[Cite as State v. Root,
2015-Ohio-3509.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 26393
:
v. : Trial Court Case No. 2014-CRB-5366
:
DAVID N. ROOT : (Criminal Appeal from Municipal Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 28th day of August, 2015.
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JOSHUA T. SHAW, Atty. Reg. No. 0087456, Assistant City Prosecutor, 335 West Third
Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
REBEKAH S. SINNOTT, Atty. Reg. No. 0072093, 115 North Main Street, Suite F,
Urbana, Ohio 43078
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, David N. Root, appeals from the conviction and
sentence he received in the Dayton Municipal Court after pleading guilty to one count of
receiving stolen property. In proceeding with the appeal, Root’s assigned counsel filed a
brief under the authority of Anders v. California, 386 U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d
493 (1967), indicating there are no issues with arguable merit to present on appeal.
After conducting a review as prescribed by Anders, we also find no issues with arguable
merit. Accordingly, the judgment of the trial court will be affirmed.
{¶ 2} On July 18, 2014, Root was charged by complaint with one count of theft in
violation of R.C. 2913.02(A)(1), as well as one count of receiving stolen property in
violation of R.C. 2913.51(A), both misdemeanors of the first degree. At his arraignment,
the trial court informed Root that he would be appointed counsel from the public
defender’s office and that a not-guilty plea would be entered on his behalf. Root then
attempted to address the court, but was ordered multiple times to step back and not
speak. Instead of complying, Root insisted that he should be able to speak and called
court personnel “damn idiots.” Arraignment Trans. (July 18, 2014), p. 4. Thereafter,
Root was removed from the courtroom for a brief moment and then brought back before
the court.
{¶ 3} Upon Root’s return, the trial court again ordered him to stop speaking and
explained that he was disrupting the proceedings and being disrespectful to court
personnel. In response, Root tried to explain himself and continued speaking despite
the trial court ordering him not to do so. As a result of his behavior, the trial court held
Root in contempt of court and sentenced him to five days in jail on the contempt finding.
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At the close of the proceeding, the defense counsel who was temporarily representing
Root at the arraignment indicated that Root’s competency may be an issue.
{¶ 4} After being appointed defense counsel and serving his five-day jail term, on
July 29, 2014, Root appeared in court and pled guilty to receiving stolen property in
exchange for the State dismissing the theft charge. The trial court then ordered a
presentence investigation report and continued Root’s bond pending the preparation of
the report and the sentencing hearing, which took place on August 19, 2014. At the
sentencing hearing, the trial court ordered Root to serve 180 days in jail, suspended 40 of
those days, and credited Root with 33 days already served for a total jail term of 107 days.
{¶ 5} On September 15, 2014, Root filed a notice of appeal from his conviction and
sentence and requested the appointment of appellate counsel. Following the
appointment of counsel, on April 17, 2015, Root’s appellate counsel filed an Anders brief
indicating that there were no issues with arguable merit to present on appeal. On April
21, 2015, we notified Root that his counsel found no meritorious claim for review and
granted him 60 days to file a pro se brief assigning any errors. Root did not file a pro se
brief.
{¶ 6} Our task in this case is to conduct an independent review of the record as
prescribed by Anders, 386 U.S. 738, 87 S .Ct. 1396,
18 L.Ed.2d 493. In Anders cases,
the appellate court must conduct a thorough examination of the proceedings to determine
if the appeal is actually frivolous, and if it is, the court may “grant counsel’s request to
withdraw and then dismiss the appeal without violating any constitutional requirements,
or the court can proceed to a decision on the merits if state law requires it.” State v.
McDaniel, 2d Dist. Champaign No. 2010 CA 13,
2011-Ohio-2186, ¶ 5, citing Anders at
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744. “If we find that any issue presented or which an independent analysis reveals is not
wholly frivolous, we must appoint different appellate counsel to represent the defendant.”
(Citation omitted.) State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242,
¶ 7.
{¶ 7} “Anders equated a frivolous appeal with one that presents issues lacking in
arguable merit. An issue does not lack arguable merit merely because the prosecution
can be expected to present a strong argument in reply, or because it is uncertain whether
a defendant will ultimately prevail on that issue on appeal.” State v. Pullen, 2d Dist.
Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. Rather, “[a]n issue lacks arguable merit
if, on the facts and law involved, no responsible contention can be made that it offers a
basis for reversal.”
Id.
