State v. Simon , 2021 Ohio 3090 ( 2021 )

[Cite as State v. Simon, 2021-Ohio-3090.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY
STATE OF OHIO, :
: Case No. 20CA14
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
SHAWN C. SIMON, :
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.
Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher,
Gallia County Assistant Prosecuting Attorney, Gallipolis, Ohio, for
Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} Shawn C. Simon appeals the sentencing judgment entry filed
August 31, 2020 in the Gallia County Court of Common Pleas. Mr. Simon,
“Appellant,” was convicted by a jury on two first-degree felonies: Count
One, Possession of Cocaine, a violation of R.C. 2925.11(A)/(C)(4)(e), and
Count Two, Trafficking in Cocaine, a violation of R.C.
2925.03(A)(2)/(C)(4)(f). On appeal, Appellant challenges (1) the trial
court’s acceptance of his waiver of counsel and (2) the trial court’s failure to
Gallia App. No. 20CA14 2
sua sponte order a competency evaluation. For the reasons which follow, we
find no merit to Appellant’s arguments. We hereby overrule both
assignments of error and affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
{¶2} On September 19, 2019, in Gallia County, Trooper Drew
Kuehne initiated a traffic stop after observing Appellant appearing to sit low
in his seat, change lanes improperly, and then failing to maintain an assured
clear distance. During the traffic stop, Trooper Kuehne noticed various
indicators of nervousness. He also smelled marijuana.
{¶3} Trooper Kuehne requested Appellant step out of the vehicle. As
Appellant walked toward Trooper Kuehne, the trooper noticed Appellant
attempting to squeeze something between his legs as he walked. During a
pat down search of Appellant, Trooper Kuehne found a substance later
determined to be cocaine. Appellant was arrested.
{¶4} On October 10, 2019, Appellant was indicted. Appellant was
arraigned on January 6, 2020. He entered not guilty pleas and was appointed
counsel. After discovery was provided, Appellant’s counsel filed a motion
to suppress challenging the traffic stop and the roadside search. Pretrial
conferences and suppression hearing dates were repeatedly continued during
the months of February through May, 2020.
Gallia App. No. 20CA14 3
{¶5} On May 29, 2020, Appellant, on his own initiative, filed a
document captioned, “Affidavit of Fact/Writ of Discovery.” The heading on
the document is “The Moorish National Republic, The Moorish
Divine and National Movement of the World, Aboriginal and Indigenous
Natural Peoples of North America.”1 The document contained “Exhibit 1:
Challenge of Jurisdiction/Delegation of Authority.” The document was
signed by “Shawn Christopher Simon Bey,” and below the signature line is
“Simon Bey, Authorized Representative Natural Person, In Propria Persona:
Ex Relatione Your Straw Name (if Applicable) All Rights Reserved:
UCC.1-207/1-308: UCC 1-103, Charleston, W.V. Near Corporate [West
Virginia] Territory.” Next to Appellant’s signature is what appears to be a
red fingerprint seal.
{¶6} On June 4, 2020, during a telephone status conference,
Appellant’s trial counsel, Attorney Britt T. Wiseman, advised the court and
the prosecutor that Appellant had filed lengthy documents with the clerk’s
office without his approval. Attorney Wiseman and the prosecutor agreed
that in light of the filings the suppression hearing date should be continued
1
Contained within the voluminous filing is a copy of the Treaty of Peace and Friendship, 1787, between
Morocco and the United States; the United States Constitution and Bill of Rights; United Nations
Declaration on the Rights of Indigenous People; and The Zodiac Constitution. It appears that these
documents were also served to United States Secretary of State Michael Pompeo; West Virginia Governor
Jim Justice; Secretary of the United Nations Antonio Guiterrez; Bishop Mark Brennan of Wheeling, West
Virginia; Attorney General Jeff Sessions; and President Donald J. Trump.
Gallia App. No. 20CA14 4
and a status hearing date should be set to deal with Appellant’s independent
filings.
{¶7} Thereafter at a June 11, 2020 status hearing, Appellant, for the
first time, immediately demonstrated an uncooperative attitude. This is also
the first time Appellant behaved in a way in which, he now argues,
demonstrates his alleged incompetency. Appellant began by balking at
approaching the front of the courtroom. Appellant repeated that he did not
“want to enter your jurisdiction.” After much urging and explaining that he
needed to sit closer to participate in the hearing and, literally, be heard by
the court, Appellant acquiesced after his counsel indicated he should
cooperate “so you can go home today.”
