[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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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.

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       {¶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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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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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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