[Cite as State v. Overton, 2013-Ohio-3590.]


                                        COURT OF APPEALS
                                     MORROW COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :      JUDGES:
                                              :
                                              :      Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                  :      Hon. Patricia A. Delaney, J.
                                              :      Hon. Craig R. Baldwin, J.
                                              :
-vs-                                          :
                                              :
DANIEL W. OVERTON                             :      Case No. 12CA0019
                                              :
                                              :
        Defendant - Appellant                 :      OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Morrow County
                                                     Court of Common Pleas, Case No.
                                                     2009-CR-0133




JUDGMENT:                                            Reversed and Remanded




DATE OF JUDGMENT:                                    August 5, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

TOM C. ELKIN                                         WILLIAM T. CRAMER
Morrow County Assistant Prosecutor                   470 Olde Worthington Road
60 East High Street                                  Suite 200
Mt. Gilead, OH 43338                                 Westerville, OH 43082
Morrow County, Case No. 12CA0019                                                         2



Baldwin, J.


        {¶1}     Appellant Daniel W. Overton appeals a judgment of the Morrow County

Common Pleas Court revoking his community control and sentencing him to a

previously suspended sentence of three years incarceration. Appellee is the State of

Ohio.

                              STATEMENT OF FACTS AND CASE

        {¶2}     In 2009, appellant was convicted upon a plea of guilty of one count of

illegal use of a minor in nudity oriented material (R.C. 2907.323) and tampering with

evidence (R.C. 2921.12(A)(1)). He was sentenced to 11 months incarceration for use of

a minor in nudity oriented material and three years incarceration for tampering with

evidence. The sentences were to run concurrently, and were both suspended on the

condition that appellant successfully complete a five year community control sanction.

        {¶3}     A motion to revoke appellant’s community control was filed in April of

2012, alleging that appellant refused recommended treatment from Central Ohio Mental

Health.        Counsel was appointed to represent appellant.    Appellant requested a

competency evaluation in May of 2012.          Following this evaluation, appellant was

conveyed to Twin Valley Behavioral Health Care (hereinafter “Twin Valley”) until he

could be restored to competency.

        {¶4}     On August 10, 2012, the State filed a supplemental motion to revoke

appellant’s community control sanction. The motion to revoke alleged that after being

ordered to surrender inappropriate DVD’s in his possession at Twin Valley, he punched,

kicked, bit and spit on Twin Valley staff. The motion further alleged that appellant’s
Morrow County, Case No. 12CA0019                                                         3


mother had called his probation officer to report that when cleaning out appellant’s

apartment, she found a large collection of pornographic magazines and DVD’s.          The

court found appellant competent to proceed on August 13, 2012, after receiving a report

from Twin Valley staff which indicated that appellant did not need further hospitalization.

The court set a merit hearing for September 13, 2012.

      {¶5}   Although represented by counsel, appellant filed a plethora of pro se

motions between August, 2012, and the date of the merit hearing: motion to remove

Donald Wick as counsel, motion to remove Charles Howland as prosecutor, proof of

conflict of interest, motion for discovery, motion to change venue, motion for further

investigation, motion to suppress, motion to dismiss, motion to be released, and motion

to revoke power of attorney. At the start of the hearing, the court addressed appellant’s

motion to remove his counsel and allowed appellant to proceed pro se, with standby

counsel.

      {¶6}   The hearing was not completed on September 13, and continued on

November 1, 2012. Between these dates, appellant filed pro se motions for habeus

corpus, a motion to dismiss, and a motion for a conference with the prosecutor.

      {¶7}   At the end of the hearing, the court found that appellant had violated the

terms of his community control by refusing recommended treatment from Central Ohio

Mental Health, physically attacking staff at Twin Valley, and possessing pornographic

material. The court revoked appellant’s community control and imposed the previously

suspended sentence of three years incarceration. Appellant assigns a single error to

this court on appeal:
Morrow County, Case No. 12CA0019                                                             4


      {¶8}     “APPELLANT’S       RIGHTS      TO     COUNSEL        UNDER      THE     SIXTH

AMENDMENT TO THE U.S. CONSTITUTION AND THE OHIO CONSTITUTION,

ARTICLE I, SECTION 10, WERE VIOLATED WHEN THE TRIAL COURT PERMITTED

HIM TO PROCEED PRO SE WITHOUT ENSURING THAT HIS WAIVER OF

COUNSEL WAS KNOWING, INTELLIGENT, AND VOLUNTARY.”

      {¶9}     The Sixth Amendment to the United States Constitution and Section 10,

Article I of the Ohio Constitution provide that a criminal defendant has a right to counsel.