{¶ 8} In conducting our independent review, Root’s appellate counsel has
requested that we consider three potential assignments of error, the first of which states:
THE TRIAL COURT ERRED [WHEN] IT FOUND THE DEFENDANT IN
CRIMINAL CONTEMPT OF COURT AND SENTENCED HIM TO FIVE
DAYS IN JAIL.
{¶ 9} Under the first potential assignment of error, Root’s counsel suggests that
the trial court may have abused its discretion in finding Root in contempt of court and
sentencing him to five days in jail. We find this claim lacks arguable merit, as it is moot
since Root completed his five-day jail term for the misdemeanor contempt charge.
{¶ 10} “[I]t is well settled that ‘where a criminal defendant, convicted of a
misdemeanor, voluntarily satisfies the judgment imposed on him or her for that offense,
an appeal from the conviction is moot unless the defendant has offered evidence from
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which an inference can be drawn that he or she will suffer some collateral legal disability
or loss of civil rights stemming from that conviction.’ ” State v. Choice, 2d Dist.
Montgomery No. 24622, 2012-Ohio-197, ¶ 8, quoting State v. Golston,
71 Ohio St.3d 224,
226,
643 N.E.2d 109 (1994), citing State v. Wilson,
41 Ohio St.2d 236,
325 N.E.2d 236
(1975), and State v. Berndt,
29 Ohio St.3d 3,
504 N.E.2d 712 (1987). See Springfield v.
Myers,
43 Ohio App.3d 21, 25-26,
538 N.E.2d 1091 (1988) (dismissing an appeal from a
direct contempt citation as moot because the sentence had already been served). “The
burden of proof is on the defendant to establish at least an inference that he will suffer
some collateral disability or loss of civil rights.” (Citations omitted.)
Myers at 26. In
this case, there is nothing in the record to suggest that Root will suffer any collateral
disability or loss of civil rights. Therefore, since Root completed his five-day jail term for
the contempt charge, we conclude that this issue is moot and lacks arguable merit.
{¶ 11} The second potential assignment of error raised by Root’s appellate
counsel is as follows:
THE TRIAL COURT ERRED WHEN IT DEPRIVED THE DEFENDANT OF
THE OPPORTUNITY [TO] REPRESENT HIMSELF AND PLEAD GUILTY
AT ARRAIGNMENT.
{¶ 12} Under the second potential assignment of error, Root’s counsel suggests
that Root may have invoked his right of self-representation at the arraignment hearing,
and if he did, the trial court erred in failing to give him the opportunity to represent himself
and plead guilty. We find this claim lacks arguable merit, as it is also moot since Root
eventually pled guilty and suffered no prejudice.
{¶ 13} In addition, “ ‘[t]he constitutional right of self-representation is waived if it is
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not timely and unequivocally asserted.’ ” State v. Cassano, 96 Ohio St.3d 94,
2002-Ohio-3751,
772 N.E.2d 81, ¶ 38, quoting Jackson v. Ylst,
921 F.2d 882, 888 (9th
Cir.1990). A request for self-representation is not unequivocal when made in the
manner of expressing frustration. State v. Neyland,
139 Ohio St.3d 353,
2014-Ohio-1914,
12 N.E.3d 1112, ¶ 73, citing Reese v. Nix,
942 F.2d 1276, 1281 (8th
Cir.1991). Additionally, “a request for self-representation is not unequivocal if it is a ‘
“momentary caprice or the result of thinking out loud[.]” ’ ”
Id., quoting
Jackson at 888,
quoting Adams v. Carroll,
875 F.2d 1441, 1445 (9th Cir.1989).
{¶ 14} In this case, counsel suggests that Root attempted to invoke his right to
self-representation when he made the following statements during his arraignment:
Mam I was just going to ask you, Mam. I am going to plead guilty to this as
soon as I can. I understand I was in possession of it. Ok, now I want to
plead guilty because I am guilty. And on that please let me talk today.
Please let me act by myself. You guys are only suppose[d] to act and tell
me what to say. You weren’t suppose[d] to talk for me. You don’t…it’s
not you. This is me. This is my freedom we’re talking about.
Arraignment Trans. (July 18, 2014), p. 5.
{¶ 15} We do not find that the foregoing statements unequivocally asserted Root’s
right to self-representation. Rather, these statements merely express Root’s frustration
with the fact that he was not being allowed to speak for himself at the arraignment. More
importantly, at no point in time did Root state that he did not want to be represented by
counsel. When the trial court advised Root that defense counsel would be appointed to
him from the public defender’s office, Root did not take any issue with having counsel
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appointed. For the foregoing reasons, the second potential assignment of error raised
by Root’s appellate counsel lacks arguable merit.