{¶8} Attorney Wiseman began the status conference by explaining
that Appellant had requested his removal as counsel. Appellant wished to
contest the jurisdiction of the court. Attorney Wiseman indicated there was
no real disagreement between the two, but rather Appellant had expressed
the desire to exercise his right to represent himself.
{¶9} At this point, the trial court asked Appellant how he wished to
proceed. Appellant replied with a diatribe which would oft be repeated
during the remainder of the proceedings. To summarize, Appellant
indicated he is an Allodial American National, under the Treaty of Peace and
Gallia App. No. 20CA14 5
Friendship of 1789 between Morocco and the United States. Appellant
disputed the jurisdiction of the court and vehemently expressed his desire to
terminate the services of his court-appointed attorney.
{¶10} The trial court expressed her concern that Appellant was facing
significant felony charges. The trial court decided to continue the case for
one week. Appellant’s request to represent himself was granted. Attorney
Wiseman agreed to be available on a standby basis if Appellant had
questions and he was ordered to do so by the court.
{¶11} The trial court also advised Appellant that he had the right to
hire his own lawyer. This led into another lengthy and repetitive speech
with Appellant again objecting to his counsel and to the jurisdiction of the
court. The trial court scheduled the matter for a status hearing on June 22nd
on the objection to jurisdiction. After the hearing was concluded, the trial
court asked Appellant if he had additional questions. Appellant responded,
“No have a nice day.” When the trial court responded in like fashion,
Appellant inquired “Can you get a later date?” The trial court denied
Appellant’s request.
{¶12} The parties were back in court on June 22nd for the hearing on
Appellant’s objection to jurisdiction. The trial court asked Appellant if he
had any preliminary remarks for the record. Appellant launched into his
Gallia App. No. 20CA14 6
familiar refrain about being an Allodial American Moorish American and
arguing that the court lacked jurisdiction over him. The State of Ohio
waived opening remarks. The trial court then asked Appellant to make his
arguments objecting to jurisdiction. Appellant engaged in another repetitive
speech which continued over several pages of the hearing transcript.
{¶13} Recognizing that Appellant had filed voluminous documents
purporting to challenge jurisdiction and without providing copies to the
prosecutor’s office, the trial court continued the matter in order to give the
prosecutor a chance to review and respond.2 Appellant was uncooperative
with the trial court and continued to object to jurisdiction and to further court
dates. After additional lack of cooperation and repetitive ranting, Appellant
wished the trial court a good day. Appellee filed a Post-Hearing Brief on
Subject Matter Jurisdiction.
{¶14} The next status conference took place on July 30, 2020.
Appellant again behaved contentiously. For the first time, Appellant made
his “syntax” argument. One portion of Appellant’s speech on this date is as
follows:
The attorney is using, the Prosecuting attorney is using a
noun as a verb and using a noun as an adjective. Also
using adverbs in his sentence structure and that is the
2
On June 17, 2020, Appellant’s filing included a copy of The Magna Carta; an excerpt entitled: “1.
Decolonization as Moment and Process”; the Moorish Zodiac Constitution; and the Moorish National
Zodiac Constitution.
Gallia App. No. 20CA14 7
definition of fraudulent conveyance of language.
Falsification of public record and fraud, false claim, the
lie, he is committing perjury and they are crimes. They
are the type of writing that does not allow me to make a
claim and if I cannot make a claim I cannot defend
myself and that’s what I have proven in the syntax
documents that has been filed.
At the conclusion of Appellant’s soliloquy, the trial court inquired if
Appellant was asking her to vacate the case because of “fraudulent
conveyance of language.” Appellant replied, “Yes. Proper grammar.” The
trial court overruled Appellant’s verbal motion to vacate.
{¶15} The court next inquired as to whether Appellant wished to
proceed on the suppression motion previously filed by Attorney Wiseman.
Appellant refused to answer the court’s questions directly. Rather,
Appellant’s response, which would be utilized seven times in the hearing,
was as follows: “[R]ight now I don’t have an answer for you, but I can write
down your concern and have my counsel * * * get back with you on that.”
Thereafter, the prosecutor raised concern that Appellant had referenced
“counsel,” and wanted to clarify the identity of Appellant’s counsel.
Appellant responded: “Yes. I have counsel through my organization of the
Moorish Science Temple and he cannot travel because of * * * Covid.”
Gallia App. No. 20CA14 8
Appellant was advised that he could not be represented by a person who did
not hold a law license.3
{¶16} The trial court concluded the hearing, advising Appellant that
the suppression hearing would take place as scheduled on August 5, 2020,
and defense counsel would again be available on standby. The trial court
overruled Appellant’s jurisdictional challenge, finding the Gallia County
Court of Common Pleas had both personal and subject matter jurisdiction
over Appellant.4 Appellant’s jury trial date was scheduled for August 21,
2020.
