[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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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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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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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.
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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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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.
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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
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