultimately, we conclude there was no reasonable cause for the trial court
to believe that Thomas could not cooperate with an attorney, if he chose to do so, or
understand the judicial proceedings against him. Consequently, we hold the trial court
had no duty to sua sponte order a competency evaluation before accepting Thomas’s
waiver of counsel and allowing Thomas to proceed pro se at trial. Accordingly, we
overrule the first assignment of error.
{¶26} In his second assignment of error, Thomas argues that the trial court
erred by admitting testimony from Officer Waters about Thomas’s statement in his
police interview that he had previously served two years in prison in the 1980s for selling
up to an ounce of marijuana. Thomas now contends the testimony improperly
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referenced his prior drug conviction that served as the disability for the weapons-under-
a-disability offense, which he had previously stipulated to for purposes of trial.
{¶27} Generally, the state is not permitted to adduce facts on the disability-
creating prior conviction when the defendant has previously stipulated to having the
disability. See Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574
(1997); State v. Creech, 150 Ohio St.3d 540, 2016-Ohio-8440, 84 N.E.3d 981. But the
admission of the challenged testimony in this case did not implicate this rule because
Officer Waters’s testimony referenced a conviction involving the sale of marijuana, and
not the distribution-of-cocaine conviction that served as the disability for the weapons
offense.
{¶28} Thomas also argues that the testimony was other-acts evidence
inadmissible under Evid.R. 404(B). Thomas did not raise an Evid.R. 404(B) objection
in the trial court, and, accordingly, has forfeited all but plain error. Evid.R. 103(A)(1);
Crim.R. 52(B). Additionally, Thomas solicited testimony from Officer Waters about his
prior marijuana sales, thus contributing to any error. In light of the record, including
the overwhelming evidence of guilt presented by the state, we hold that any error in the
admission of Officer Waters’s testimony briefly referencing Thomas’s prior marijuana-
sale conviction did not rise to the level of plain error. Accordingly, we overrule the
second assignment of error.
{¶29} In his third assignment of error, Thomas argues the trial court violated
his constitutional rights to a fair trial and compulsory process by failing to liberally
construe his oral and written motions, including motions requesting discovery of
Sergio’s criminal record and statements, as motions “to have Sergio subject to
compulsory process and brought to trial as a witness.” The gist of his argument, as
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clarified in his reply brief, is that the trial court should have helped him subpoena Sergio
as a witness.
{¶30} The right to a fair and meaningful opportunity to defend includes the
right to present witnesses. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18
L.Ed.2d 1019 (1967). This includes the right to secure their attendance through
compulsory process. Id. Here, the trial court sought to ensure these rights by repeatedly
offering Thomas the assistance of a legal advisor to consult with Thomas on legal
procedures, including the subpoenaing of witnesses. Thomas rejected this assistance
because he did not need it, as reflected in the record showing that Thomas repeatedly
subpoenaed witnesses other than Sergio.
{¶31} The record further demonstrates that Sergio’s identity was known to
Thomas and that his testimony would have inculpated Thomas. We can only surmise
from this record that Thomas sought the discovery of impeaching information because
he wished to diminish the persuasiveness of the state’s evidence against him by
impeaching Sergio without calling Sergio to testify.
{¶32} Thus, we hold that the trial court did not deprive Thomas of a fair trial
and his right to compulsory process when it failed to construe his motions as motions to
compel the attendance of Sergio. Accordingly, we overrule the third assignment of error.
{¶33} In his fourth assignment of error, Thomas argues the trial court
committed plain error by imposing prison sentences for both marijuana-related
offenses, because those offenses were allied offenses of similar import under R.C.
2941.25 and should have merged for purposes of sentencing.
{¶34} Sentencing a defendant to separate, concurrent terms for allied offenses
of similar import that merge results in plain error. See R.C. 2941.25(A); State v.
Hamilton, 1st Dist. Hamilton No. C-160247 and C-160248, 2017-Ohio-8140, ¶ 55. In
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this case, the state brought up the merger issue at sentencing and informed the court
that it was electing to have Thomas sentenced on the trafficking offense. After finding
the offenses merged, the trial court imposed sentences on both the trafficking and
possession offenses and ordered that the sentences be served concurrently. Because the
trial court imposed separate sentences for the drug offenses after determining that the
offenses merged, Thomas has demonstrated plain error. We therefore sustain the fourth
assignment of error.
{¶35} Ordinarily, this court would reverse the judgment of conviction with
respect to the allied offenses and remand the cause for resentencing to allow the state to
choose which of the allied offenses to pursue at sentencing. See State v. Whitfield, 124
Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraphs one and two of the syllabus.
But here, at the sentencing hearing the trial court determined that the offenses merged
and the state elected to pursue the trafficking offense. Thus, we remand only for the trial
court to correct the judgment of conviction to reflect the merger of the possession
offense into the trafficking offense and to eliminate the language imposing a prison term
for the possession offense.
III. Conclusion
{¶36} In sum, we affirm the trial court’s judgment of conviction but remand
the case for the trial court to correct the judgment of conviction to reflect the merger of
the possession offense into the trafficking offense.
Judgment accordingly.
M OCK , P.J., and D ETERS , J., concur.
Please note: The court has recorded its own entry this date.