{¶17} At the suppression hearing on August 5th, the trial court gave
Appellant a chance to make opening argument and Appellant repeated his
lengthy “syntax” argument, concluding by asking for a continuance until the
prosecutor had answered discovery and the jurisdictional challenge.
Appellant suggested, “[G]ive the prosecutor ample amount of time so I ask
for a continuance to answer these so I can litigate my case.” The prosecutor
3
In State v. Ellis-Byrom, 5th Dist. Stark No. 2220CA00112, 2020-Ohio-6693, the appellate court dismissed
appeal of party claiming to be Moorish American National where notice of appeal signed by “Azurel Bey”
as “authorized representative,” was not a licensed attorney.
4
Interestingly, the jurisdictional argument has been raised in similar cases involving persons claiming to be
Moorish American sovereigns. See State v. Wyley, 8th Dist. Cuyahoga No. 102889, 2016-Ohio-1118,
(Party’s purported status as a Moorish American citizen does not enable one to violate state and federal
laws without consequence); City of Cleveland v. Wilson, 2017-Ohio-540, 85 N.E.3d 299, (8thDist.)
(Defendant’s self-styled kingship and purported status as citizen of the Moorish Nation did not deprive
municipal court of jurisdiction over traffic offenses); City of Shaker Heights v. El Bey, 2017-Ohio-929, 86
N.E.3d 865 (8th Dist.), (Municipal court had both subject matter jurisdiction and personal jurisdiction over
defendant who was Moorish American national).
Gallia App. No. 20CA14 9
pointed out that the court had issued a written decision on jurisdiction and
that the State had provided written discovery. Appellant then acknowledged
receiving the discovery.
{¶18} After further discussion, Appellant repeated his request for a
continuance, which the trial court overruled. The State presented its case on
suppression through testimony of Trooper Kuehne. When Appellant was
given the opportunity to cross-examine, he began by accusing Trooper
Kuehne of committing fraud and fabricating documents. He also questioned
the trooper about his knowledge of syntax and sentence structure.
{¶19} Appellant called one witness, Kalli Khepera-Bey. However,
before he testified, Appellant requested a continuance because his witness
was not prepared. The State’s objection to the continuance was sustained.
The transcript reflects lengthy questioning of Mr. Khepera-Bey by
Appellant, the State, and the trial court. Essentially, Mr. Khepera-Bey
testified that “Syntaxing is the staple of our society because the language is
the undergirding of our civilization. So syntaxing is the metric used by
people including [j]udges and attorneys to make sure that the language in a
document is in a correct location.” Mr. Khepera-Bey opined that the
language in the documents “turned in by the attorney was fraudulently
conveyed, a modification of the language.”
Gallia App. No. 20CA14 10
{¶20} On cross-examination, Mr. Khepera-Bey admitted that he was
not present when Appellant was pulled over and had no knowledge of the
incident occurring on September 19, 2019, in Gallia County. On August 7,
2020, the trial court issued the decision denying Appellant’s motion to
suppress. At Paragraphs Eight and Nine of the “Journal Entry Suppression
Motion,” the trial court commented:
Further, the Court has repeatedly advised Defendant that
he should have representation by an attorney. The record
is clear that the Court appointed an attorney for
Defendant and that the Defendant has been adamant that
he wishes to represent himself and has objected to having
any attorney appointed. * * * The Court will, once again,
advise the Defendant that he is facing first degree felony
drug charges with mandatory prison if convicted.
Further, Defendant will have to follow all Court,
procedural and evidentiary rules at jury trial. The Court
advises Defendant to seek counsel.
{¶21} On August 14, 2020, the trial court conducted a hearing on
Appellant’s waiver of counsel. The trial court also found Appellant
was competent and understood the gravity of the charges. The trial
court’s entry states:
I believe that you know what you are doing. I’ve talked
with you enough about this. I do not believe that we need
any kind of competency evaluation. I believe this is a
strategy you are choosing after having been made aware
of the risk it puts you at.
Gallia App. No. 20CA14 11
Furthermore, the Court engaged in an hour-long colloquy with Defendant
regarding his decision to represent himself. This colloquy will be set forth
in detail below.
{¶22} On August 21, 2020, the trial court conducted a jury trial.
After the jury was selected Appellant requested a continuance in order to
prepare his defense. The trial court denied the request. The trial proceeded
with the jury returning guilty verdicts on both counts.