{¶ 16} The third and final potential assignment of error raised by Root’s appellate
counsel is as follows:
THE TRIAL COURT ERRED WHEN IT FAILED TO SUA SPONTE ORDER A
COMPETENCY HEARING.
{¶ 17} Under the third potential assignment of error, Root’s appellate counsel
suggests the trial court may have erred in failing to hold a competency hearing sua sponte
due to Root’s behavior at the arraignment and his temporary defense counsel’s statement
that competency may be an issue. We find that this claim lacks arguable merit as well.
{¶ 18} “Fundamental principles of due process require that a criminal defendant
who is legally incompetent may not be tried.” State v. Thomas, 97 Ohio St.3d 309, 315,
779 N.E.2d 1017 (2002), citing State v. Berry,
72 Ohio St.3d 354, 359,
650 N.E.2d 433
(1995). A defendant is presumed competent to stand trial unless it is proven, by a
preponderance of the evidence, that the defendant is incapable of understanding the
nature and objective of the proceedings or of assisting in his defense. R.C. 2945.37(G).
The prosecution, defense, or trial court may raise the issue of a defendant’s competence
to stand trial. R.C. 2945.37(B).
{¶ 19} A competency hearing is mandatory under R.C. 2945.37(B) only if the issue
of competency is raised prior to trial. State v. Smith, 89 Ohio St.3d 323, 329,
731 N.E.2d
645 (2000). The burden is on the defendant to put forth sufficient evidence to rebut the
presumption of competence. State v. Williams,
23 Ohio St.3d 16, 28,
490 N.E.2d 906
(1986); State v. Potchik, 2d Dist. Montgomery No. 23865,
2011-Ohio-501, ¶ 24.
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Whether to conduct a competency hearing sua sponte under R.C. 2945.37(B) is left to the
trial court’s discretion. Smith at 329. “A trial court must conduct a competency hearing
where there are sufficient indicia of incompetency to call into question the defendant’s
competency to stand trial.” Potchik at ¶ 24, citing
Berry at 359. “In determining whether
to sua sponte conduct a competency hearing the trial court should consider the following
factors: doubts expressed by defense counsel as to his client's competency, evidence of
irrational behavior, and any prior medical opinions known to the court concerning the
defendant’s competency.” (Citation omitted.) State v. Scurlock, 2d Dist. Clark No.
2002-CA-34,
2003-Ohio-1052, ¶ 76.
{¶ 20} We also note that incompetency is not “equated with mere mental or
emotional instability or even with outright insanity. A defendant may be emotionally
disturbed or even psychotic and still be capable of understanding the charges against him
and of assisting his counsel.” State v. Bock, 28 Ohio St.3d 108, 110,
502 N.E.2d 1016
(1986).
{¶ 21} In this case, the record establishes that Root did not display sufficient
indicia of incompetence during the trial court proceedings to warrant a competency
hearing. While Root’s behavior during the arraignment was disruptive, there were no
signs that Root did not understand the nature of the charges he was facing or that he was
unable to assist in his defense. In fact, Root demonstrated an understanding of the
receiving stolen property charge when he stated that: “I understand that I was in
possession of it. Ok, now I want to plead guilty because I am guilty. … Yes I was guilty
of possession of it.” Arraignment Trans. (July 18, 2014), p. 5 and 6. Although Root’s
temporary defense counsel raised a potential competency issue at the close of the
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arraignment, the counsel who was later appointed to Root from the public defender’s
office (who presumably spent more time with Root in assisting him negotiate his plea
agreement) never raised competency as an issue.
{¶ 22} Furthermore, Root’s behavior at both the plea and sentencing hearings also
did not exhibit sufficient indicia of incompetence, as there was again no indication that
Root was unable to understand the nature of those proceedings or assist in his defense.
Specifically, during the plea hearing, Root had no problem answering the trial court’s
questions and was even able to provide sufficient information to convince the court to
reduce his bond. Because Root did not display sufficient indicia of incompetence at any
of the trial court proceedings, the third potential assignment of error raised by Root’s
counsel lacks arguable merit.
{¶ 23} Having conducted an independent review of the record pursuant to Anders,
386 U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d 493, we agree with Root’s appellate counsel that
there are no issues with arguable merit to present on appeal. Accordingly, the judgment
of the trial court is affirmed.
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FROELICH, P.J. and HALL, J., concur.
Copies mailed to:
Joshua T. Shaw
Rebekah S. Sinnott
David N. Root
Hon. Christopher D. Roberts