A criminal defendant may waive his right to counsel, but an effective waiver requires the

court to make a sufficient inquiry to determine whether the defendant fully understands

and intelligently relinquishes the right to counsel. State v. Gibson, 45 Ohio St.2d 366,

345 N.E.2d 399, paragraph two of the syllabus (1976). The defendant must make an

intelligent and voluntary waiver with the knowledge he will have to represent himself,

and that there are dangers inherent in self-representation. State v. Ebersole , 107 Ohio

App.3d 288, 293, 668 N.E.2d 934 (1995), citing Faretta v. California, 422 U.S. 806, 95

S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      {¶10}    In Gibson, supra, the Ohio Supreme Court applied the test set forth in Von

Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), which established

the requirements for a sufficient pretrial inquiry by the trial court into a waiver of counsel:

      {¶11}    “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. A judge can make certain that an accused's
Morrow County, Case No. 12CA0019                                                             5


professed waiver of counsel is understandingly and wisely made only from a penetrating

and comprehensive examination of all the circumstances under which such a plea is

tendered.” Id. at 724.

      {¶12}    Crim.R. 44 also addresses the appointment of counsel and waiver of

counsel. This rule provides, in pertinent part, “Where a defendant charged with a

serious offense is unable to obtain counsel, counsel shall be assigned to represent him

at every stage of the proceedings from his initial appearance before a court through

appeal as of right, unless the defendant, after being fully advised of his right to assigned

counsel, knowingly, intelligently, and voluntarily waives his right to counsel.”

      {¶13}    Prior to inquiring into appellant’s desire to represent himself, the trial court

did explain the charges against him. The trial court engaged appellant in the following

colloquy as to his decision to waive counsel:

      {¶14}    “Unless there is good cause, my usual ruling on that is you get one court-

appointed counsel and if you don’t want that attorney to represent you, then you can be

pro se. You can represent yourself. I usually have that attorney on the sidelines, if

necessary, for you to consult with on technical legal matters. That’s pretty much the

way it is.

      {¶15}    “I guess it would make Mr. Wick’s life easier.          He would be on the

sidelines just observing and giving you advice on legal issues if you want it. I don’t

know that I can deny you your right to be your own attorney. There is an old saying,

maybe I shouldn’t say this, but I’m going to, for attorneys at least, an attorney who

represents himself has a fool for a client. That may be something that you might want

to consider.
Morrow County, Case No. 12CA0019                                                        6


      {¶16}   “MR. OVERTON: I also would like to say there is another saying if you

want something done right, you have got to do it yourself.

      {¶17}   “THE COURT: Well, you know –

      {¶18}   “MR. OVERTON: Mr. Wick I do not believe has been forthcoming as to

making a valiant effort as to helping me because every time I have called him, his

secretary has said he is on his way to come speak to me and he has not done so. He

has missed several appointments to which his – he himself has said and his secretary

has said and he has dodged the majority of the calls.

      {¶19}   “THE COURT: Okay. Well, you – you are asking to be pro se, but you

are asking for somebody else to be appointed and its, if you want to be pro se, like I

said, I can’t deny you the right to be pro se.”

      {¶20}   Tr. 11-12.

      {¶21}   The trial court did not make sufficient inquiry into appellant’s decision to

waive counsel. The court did not inquire into whether appellant understood the dangers

of self-representation, and did not inquire as to whether appellant understood the

defenses available to him and whether appellant had a broad understanding of the

issues in the case.

      {¶22}   The circumstances surrounding appellant’s waiver are particularly

troublesome because the court had previously found appellant to be incompetent to

stand trial, and appellant had only recently been restored to competency. Shortly after

the hearing began, standby counsel stated to the court that he had known appellant for

a substantial period of time, and he did not believe appellant was in the proper state of

mind to adequately represent himself at that time. Tr. 22. Upon further questioning by
Morrow County, Case No. 12CA0019                                                          7


the court, counsel stated that based on his contacts with appellant in the past, appellant

did not appear as capable of representing himself as he had at other times. Tr. 23. The

trial court understood counsel’s concerns, but ruled that he could not deny appellant the

right to appear pro se and told counsel to assist appellant with questions of law if

appellant requested his assistance.

      {¶23}   The court did not make sufficient inquiry into appellant’s waiver of his right

to counsel to ensure that the waiver was knowing, intelligent, and voluntary, particularly

in light of the concerns expressed by counsel concerning appellant’s mental state and

his recent restoration to competency.

      {¶24}   The assignment of error is sustained.
Morrow County, Case No. 12CA0019                                                8




      {¶25}   The judgment of the Morrow County Common Pleas Court is reversed,

and this case is remanded to that court for further proceedings. Costs assessed to

appellee.


By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.




                                     HON. CRAIG R. BALDWIN



                                     HON. WILLIAM B. HOFFMAN



                                     HON. PATRICIA A. DELANEY




CRB/rad
[Cite as State v. Overton, 2013-Ohio-3590.]


                   IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
        Plaintiff - Appellee                     :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
DANIEL W. OVERTON                                :
                                                 :
        Defendant - Appellant                    :       CASE NO. 12CA0019


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Morrow County, Ohio is reversed and

remanded. Costs assessed to appellee.




                                              HON. CRAIG R. BALDWIN



                                              HON. WILLIAM B. HOFFMAN



                                              HON. PATRICIA A. DELANEY