{¶23} On August 27, 2020, the trial court, after merging the counts
for purposes of sentencing, imposed a maximum indefinite prison sentence
of 11 to 16 1/2 years. This timely appeal followed.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED WHEN IT
ACCEPTED SIMON’S WAIVER OF COUNSEL
THAT WAS NOT MADE KNOWINGLY AND
INTELLIGENTLY.
II. THE TRIAL COURT ERRED IN FAILING TO
SUA SPONTE ORDER A COMPETENCY
EVALUATION.
{¶24} For ease of discussion, we will first consider Appellant’s
competency argument in his second assignment of error.
STANDARD OF REVIEW
{¶25} A trial court's decision on competency will not be disturbed
absent an abuse of discretion. See State v Lechner, 4th Dist. Highland No.
Gallia App. No. 20CA14 12
19CA3, 2019-Ohio-4071, at ¶ 24; State v. Clark, 71 Ohio St.3d 466, 469,
1994-Ohio-43, 644 N.E.2d 331. An “abuse of discretion” requires more
than an error of judgment; it implies the court's attitude is unreasonable,
arbitrary or unconscionable. Id. at 470. Thus, an appellate court will not
disturb the trial court's competency determination if the record contains
“some reliable, credible evidence supporting the trial court's conclusion that
appellant understood the nature and objective of the proceedings against
him.” State v. Williams, 23 Ohio St.3d 16, 19, 490 N.E.2d 906 (1986); State
v. Stewart, 4th Dist. Gallia No. 91CA24, 1992 WL 174699, *3 (July 22,
1992).
LEGAL ANALYSIS
{¶26} Appellant argues that the trial court’s discussion with him
regarding the competency issue, as well as his absurd defense based on
syntax, demonstrates that he was detached from reality and had no rational
understanding of the proceedings against him. Appellant concludes this
evidence of his behavior and interactions with the court constitutes sufficient
indicia of incompetence and thus the trial court erred by failing to sua sponte
order a competency evaluation.
{¶27} Due process requires a criminal defendant be competent to
stand trial. See Lechner, supra, at ¶ 25; State v. Berry, 72 Ohio St.3d 354,
Gallia App. No. 20CA14 13
359, 1995-Ohio-310, 650 N.E.2d 433. “It has long been accepted that a
person who lacks the capacity to understand the nature and object of the
proceedings against him, to consult with counsel, and to assist in preparing
his defense may not be subjected to a trial.” Drope v. Missouri, 420 U.S.
162, 171, 95 S.Ct. 896 (1975). “Thus, ‘[c]onviction of an accused while he
or she is legally incompetent is a violation of due process.’ ” Lechner,
supra, at ¶ 25, quoting State v. Merryman, 4th Dist. Athens No. 12CA28,
2013-Ohio-4810, ¶ 14. See also, State v. D-Bey, 8th Dist. Cuyahoga
No.109000, 2021-Ohio-60, at ¶ 39.
{¶28} “The United States Supreme Court established the test for
competency and requires the court to determine if an accused ‘has sufficient
present ability to consult with his lawyer with a reasonable degree of rational
understanding - and whether he has a rational as well as factual
understanding of the proceedings against him.’ ” Lechner, at ¶ 26, quoting
Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 789 (1960). Ohio has
codified the competency test:
A defendant is presumed to be competent to stand trial.
If, after a hearing, the court finds by a preponderance of
the evidence that, because of the defendant's present
mental condition, the defendant is incapable of
understanding the nature and objective of the proceedings
against the defendant or of assisting in the defendant's
defense, the court shall find the defendant incompetent to
Gallia App. No. 20CA14 14
stand trial and shall enter an order authorized by section
2945.38 of the Revised Code.
R.C. 2945.37(G). Under this subjective test, if a defendant is capable of
understanding the nature and objective of the proceedings and assisting in
the defense, then the defendant is competent to stand trial. See Lechner at
¶ 27.
