State v. Stiltner , 2019 Ohio 4631 ( 2019 )


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  • [Cite as State v. Stiltner, 2019-Ohio-4631.]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    DEFIANCE COUNTY
    STATE OF OHIO,
    CASE NO. 4-19-08
    PLAINTIFF-APPELLEE,
    v.
    BRANDON M. STILTNER,                                    OPINION
    DEFENDANT-APPELLANT.
    Appeal from Defiance County Common Pleas Court
    Trial Court No. 18-CR-13411
    Judgment Reversed and Cause Remanded
    Date of Decision: November 12, 2019
    APPEARANCES:
    Sarah R. Anjum for Appellant
    Russell R. Herman for Appellee
    Case No. 4-19-08
    WILLAMOWSKI, J.
    {¶1} Defendant-appellant Brandon M. Stiltner (“Stiltner”) brings this appeal
    from the judgment of the Court of Common Pleas of Defiance County entering a
    judgment of guilty of aggravated possession of drugs. Stiltner argues on appeal that
    the trial court erred by 1) not conducting a proper waiver of counsel colloquy and
    2) by not sua sponte ordering a competency exam. For the reasons set forth below,
    the judgment is reversed.
    Factual and Procedural Background
    {¶2} On December 11, 2018, a vehicle in which Stiltner was a passenger was
    stopped. The driver was found to be driving under suspension. Due to the driver’s
    recent drug history, a canine was summoned to the scene and a vehicle walk around
    was conducted. The dog alerted to drugs on the passenger side of the vehicle. A
    search of Stiltner turned up methamphetamine and drug paraphernalia. When
    questioned about the items, Stiltner claimed they were not his but refused to identify
    the owner. Stiltner was then arrested for possession of drugs.
    {¶3} On January 10, 2019, the Defiance Grand Jury indicted Stiltner on one
    count of Aggravated Possession of Drugs in violation of R.C. 2925.11(A)(C)(1)(b),
    a felony of the third degree. Doc. 2. The trial court found Stiltner to be indigent
    and appointed Attorney Jeffrey Horvath (“Horvath”) for him. Doc. 25. On January
    18, 2019, Sitltner entered a plea of not guilty to the charge in the indictment. Doc.
    6. That same day, Horvath filed a motion for leave to withdraw as counsel. Doc.
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    Case No. 4-19-08
    7. The basis for the motion was that Stiltner wanted new counsel. 
    Id. On January
    28, 2019, the trial court granted Horvath’s motion to withdraw. Doc. 8. Attorney
    John C. Vigorito (“Vigorito”) then appointed on February 4, 2019, as counsel for
    Stiltner. Doc. 12. On March 5, 2019, Vigorito filed a motion to withdraw as
    counsel. Doc. 20. The basis for the motion was that Stiltner had terminated Vigorito
    as his attorney, which caused a breakdown in attorney/client communication. Id
    The trial court granted the motion to withdraw without a hearing. Doc. 21.
    {¶4} On March 21, 2019, a pretrial hearing was held at which Stiltner
    appeared without counsel. Doc. 39. At that time, the trial court addressed Stiltner’s
    lack of attorney. Tr. 3-8. The trial court even suggested that counsel could be
    appointed merely to advise Stiltner of legal procedures. Tr. 8-9. Stiltner was not
    interested. Tr. 8-13 When asked what he wished to do, Stiltner responded as
    follows.
    All I know is I got my discovery right here. I know what it says
    and I can’t hire a lawyer from being in jail. So see you at trial.
    Tr. 13. The trial court then once again tried to explain to Stiltner why he needed
    counsel to help him with procedural matters. Tr. 15-17. The trial court specifically
    informed him of his right to counsel.
    The Court: * * * I cannot do things on your behalf to help you
    try your case. I can tell you that you’re entitled to a lawyer that
    you’re entitled to a court appointed lawyer if you don’t have the
    money to hire one. I can tell you that it’s – I’ve been at this
    thirtyish years. It’s a really bad idea to represent yourself unless
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    Case No. 4-19-08
    you actually know what you’re doing. Cause you can step in it
    and there are bad consequences.
    The Defendant: Well, I can speak up and talk for myself like the
    other two lawyers couldn’t. So – all due respect, Your Honor, I’m
    going in by myself.
    Tr. 18. When Stiltner mentioned that he had previously suffered brain damage that
    left him “a little mixed up”, the trial court again noted that it would be a good idea
    for him to have counsel to assist him. Tr. 20. Stiltner kept insisting he would
    represent himself until he was asked to sign the waiver of counsel. Tr. 27. Stiltner
    then refused to sign the waiver. Tr. 27. The trial court and Stiltner then discussed
    signing the waiver during which the trial court determined Stiltner’s competency to
    stand trial was in question. Tr. 28-29.
    The Defendant: I’m not trying to make you mad –
    The Court: At this point –
    The Defendant: -- but I’m not understanding –
    The Court: -- the Court determines the defendant’s competency
    to stand trial is in question. In order to proceed with a criminal
    trial, Mr. Stiltner, the Court has to believe that you are capable
    of understanding the nature of the proceedings against you and
    assisting in your own defense. That is a legal term of art.
    Understand the nature of the proceedings against you and being
    able to assist in your own defense. Unless I am convinced that
    that is the case I would have to find you not competent to stand
    trial.
    If you are found not competent to stand trial the Court will either
    find you not competent and capable of being restored to
    competency within one year, in which case you would be referred
    for treatment to restore you to competency. Or on the other side,
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    Case No. 4-19-08
    find you incompetent to stand trial and not restoreable within a
    reasonable period, in which case you would be committed to the
    mental health facility to be held in the least restrictive
    environment consistent with public safety for a period that is
    determined by the nature and seriousness of the charge.
    The Defendant: (Whereupon, the Defendant executes the waiver
    of counsel.)
    Tr. 28-29. At no point in time did the trial court make a finding that the waiver of
    counsel was knowing, intelligent, or voluntary. The trial court also did not make a
    finding that Stiltner was competent.
    {¶5} On April 4, 2019, a trial was held. Doc. 41. At the conclusion of the
    trial, the jury found Stiltner guilty of aggravated possession of drugs equal to or
    greater than the bulk amount. Doc. 26. The trial court immediately proceeded to
    sentencing and ordered Stiltner to serve a prison term of thirty months. Doc. 27.
    Stiltner subsequently filed a timely notice of appeal. Doc. 28. On appeal, Stiltner
    raises the following assignments of error.
    First Assignment of Error
    The trial court erred and deprived Mr. Stiltner of his right to
    counsel under the Sixth and Fourteenth Amendments of the
    United States Constitution and Section 10, Article 1 of the Ohio
    Constitution as the court failed to ensure that Mr. Stiltner had
    made a voluntary, knowing, and intelligent waiver of his right to
    counsel.
    Second Assignment of Error
    The trial court erred by not ordering a competency exam for Mr.
    Stiltner.
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    Case No. 4-19-08
    Waiver of Counsel
    {¶6} Stiltner argues in the first assignment of error that the trial court
    erroneously accepted the waiver of counsel without adequately warning him of the
    consequences.
    “The constitutional right of an accused to be represented by
    counsel invokes, of itself, the protection of a trial court, in which
    the accused – whose life or liberty is at stake is without counsel.
    This protecting duty imposes the serious and weighty
    responsibility upon the trial judge of determining whether there
    is an intelligent and competent waiver by the accused.” 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.
    Von Moltke v. Gillies, 
    332 U.S. 708
    , 723-24, 
    68 S. Ct. 316
    , 
    92 L. Ed. 309
    (1948),
    quoting Johnson v. Zerbst, 
    304 U.S. 458
    , 465, 
    58 S. Ct. 1019
    , 
    82 L. Ed. 1461
    (1938).
    See also State v. Gibson, 
    45 Ohio St. 2d 366
    , 
    345 N.E.2d 399
    (1976), State v. Martin,
    
