[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                      :
                                                 :

                                            ...........

                                           OPINION

                            Rendered on the 28th day of August, 2015.

                                            ...........

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

                                           .............




WELBAUM, J.
                                                                                         -2-



       {¶ 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
                                                                                        -4-
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
                                                                                               -5-
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
                                                                                        -6-
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
                                                                                       -7-
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.
                                                                                         -8-
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
                                                                                      -9-
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.

                                    .............



FROELICH, P.J. and HALL, J., concur.



Copies mailed to:

Joshua T. Shaw
Rebekah S. Sinnott
David N. Root
Hon. Christopher D. Roberts