{¶29} Appellant raises the exact assignments of error as considered
by the Ninth District Court of Appeals in State v. Tucker, 2016-Ohio-1354,
62 N.E.3d 893 (9th Dist.). In Lorain County, Tucker was convicted of
kidnapping, aggravated robbery, robbery, burglary, and vandalism,
culminating in 25-year prison term. On appeal, Tucker argued that the trial
court abused its discretion by failing to sua sponte order Tucker to undergo a
competency evaluation, based on his “lengthy pretrial colloquies with the
trial court in which he rejected the jurisdiction of the court * * * and
declined to be referenced by his legal name.” Id. at ¶ 9. The appellate court
noted that filings by Mr. Tucker confirmed that his bizarre statements were
consistent with his political philosophy that he is a “Moorish American
Sovereign not subject to the laws or to government institutions.”5 The
Tucker court observed that
5
The Moorish sovereign citizen movement is a collection of independent organizations and lone individuals
that emerged in the early 1990’s as an offshoot of the anti-government sovereign citizens movement, which
believes that individual citizens hold sovereignty over, and are independent of, the authority of federal and
Gallia App. No. 20CA14 15
When a trial court is confronted with whether to order a
competency hearing sua sponte, “relevant considerations
include: (1) doubts expressed by counsel as to the
defendant's competence; (2) evidence of irrational
behavior; (3) the defendant's demeanor at trial; and (4)
prior medical opinion relating to competence to stand
trial.” State v. Rubenstein, 40 Ohio App.3d 57, 60–61,
531 N.E.2d 732 (8th Dist.1987); Elyria v. Bozman, 9th
Dist. Lorain No. 01CA007899, 2002-Ohio-2644, ¶ 7.
See also State v. Spivey, 81 Ohio St.3d 405, 410, 692
N.E.2d 151 (1998).
Id. at ¶ 8.
{¶30} The Tucker court further observed:
As one court has recognized, individuals who espouse
such political philosophies “cling [ ] doggedly to the
sovereign citizen script * * *. The colloquy with the court
is often characterized by frequent interruptions by the
defendant, who attempts to talk over the judge. For the
most part, the defendant's statements to the Court are
gibberish.” United States v. Cartman, N.D.Ga. No. 1:10-
CR-512-01-JEC, 2013 WL 2445158, *2 (June 5, 2013).
Tucker, supra, at ¶ 9.
{¶31} Other courts, when faced with similar circumstances, have
consistently concluded that while such behavior may reflect unusual beliefs
and may go so far as to obstruct trial court proceedings, they are not indicia
of incompetency that require a hearing. “[M]erely believing in fringe views
does not mean someone cannot cooperate with his lawyer or understand the
state governments. See https://www.splcenter.org/fights-hate/extremist-files/group. Moorish sovereigns
sustain themselves by selling bogus legal documents, fraudulent auto insurance forms, fake license plates,
counterfeit passports and various other documents. They also save money by practicing tax avoidance
schemes or tax fraud. Id.Gallia App. No. 20CA14 16
judicial proceedings around him.” United States v. Gooch, 595 Fed.Appx.
524, 527 (6th Cir.2014). Accord United States v. Landers, 564 F.3d 1217,
1222 (10th Cir.2009). (Internal citations omitted.) Tucker, supra, at ¶ 10.
The Tucker court concluded that although Tucker maintained his “rhetoric”
throughout the pretrial proceedings, “a review of the record as a whole
indicates that he participated intelligently and appreciated the nature of the
charges against him. * * * Given all of Mr. Tucker’s statements in their
context within the proceedings, we cannot conclude there was sufficient
indicia of incompetency to require the trial court to sua sponte order a
competency evaluation.” Id. at ¶ 11.
{¶32} The same is true in Appellant’s case. Here, our review of the
record indicates that any issue of Appellant's alleged incompetency was not
immediate or obvious. The January 6, 2020 arraignment hearing transcript
reveals that Appellant appeared with counsel at his arraignment and
appropriately interacted with counsel and the court. He made no dispute
with regard to his name as “Shawn Simon,” nor did he dispute the
jurisdiction of the court or disparage his appointed counsel. When the issue
of bond arose, Appellant’s counsel noted that a family member on
Appellant’s behalf had contacted the prosecutor’s office and inquired about
how Appellant could turn himself in after he had been indicted. Appellant
Gallia App. No. 20CA14 17
had followed through and presented as required on the arraignment hearing
date. Nothing at this hearing indicated competency as an issue.
{¶33} Appellant first asserted his rights as a Moorish American at a
June 11, 2020 pretrial. Thereafter, the record reveals that although
Appellant claimed his name was “Shawn Christopher Simon Bey,” railed
against his former appointed counsel, and made his jurisdictional and
“syntax” arguments during the remainder of the trial court proceedings,
Appellant would also leave each hearing with polite words for the trial court.
Throughout the trial court proceedings Appellant had the presence of mind
to attend each court date and to file documents in the clerk’s office.6 Most
convincing, Appellant had the presence of mind to request continuances all
along the way and to file voluminous documents just prior to hearings,
necessitating further delay in order for the prosecutor to have an opportunity
to review and respond.
{¶34} Based upon our review of the record, we do not find
Appellant’s argument that the trial court should have sua sponte ordered him
to undergo a competency evaluation to have merit. We do not find the trial
6
Actually, through his filings, Appellant made it clear that he would not submit to a psychiatric evaluation.