    103 Ohio St. 3d 385
    , 2004-Ohio-5471, 
    816 N.E.2d 227
    , and In re C.B., 3d Dist.
    Auglaize Nos. 2-11-13, 2-11-14, 2012-Ohio-5143, ¶ 7.         Generally, there is a
    presumption against the waiver of counsel and the State bears the burden of proving
    that the waiver was valid. State v. Jackson, 3d Dist. Seneca No. 13-14-30, 2015-
    Ohio-1694, ¶ 4.
    -6-
    Case No. 4-19-08
    {¶7} A review of the record in this case shows that at the hearing where the
    waiver of counsel occurred, Stiltner appeared without counsel as the motion of
    counsel to withdraw had been granted 16 days before the hearing. The trial court
    tried to find another attorney to represent the defendant, but Stiltner kept insisting
    he would not be comfortable with an attorney he did not know. Tr. 3-6. Eventually,
    Stiltner said he “guess[ed] [he would] stand up for [himself].” Tr. 6. The trial court
    repeatedly told Stiltner that representing himself was a bad idea. Tr. 6,9,10, 12, 15.
    Specifically, the trial court told him “it’s a really bad idea to represent yourself
    unless you actually know what you’re doing. Cause you can step in it and there are
    bad consequences.” Tr. 18. However, the record shows that Stiltner kept going
    back and forth saying he wanted an attorney and also saying he would represent
    himself. When asked to sign the waiver of counsel, Stiltner refused to do so. He
    stated that he was not signing it because he wanted to hire an attorney. Tr. 27. The
    dialogue between Stiltner and the trial court continued until finally the trial court
    stated that it had determined that Stiltner’s competency to stand trial was in
    question. Tr. 29. Upon hearing that he might be subjected to a competency
    evaluation, Stiltner signed the waiver without comment. However, the trial court
    never found that Stiltner was competent to do so. On the contrary, as noted earlier,
    the trial court specifically stated on the record that it had determined Stiltner’s
    competency to be in question. If Stiltner was not competent to stand trial, he would
    also lack the competence to waive counsel. Accepting the plea after making a
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    Case No. 4-19-08
    determination on the record that Stiltner may lack competence to stand trial without
    addressing the issue calls into question the knowing, intelligent, and voluntariness
    of the waiver. Since the presumption is against a valid waiver, this Court finds that
    the acceptance of the waiver by the trial court in this case was an abuse of its
    discretion. The first assignment of error is sustained.
    Competency to Stand Trial
    {¶8} In the second assignment of error, Stiltner claims that the trial court
    erred by failing to order a competency exam and hold a hearing on his competency
    after determining that his competency was at issue. The issue of competency to
    stand trial is controlled by R.C. 2945.37.
    (B) In a criminal action in a court of common pleas * * *, the
    court, prosecutor, or defense may raise the issue of the
    defendant’s competence to stand trial. If the issue is raised before
    the trial has commenced, the court shall hold a hearing on the
    issue as provided in this section. If the issue is raised after the
    trial has commenced, the court shall hold a hearing on the issue
    only for good cause shown or on the court’s own motion.
    (C) The court shall conduct the hearing required or authorized
    under division (B) of this section within thirty days after the issue
    is raised, unless the defendant has been referred for evaluation in
    which case the court shall conduct the hearing within ten days
    after the filing of the report of the evaluation * * *.
    (D) The defendant shall be represented by counsel at the hearing
    conducted under division (C) of this section. If the defendant is
    unable to obtain counsel, the court shall appoint counsel under
    Chapter 120. of the Revised Code or under the authority
    recognized in division (C) of section 120.06, division (E) of section
    120.16, division (E) of section 120.26, or section 2941.51 of the
    Revised Code before proceeding with the hearing.
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    Case No. 4-19-08
    R.C. 2945.37. Once the issue of competency is raised prior to trial, the statutory
    language mandates a hearing is held. Additionally, the statute further requires that
    a defendant be represented by counsel at the hearing. R.C. 2945.37(D).
    “Fundamental principles of due process require that a criminal
    defendant who is legally incompetent shall not be subjected to
    trial.” State v. Berry, 
    72 Ohio St. 3d 354
    , 359, 
    650 N.E.2d 422
           (1995). The measure of competency in this context is wheter a
    defendant “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.” Dusky v. United States, 
    362 U.S. 402
    ,
    