Appellant filed a document on June 22, 2020, which states:
I, Shawn Christopher Simon Bey and all Moorish American Nationals are competent to
present ourselves and declare our lawful Executorship and Beneficiary offices and will
not submit to psychiatric evaluations by foreign court venue agents.
Gallia App. No. 20CA14 18
court abused its discretion in failing to sua sponte order a competency
evaluation. Rather, we view Appellant’s espousal of Moorish American
identity and uncooperative behavior throughout the trial court proceedings as
a possible delay tactic. Deference on determination of competency issues
should be given “to those who see and hear what goes on in the courtroom.”
State v. Were, 118 Ohio St. 3d 448, 2008-Ohio-2762, 890 N.E.2d 263, at
¶ 46; State v. Cowans, 87 Ohio St.3d 68, 84, 717 N.E.2d 298 (1999). Even
if the record supporting our conclusion here was not as convincing as we
find it to be, we would likely defer to the trial court’s assessment of the need
for any competency evaluation, based upon her ability to see and hear what
went on during the trial court proceedings. Accordingly, the second
assignment of error is overruled.
{¶35} We now turn to Appellant’s first assignment of error. Under
the first assignment of error, Appellant raises several arguments in support
of his assertion that his waiver of counsel was not made knowingly and
intelligently. First, Appellant argues that the trial court erred when it
accepted his waiver of counsel without discussing possible defenses or
circumstances in mitigation with him. Second, Appellant argues the trial
court’s discussion with him regarding waiver occurred after he had
proceeded without counsel at the suppression hearing. Finally, Appellant
Gallia App. No. 20CA14 19
asserts that his defense of his crimes based on arguments regarding syntax
demonstrates that under the totality of circumstances his waiver was not
knowing and intelligent. For the reasons which follow, we disagree.
STANDARD OF REVIEW
{¶36} “The Sixth Amendment to the United States Constitution
provides that criminal defendants shall have the right to the assistance of
counsel for their defense.” State v. Bristow, 4th Dist. Scioto Nos. 07CA3186
and 07CA3187, 2009-Ohio-523, ¶ 12; see also Article I, Section 10 of the
Ohio Constitution. Because a defendant also has the right of self-
representation, he may “ ‘defend himself without counsel when he
voluntarily, and knowingly and intelligently elects to do so.’ ” State v.
Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, ¶ 24,
quoting State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976),
paragraph one of the syllabus. “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.”
Bristow at ¶ 12, citing Gibson at paragraph two of the syllabus.
{¶ 37} Crim.R. 44 provides in pertinent part:
(A) Counsel in Serious Offenses. Where a defendant
charged with a serious offense is unable to obtain
counsel, counsel shall be assigned to represent the
defendant at every stage of the proceedings from
Gallia App. No. 20CA14 20
their initial appearance before a court through appeal
as of right, unless the defendant, after being fully
advised of their right to assigned counsel,
knowingly, intelligently, and voluntarily waives
their right to counsel.
***
(C) Waiver of Counsel. Waiver of counsel shall be in
open court and the advice and waiver shall be
recorded as provided in Rule 22. In addition, in
serious offense cases the waiver shall be in writing.
See also, State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d
1024, paragraph two of the syllabus. However, with respect to the written
waiver rule provision, the trial court need only show substantial compliance.
That is, the trial court must make sufficient inquiry to determine whether the
defendant fully understood and intelligently relinquished the right to
counsel. Martin at ¶¶ 38-39.
{¶38} “ ‘ “There is no single, definitive test to determine whether a
defendant voluntarily, knowingly, and intelligently waives the right to
counsel.” ’ ” State v. Tilley, 4th Dist. Jackson No. 17CA1, 2018-Ohio-2922,
at ¶13, quoting State v. Weddington, 4th Dist. Scioto No. 13CA3560, 2014-
Ohio-1968, ¶ 14, quoting State v. Mootispaw, 4th Dist. Highland No.
09CA33, 2010-Ohio-4772, ¶ 21. “Instead, appellate courts should conduct a
de novo review and independently examine the record to determine whether
Gallia App. No. 20CA14 21
the totality of the circumstances demonstrates a knowing, intelligent, and
voluntary waiver of the defendant's right to counsel.” Id.LEGAL ANALYSIS
{¶39} The Supreme Court of Ohio explained what the trial court
should do to assure a valid waiver of the right to counsel in a serious offense
case:
“To discharge this duty properly in light of the strong
presumption against waiver of the constitutional right to
counsel, a judge must investigate as long and as
thoroughly as the circumstances of the case before him
demand. The fact that an accused may tell him that he is
informed of his right to counsel and desires to waive this
right does not automatically end the judge's
responsibility. 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.”