    80 S. Ct. 788
    , 
    4 L. Ed. 2d 824
    (1960). “[W]hen there is evidence to
    create a sufficient doubt of a defendant’s competency to stand
    trial, a trial court may be required to conduct further inquiry on
    the question and a trial court must always be alert to
    circumstances suggesting that the accused may be incompetent to
    stand trial.” State v. Corethers, 
    90 Ohio App. 3d 4298
    , 433, 
    629 N.E.2d 1052
    (8th Dist. 1993), citing Drope v. Missouri, 
    420 U.S. 162
    ,
    177, 180, 
    95 S. Ct. 896
    , 
    43 L. Ed. 2d 103
    (1975). “An evidentiary
    competency hearing is constitutionally required whenever there
    is sufficient indicia of incompetency to call into doubt defendant’s
    competency to stand trial.” State v. Were, 
    94 Ohio St. 3d 173
    , 
    761 N.E.2d 591
    (2002), paragraph two of the syllabus.
    State v. Tucker, 2016-Ohio-1353, ¶ 5, 
    62 N.E.3d 903
    (9th Dist.). “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.’” 
    Id. at ¶
    6 quoting State v. Rubenstein, 
    40 Ohio App. 3d 57
    , 60-61, 
    531 N.E.2d 738
    (8th Dist.
    -9-
    Case No. 4-19-08
    1987). Absent indicia of incompetency, however, the trial court need not hold a
    competency hearing. State v, Bock, 
    28 Ohio St. 3d 108
    , 
    502 N.E.2d 1016
    (1986).
    {¶9} As discussed above, the issue of competency is intertwined with the
    waiver of counsel. This issue will need to be addressed by the trial court upon
    remand as the trial court has determined that it is an issue. The trial court will need
    to make a determination as to whether a hearing is required based upon the indicia
    of incompetency before it. Until the trial court makes this determination, this Court
    has nothing to review. Thus, the assignment of error is rendered moot and this Court
    will not address this assignment of error at this time. App.R. 12(A)(1)(c).
    {¶10} Having found prejudice in the particulars assigned and argued in the
    first assignment of error, the judgment of the Court of Common Pleas of Defiance
    County is reversed and remanded for further proceedings in accord with this
    opinion.
    Judgment Reversed
    And Cause Remanded
    ZIMMERMAN, P.J. and SHAW, J., concur.
    /hls
    -10-
    

Document Info

Docket Number: 4-19-08

Citation Numbers: 2019 Ohio 4631

Judges: Willamowski

Filed Date: 11/12/2019

Precedential Status: Precedential

Modified Date: 11/12/2019