State v. Gibson, 45 Ohio St.2d 366, 377, 345 N.E.2d 399, quoting Von
Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, (1948); Tilley, at ¶ 16.
Furthermore, for a defendant to “competently and intelligently * * * choose
self-representation, he should be made aware of the dangers and
disadvantages of self-representation, so that the record will establish that ‘he
knows what he is doing and his choice is made with eyes open.’ ” Faretta v.
California, 422 U.S. 806, 835, 95 S.Ct. 2525 (1975), quoting Adams v.
Gallia App. No. 20CA14 22
United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236 (1943);
Mootispaw, at ¶ 20; Tilley, at ¶ 17.
{¶40} Again, this case is very similar to Tucker, supra. On appeal,
Tucker asserted that the record was replete with assertions of his fringe
political views and demonstrates that he did not actually understand the
nature and conduct of the proceedings against him. Furthermore, Tucker
emphasized that the trial court did not obtain a written waiver of the right to
counsel as required by Crim.R. 44(C). Again, the Ninth District Court was
not persuaded.
{¶41} The Tucker court acknowledged from the outset that Tucker’s
case did not present a “textbook example” of the colloquy between a trial
court and defendant as to waiver of counsel. The appellate court cited
Tucker’s repeated frustrations of the court’s attempt to engage him in
dialogue about his waiver by refusing to answer questions, posing
objections, and insisting he was not subject to the jurisdiction of the court.
The court noted:
[W]e observe that cases discussing waiver of counsel and
self-representation ‘presuppose[] a cooperative defendant
willing to engage in reciprocal dialogue with the court’
rather than ‘an uncooperative defendant [who] has
refused to accept appointed counsel or engage in a
colloquy with the court.’ United States v. Garey, 540
F.3d 1253, 1263 (11th Cir.2008).
Gallia App. No. 20CA14 23
See Tucker, at ¶ 14. The Tucker court concluded that the totality of the
circumstances demonstrated that, faced with an unusual situation and an
uncooperative defendant, the trial court substantially complied with the
requirements of Crim.R. 44(A), and the failure to obtain a written waiver
was harmless. Id. at ¶ 20.7 An uncooperative defendant refusing to engage
in effective colloquy is exactly what the common pleas trial court in Gallia
County faced.
{¶42} Based upon our de novo review of the entire record, we are not
persuaded that Appellant’s waiver of his right to counsel was not voluntary,
knowing, and intelligent. While Appellant’s counsel focuses on only the
attempted colloquy with Appellant one week prior to trial, the record reveals
that from the first instance wherein Appellant expressed his desire to
terminate his court-appointed counsel and represent himself, every step of
the way the trial court reminded Appellant he was facing “significant felony
charges.”8 The trial court also provided counsel as “standby” for Appellant
7
See State v. Hollowell, 6th Dist. Lucas No. L-18-1087, 2019-Ohio-2644, (Assertions that the trial court
failed in its legal obligation with respect to advising Hollowell, a member of the “Tar Tar” tribe of the
Moorish Nation, of rights and options were wholly without merit where the record unambiguously reflects
the trial court went to great lengths in connection to the provision of legal counsel). See also State v.
Robinson, 1st Dist. Hamilton No. C-150346, 2016-Ohio-3330, (Where Robinson proclaimed immediately
prior to trial that he was a Moorish American and wanted to proceed pro se and the trial court engaged in a
thorough and candid discussion about self-representation, appellate court found Robinson’s waiver of
counsel intelligent as he “knew what he was doing and his choice was made with eyes open.”)
8
These dates include arraignment, January 6, 2020; pretrial, June 11, 2020; status hearing, June 22, 2020;
status hearing, July 30, 2020; suppression hearing, August 5, 2020; and final pretrial hearing, August 14,
2020.
Gallia App. No. 20CA14 24
throughout the proceedings and reminded him of counsel’s availability at
each hearing.
{¶43} Finally, at the August 14, 2020 status hearing, the trial court
engaged in a lengthy hour-long colloquy with appellant. The hearing
transcript demonstrates that the trial court advised Appellant of his right to
counsel, appointed or retained; his right to represent himself; the benefit of
having legal counsel; that he was facing first-degree felony charges; that
representing himself might cause the jury to have a negative feeling against
him; that the Court cannot function as his lawyer or provide legal assistance;
that he would be held to the same standard as any lawyer; that the court
could not give him assistance during the trial; that he would not be able to
raise ineffective assistance on appeal; that the issues for appeal are preserved
at trial through objections; the elements of the charges; the potential
penalties and mandatory nature of the penalties; that he would not be eligible
for community control and prison programming; and that Appellant faced
the highest levels of charges possible under Ohio law. The trial court
inquired as to whether Appellant had reviewed the Ohio Rules of Evidence
and the Ohio Rules of Criminal Procedure and whether he had represented
himself before at a jury trial. The court specifically informed Appellant that
she felt it unwise for Appellant to continue to represent himself. She also
Gallia App. No. 20CA14 25
inquired whether Appellant was making the decision to represent himself of
his own free choice and was not being pressured by his religion. She also
stated she would respect Appellant’s religious beliefs “to the extent
possible.” All this information is found in the court’s entry.
{¶44} The transcript and entry reflect that during the hearing the
court also attempted to obtain a specific written waiver of representation
from the Defendant. The waiver was attached to the entry as Exhibit A. The
record verifies that Defendant refused to sign the waiver, but that the trial
court addressed each item in the waiver on the record with the Defendant
who affirmed that each of the items had been addressed.
{¶45} Based on our de novo review of the record, we find no merit to
Appellant’s assertion that his waiver of the right to counsel was invalid. As
in Tucker, the totality of the circumstances demonstrates that “faced with an
unusual situation and an uncooperative defendant,” the trial court complied
with the requirements of Crim.R. 44(A). While Tucker found substantial
compliance, here we can find the trial court strictly complied.
{¶46} And while Appellant argues that he was not advised about his
possible defenses and his weak “syntax” argument, the trial court’s entry
supports a different view. The court’s entry states:
The Court informed the Defendant that his defense is not
strong. As a defense, Defendant asserts that the
Gallia App. No. 20CA14 26
documents filed by the State and relied upon (including
the Trooper’s report) are fraudulent because of improper
syntax. The Court informed Defendant that his theory of
the proper use of syntax is not binding upon the courts *
* *.
Appellant was given sufficient information to explore other possible
defenses besides “improper syntax.”
{¶47} Finally, while Appellant complains that the colloquy which
occurred on August 14th should have occurred prior to suppression, we find
no merit to this argument. As indicated above, beginning on June 11th, well
prior to the August 5th suppression hearing, Appellant demonstrated a
determination to represent himself. Then, on June 17, 2020, Appellant filed
“The Moorish Zodiac Constitution” which provided at Article VII that
“lawyers cannot represent free Moorish Americans.” In another document
filed June 22, 2020, captioned “Affidavit of Notice and Order,” Appellant
asserted “I, Shawn Christopher Simon Bey and all Moorish American
Nationals rebut and reject the representation of all barristers, attorneys, and
foreign law persons of the Roman Court venues.” There is no reason for the
trial court to have believed that had the trial court engaged in a lengthier
discussion with Appellant prior to the suppression that Appellant would
have accepted legal representation he so vociferously opposed.
Gallia App. No. 20CA14 27
{¶48} The State also noted during the trial court’s colloquy that
Appellant had prior charges in various courts, including federal drug
charges, and had served a prior prison sentence. As in Robinson, the record
reflects Appellant’s decision to proceed pro se with his eyes “wide open.”
At every step of the way, the trial court advised against self-representation,
urged Appellant to utilize appointed counsel, and reminded him standby
counsel was available if he had questions. Our decision is also consistent
with those in Toledo v. Dandridge, 6th Dist. Lucas No. L-11-1333, 2013-
Ohio-317, (wherein the appellate court found that despite Dandridge’s
purported status as a Moorish American National, Dandridge’s choice to
make nonsensical arguments and proceed without counsel was his own
informed choice); and State v. Auto Revere, 8th Dist. Cuyahoga No. 108386,
2020-Ohio-572, (wherein appellate court found Revere’s Moorish American
citizenship claim did not render his plea invalid).
{¶49} Based on the foregoing, we find no merit to Appellant’s first
assignment of error and it is hereby overruled.
{¶50} Having found no merit to either of Appellant’s assignments of
error, the judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Gallia App. No. 20CA14 28
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Gallia County Common Pleas Court to carry this judgment into
execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed 60 days upon the bail previously posted. The purpose of a continued
stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a
stay is continued by this entry, it will terminate at the earlier of the
expiration of the 60-day period, or the failure of the Appellant to file a notice
of appeal with the Supreme Court of Ohio in the 45-day appeal period
pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of
Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior
to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Abele, J. and Hess, J. Concur in Judgment and Opinion.
For the Court,
______________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.